2022 AUSL Purples Notes Criminal Law and Practical Exercises

EXECUTIVE COUNCIL REA MAY G. HERMOSURA Chairperson

JANINE NICOLE C. ORCENA Vice Chairperson for Academics

SHASHLEY R. BERNARDEZ Vice Chairperson for Administration

CRISTOBAL N. RABINO Operations Head

TRISHA ALEXIS R. MAINGAT

JAYNIE P. PAJARILLAGA

Secretary

Creative Director

LANIE GRACE S. LIM

IRISH ANA A. SALINAS

Treasurer

Volunteer Core Head

GRACE PEREZ-SONIDO

TIMOTHY JAMES D. PACSON

Auditor

Ways and Means Officer

CRIMINAL LAW (AND PRACTICAL EXERCISES) COMMISSION Adrian G. dela Cruz

Dannah Francesca B. Mantuano

Commissioner

Subject Head – Crimes Under the Revised Penal Code (Revised Penal Code – Book 2)

Geron G. Bueno Deputy Commissioner

Ruby Ann M. Pardiñas Subject Head – Principles of Criminal Law (Revised Penal Code – Book 1)

Felix B. Tumbali Subject Head – Special Penal Laws (A-I)

Charisse Ayra C. Clamosa Subject Head – Special Penal Laws (J-QI)

Sarah Joy T. Bumanglag Armand Jerome B. Carada Michelle Ann S. Ferriol Benedick C. Garcia Ritz R. Merida Myra Andrea D. Olalia Miko Angelo U. Palmos Kane Eroll D. Pascual Maria Elena T. Pineda Trisha M. Tatlonghari Members

LEGAL ETHICS AND PRACTICAL EXERCISES COMMISSION Donald Adrian M. Castillo Commissioner

Nikka Mae B. Morales Deputy Commissioner

Ma. Dhelltria G. Garner Subject Head – Legal Ethics, Suspension, Disbarment and Discipline of Lawyers (Rule 139; Rule 139-B)

Mikyla Janiene V. Cordero Subject Head – Practical Exercises (Civil Law and Criminal Law)

Michael Renz Alambra Alyssa M. Aquino Araceli Marie M. De Guzman Gladys C. de Vera John Angelo M. Gabrillo Shiela May Noceda Jona B. Pranes John Louie Pariñas Joy Marie Sevilleno Lourdes Tuozo Gina B. Quintal Members

CENTER FOR LEGAL EDUCATION AND RESEARCH ATTY. RODERICK M. VILLOSTAS Director ATTY. ANTONY J. PARREÑO ATTY. LESTER NAZARENE V. OPLE ATTY. RICKSON M. BUENVIAJE Research Fellows BRANDO F. DE TORRES MARICAR S. ASUNCION Research Staff

PHILIPPINE COPYRIGHT This material is an intellectual creation of the Arellano Law Bar Operations Commission 2022. Any unauthorized reprint or use of this material is prohibited. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including but not limited to photocopying, recording, or by any information storage or retrieval system without the express written consent of both Arellano Law bar Operations Commission 2022 and the Arellano University School of Law.

TABLE OF CONTENTS I.

PRINCIPLE OF CRIMINAL LAW (Revised Penal Code – Book 1) A. General Principles ……………………………………………………………………………………………. 1. Mala in se and mala prohibita …………………………………………………………………..… 2. Applicability and effectivity of the RPC ............................................................ 3. Interpretation of penal laws ……………………………………………………………………..… 4. Retroactive effect of penal laws ………………………………………………………………….. B.

II.

Felonies …………………………………………………………………………………………..…………….. 1. Criminal Liabilities and felonies …………………………………………………………………… 2. Circumstances affecting criminal liability ……………………………………………………… 3. Persons liable and degree of participation …………………………………………………… 4. Penalties ………………………………………………………………………………………………….. 5. Execution and service of sentence ……………………………………………………………… 6. Extinction of criminal liability (as amended by R.A. No. 10592) ………………………. 7. Civil liability in criminal cases ……………………………………………….........................

1 1 2 7 7 9 9 21 56 68 86 93 96

CRIMES UNDER THE REVISED PENAL CODE (Revised Penal Code – Book 2) A. B. C. D. E. F. G. H. I. J. K. L. M.

Crimes against national security and laws of nations …………………………………………… Crimes against the fundamental law of the state …………………………………….............. Crimes against public order …………………………………………………………...................... Crimes against public interest ………………………………………………………...................... Crimes against public morals ……………………………………………………………………………. Crimes committed by public officers ………………………………………………………………….. Crimes against persons ……………………………………………………………………………………. Crimes against personal liberty and security ………………………………………………………. Crimes against property …………………………………………………………………………………… Crimes against chastity ……………………………………………………………………………………. Crimes against the civil status of persons …………………………………………………………… Crimes against honor ………………………………………………………………………………………. Quasi-offenses ………………………………………………………………………...........................

100 107 115 132 145 147 166 181 195 217 225 227 233

III. SPECIAL PENAL LAWS A. B. C. D. E. F. G. H. I.

Anti-Child Pornography Act of 2009 (Secs. 3[a-c], 4 and 5, R.A. No. 9775) ………….. Anti-Fencing Law of 1979 (Secs. 2 to 6, P.D. No. 1612) ……………………………………... Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended by R.A. No. 3047, P.D. No. 677, P.D. No. 1288, B.P. Blg. 195 and R.A. No. 10910) ………………….......... Anti-Hazing Act of 2018 (R.A. No. 8049, as amended by R.A. No. 11053) …………….. Anti-Money Laundering Act of 2001 (R.A. No. 9160) …………………………………………… Anti-Photo and Video Voyeurism Act of 2009 (Secs. 3 and 4, R.A. No. 9995) ……...... Anti-Plunder Act (Secs. 1, 2 and 6, R.A. No. 7080, as amended by R.A. No. 7659) ... Anti-Torture Act of 2009 (Secs. 3 [a-b], 4 and 5, R.A. No. 9745) …………………………. Anti-Trafficking in Persons Act of 2003 (Secs. 3 to 12, R.A. No. 9208) …………………..

235 237 239 243 247 251 252 254 259

J. K. L. M. N. O. P. Q. IV.

Anti-Violence Against Women and their Children Act of 2004 (Secs. 3, 5 and 26, R.A. No. 9262) ……………………………………………………………………………………………………….. Anti-Wire Tapping Act (Secs. 1 to 4, R.A. No. 4200) …………………………………………… Bouncing Checks Law (B.P. Blg. 22) ……………………………………………….................... Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165 as amended by R.A. No. 10640) ……………………………………………………………………………………………………… Cybercrime Prevention Act of 2012 (R.A. No. 10175) ………………………………………….. New Anti-Carnapping Act of 2016 (Secs. 3 to 4, R.A. No. 10883) …………………………. Special Protection of Children Against Abuse, Exploitation, and Discrimination Act (Secs. 3(a), 5 and 10, R.A. No. 7610) ……………………………………………..................... Swindling by Syndicate (P.D. No. 1689) ……………………………………………………………..

265 268 270 274 281 287 289 292

PRACTICAL EXERCISES A.

Drafting of Complaint, Information, Affidavits of Desistance, etc. ………………............

293

REVISED PENAL CODE and OTHER RELATED SPECIAL PENAL LAWS I. PRINCIPLES OF CRIMINAL LAW A. GENERAL PRINCIPLES Criminal Law is the branch or division of law, which defines crimes, treats of their nature, and provides for their punishment. (Reyes, The Revised Penal Code: Book One, 2017, p.1) Crime – the generic term used to refer to a wrongdoing punished either by the Revised Penal Code (RPC) or by a special law which includes municipal or city ordinances; an act committed or omitted in violation of a public law forbidding or commanding it. (I Bouviers Law Dictionary, Rawle’s Third Revision, p. 729) Felony – an act or omission punishable by the Revised Penal Code by means of deceit (dolo) or fault (culpa). (Art. 3, Revised Penal Code; CICL XXX vs. People of the Philippines, G.R. No. 237334, August 14, 2019, J. Caguioa) Offense – crimes that are punishable under special laws. However, offenses are now being used to refer to crimes in general. (Campanilla, Criminal Law Reviewer: Voulme I, 2019, p. 39) Misdemeanor – a minor infraction of law. 1. MALA IN SE AND MALA PROHIBITA Mala In Se (“Evil in itself”) Crimes mala in se refers generally to felonies defined and penalized by the RPC. When the acts are inherently wrong, they are mala in se, even if punished by special laws. (Reyes, The Revised Penal Code: Book One, 2017, p.56) Mala Prohibita (“Prohibited evil”) Crimes mala prohibita are those punished by special laws whereby criminal intent is not necessary, as a rule, it being sufficient that the offender has the intent to perpetrate the act prohibited by special law. (Reyes, The Revised Penal Code: Book One, 2017, p.56)

Mala in Se

Mala Prohibita As to Basis The moral state of the The voluntariness of the offender. offender. As to Nature Wrong from its very Wrong merely because nature, or inherently there is a law prohibiting immoral. the same. As to Laws Violated Generally, punishable Generally, punishable by by the RPC. Special Laws. As to Intent Requires criminal intent Generally, mere intent to on the part of the perpetrate the act or done offender. freely and consciously is enough. Exception: Temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. (People vs.

Estoista, G.R. No. L-5793, August 27, 1953)

As to use of Good Faith or Lack of Criminal Intent as Defense Good faith or lack of Good faith or lack of criminal intent is a criminal intent is NOT defense. accepted as a defense, UNLESS this is an element of the crime such as in Sec. 3(e) of R.A. 3019 [evident bad faith] or the law specifically provides. As to Modifying Circumstances (e.g mitigating or aggravating circumstances) as consideration These circumstances These circumstances are are taken into account not considered because in imposing the penalty the law intends to of the offender discourage the precisely because his commission of the act moral trait is the basis specially prohibited. of the crime. Exception: When the special law provides for such mitigating or aggravating circumstances. As to Degree of Participation This determines the This does not affect their penalty imposable so liability, hence, the that it is computed on penalty on all of them are the basis of whether he the same whether they

is principal offender, or are principals or merely merely an accomplice accomplices or or accessory. accessories. As to Stage of Accomplishment Can be attempted, Generally, always frustrated, or consummated; the stages consummated; the of execution are not stages of execution considered. affect the penalty imposable. Exception: When the specific provision of law provides for mere attempt or mere frustration. As to Involvement of Moral Turpitude Generally, crimes mala Generally, crimes mala in se involves moral prohibita do not involve turpitude. moral turpitude. Exception: there are mala prohibita offenses which was treated by the SC a crime involving moral turpitude e.g., violation of B.P. Blg. 22 (People vs.

Tuanda, G.R. No. 3360, January 30, 1990)

(Id.)

General Rule: Special laws are considered mala

absorbing predicate crimes such as child abuse or rape, VAWC or murder, parricide, homicide, or felonies with greater punishment); or

3. One crime absorbing the others as an element, or as an aggravating circumstance. (Illegal possession of

firearms absorbed by rebellion, or aggravating murder, or homicide; terrorism absorbing the predicate crimes; plunder absorbing the predicate crimes) (Reyes, The Revised Penal Code Book One, 2017, p.755) Note: The crime of terrorism is no longer predicate crimes under RA. No. 11479.

APPLICABILITY AND EFFECIVITY OF THE REVISED PENAL CODE

Characteristics of Criminal Law: i. Generality ii. Territoriality iii. Prospectivity a. GENERALITY (persons to be governed)

prohibita.

Exception: When the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001)

Basis: Art. 14, New Civil Code; Art. III(1), 1987 Constitution General Rule: The penal law is binding and obligatory to all persons who live or sojourn in the Philippines whether citizens or not (Art. 14, New Civil Code).

NOTE: Exceptions: Generally, crimes mala in se cannot absorb a crime mala prohibitum e.g., no absorption of crimes between B.P. 22 and estafa. Exception: When the special law expressly allow absorption. When an act that has been committed is a crime under RPC and a special law, the offender can be prosecuted for:

1. Treaties or Treaty Stipulations An example of a treaty stipulation is the Agreement between the United States of America and the Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines which was signed on 10 February 1998 ("RP-US Visiting Forces Accord"). Here, the Philippines agreed that:

1. Two crimes. (Estafa and BP22; estafa and illegal recruitment; torture and crime resulting from torture) RATIO: No absorption of crimes. 2. One crime. When the special law bars the prosecution for other offenses. (Terrorism

US military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the US over US personnel in PH;

Authorities exercise exclusive jurisdiction over US personnel with respect to offenses, including offenses relating to the security of the US punishable under the law of US, but not under the laws of PH; The US shall have primary right to exercise jurisdiction over US military in relation to: NOTE: Offenses solely against the property or security of the US or offenses solely against the property or person of US personnel. Offenses arising out of any act or omission done in the performance of an official duty. NOTE: Generally, the Philippines cannot refuse the request of the US for waiver of jurisdiction and has to approve the request for waiver except if the crime is of national importance: 1. Those crime defined under R.A. 7659 (Heinous crimes); 2. Those crime defined under R.A. 7610 (Child Abuse cases); and 3. Those crime defined under R.A. 9165 (Dangerous Drugs cases). 2. Law of Preferential Application

a. Republic Act No. 75 – It penalizes acts

which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights and privileges of duly accredited foreign diplomatic representatives in the Philippines.

General Rule: The following persons are exempted from any writ or process or prosecution in any court of the Republic of the Philippines, or by any judge or justice: a.) Ambassador or public minister of any foreign state; b.) Any domestic or domestic servant of any such ambassador or minister. Exceptions: a.) Where the person against whom the process is issued is a citizen or inhabitant of the Republic of the Philippines, in the service of an ambassador or a public minister, and the

process is founded upon a debt contracted before he entered upon such service; b.) Where the person against whom the process is issued is a domestic servant of an ambassador or a public minister UNLESS the name of the servant has been registered in the Department of Foreign Affairs. NOTE: Rule on reciprocity applies. RA 75 is applicable only where the country of the adversely affected diplomatic representative, provides similar protection to duly accredited diplomatic representatives of the Republic of the Philippines. b. Presidential Decree No. 1083 (Code of Muslim Personal Laws of the Philippines) – Provides that the provisions of the RPC relative to the crime of bigamy shall not apply to a person married in accordance with the provisions of this Code, before its effectivity, under Muslim law. 3. Principles of Public International Law a. Art. 31, Vienna Convention Diplomatic Relations

The following are not subject to the operation of our criminal laws: 1. Sovereigns and other chiefs of state; 2. Ambassadors, minister’s plenipotentiary, ministers resident and charges d’affaires. (1) Only the heads of missions, as well as

members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Only diplomatic agents under the terms of Vienna Convention are vested with blanket diplomatic immunity from civil and criminal suits. The main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs his duties of diplomatic nature. (Minucher vs. CA, G.R. No. 142396, February 11, 2003)

General Rule: Diplomatic representatives, such as ambassadors or public ministers and their official retinue, possess immunity from the criminal jurisdiction of the country of their

sojourn and cannot be sued, arrested, or punished by the law of that country. Exception: The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. (Shauf vs. Court of Appeals, G.R. No. 90314, November 27, 1990) NOTE: Under the generality principle, penal laws shall be obligatory upon all who live or sojourn in the Philippines territory. The foreign characteristic of an offender and offended party does not exclude offender from operation of penal laws. b. Art. 27, United Nations Convention on the Law of the Sea Warship Rule: a warship of another country even though docked in the Philippines is considered as an extension of the territory of their respective country. Same rule applies to foreign embassies in the Philippines. Philippine warship and embassies abroad are deemed extra territories of the Philippines.  Warships are always reputed to be the territory of the country to which they belong and cannot be subjected to the laws of another state. (US vs. Fowler, G.R. No. L-496,

December 31. 1902)

b. TERRITORIALITY (jurisdiction or the place where applicable) Article 2 of the RPC states that the provisions of the Code shall be enforced within the Philippine archipelago, including its atmosphere, its interior waters and maritime zone. General Rule: Penal laws of the Philippines are enforceable only within its territory. Exceptions: Penal laws shall be enforced outside of the jurisdiction of the Philippines against those who commit the following extraterritorial crimes: (SCIEN) a. Commission of an offense while on a Philippine Ship or airship; b. Forging or Counterfeiting any coin or currency note of the Philippines or obligations

and securities issued by the Government of the Philippines; c. Introduction into the Philippines of the obligations and securities mentioned in the preceding number; d. Commission of public officers or employees of an offense in the Exercise of their functions; or e. Commission of any of the crimes against National security and the law of nations, defined in Title One of Book Two of the RPC. (Art. 2, RPC) Exceptions: 1. RPC shall not be enforced within or outside the Philippine territories if so provided under: a. Treaties; or b. Laws of preferential application. 2. Extraterritoriality – the provisions of the Code shall be enforced, not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:

i. Should commit an offense while on a Philippine ship or airship

A Philippine ship or airship is one that is duly registered in the Philippine and under the Philippine laws. Rules on crimes committed on ships or airships: 1. In case of merchant ships or airships: a. Philippine ship or airship is in the Philippine waters or in high seas – the Philippines has jurisdiction. b. Philippine ship or airship is in the foreign territory – generally, the foreign State has jurisdiction except if that foreign country will not take cognizance of the issue, the Philippines can assume jurisdiction. c. Foreign ship or airship is in the Philippines waters - the English rule shall apply. (Reyes, The Revised Penal Code Criminal Law Book One, 2017, p. 29).

2. In case of warships or airships the nationality of such warship or airship determines the applicable penal laws since it is considered to an extension of the territory of the country to which they belong. (Id.) French Rule vs. English Rule French Rule – Such crimes are not triable in the courts of that country, unless their commission affects the peace and security of the territory or the safety of the state is endangered. The French Rule is not territorial in character. English Rule – Such crimes are triable in that country, unless they merely affect things within the vessel or they refer to the internal management thereof. In the PH, we observe the English Rule. (Estrada, supra)

deemed extensions of the territory of the country where they belong. ii. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands Forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true genuine document or by erasing, substituting, counterfeiting or altering, by any means, the figures, letters, words, or signs contained therein. NOTE: If forgery was committed abroad, it must refer only to Philippine coin, currency note, or obligations and securities, i.e. these objects of the crime must be issued by the government.

Rules on Foreign Merchant Vessels iii. A foreign vessel which began committing an offense as defined by the Philippine laws (failure to provide suitable means for securing animals while transporting them from a foreign port to a Philippine port) in foreign waters and the forbidden condition existed during the time the ship entered the Philippine territorial waters would fall under the jurisdiction of Philippine courts. It is a continuing crime. 1. Illegal smoking of marijuana aboard a foreign merchant vessel anchored in the Philippine waters falls under our jurisdiction. The release of the marijuana smoke disturbs the public peace. Smoking the drug within our territorial limits constitutes a breach of public order because of the disastrous effects entailed by the use of such drug. (People vs. Wong Cheng, G.R. No. L-18924, October 19, 1922) 2. A foreign merchant vessel in transit through local waters which brings opium into the Philippine territory violates local laws since it can be assumed that they were intended to be sold here, even if opium has not actually left vessel. (U.S. vs. Ah Sing, G.R. No. L-13005, October 10, 1917) Rule on Foreign Warships – they are not subject to the territoriality laws because they are

Should be liable for acts connected with the introduction into these Islands of the obligations and securities mentioned in the preceding number

NOTE: The introduction of forged or counterfeited obligations and securities into the Philippines is as dangerous as the forging or counterfeiting of the same, to the economic interest of the country. (Reyes, The Revised Penal Code: Book One, 2017). iv. While being public officers or employees, should commit an offense in the exercise of their functions. NOTE: Without the intimate relation between the office and the crime committed, the officers are acting in their private capacity and hence, bound by the law of the host country. (Reyes, supra) v. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of the RPC NOTE: It includes treason, espionage, provoking war and disloyalty in case of War, and piracy and mutiny. Rebellion is NOT included because it is a crime against public order. Hence, if rebellion is

planned abroad and acts of rebellion were committed there, there is no criminal liability over which the Philippine courts can assume jurisdiction because rebellion is not one of those in Title I of Book II. Terrorism, as defined by R.A. No. 9372, otherwise known as the Human Security Act of 2007, is now a crime against national security and the law of nations which is retained by RA 11479, otherwise known as the Anti-Terrorism Act of 2020, repealing law of the former. c. PROSPECTIVITY (when the law shall be applicable) Basis: Art. 21 and 22, RPC; Art. III (22), 1987 Constitution; Art. 4, New Civil Code General Rule: A penal law cannot make an act punishable in a manner in which it was not punishable when committed. Article 21 of the RPC provides that no felony shall be punishable by any penalty not prescribed by law prior to its commission. Likewise, Article 366 of the RPC provides that crimes are punished under the laws in force at the time of their commission. Exception: Whenever a new statute dealing with crimes establishes conditions more lenient or favorable to the accused, it can be given a retroactive effect. Exceptions to the exception: a) Where the new law is expressly made inapplicable to pending actions or existing causes of action; b) Where the offender is a habitual delinquent under Article 62 (5) of the RPC. Rules on Repeal of Penal Laws  Effects of EXPRESS REPEAL of penal law: a) If a penal law is expressly repealed by another law, the crime is obliterated. b) If there is a pending criminal case at the time of the repeal, the same must be dismissed.

The retroactivity of the repeal extends even to the one already convicted under the repealed law and serving the sentence by virtue of final judgment. The convict should be released from prison. (People vs. Avecilla, G.R. No. 117033, February 15, 2001)

2. Effects of IMPLIED REPEAL of penal law a) If there is only an implied repeal, the pending criminal action at the time the repealing law took effect will not be dismissed because the act punished in the first law is still punished in the new law which impliedly repealed the former. Both laws apply to the same subject matter. (United States vs. Cuna, G.R. No. 4504. December 15, 1908) This is also known as repeal with reenactment. (Estrada, Criminal Law Book One, 2011) b) However, the penalty under the repealing law will be applied if it is favorable to the accused; otherwise, the penalty under the old law shall apply. (Estrada, supra) 3. Effect of the repeal of the law which EXPRESSLY repealed a prior law: When the law which expressly repealed a prior law is also repealed, the law first repealed is not revived except: 1. Inclusion of a saving clause in the repealing statute that provides that the repeal shall have no effect on pending actions. 2. Where the repealing act re-enacts the former statute and punishes the act previously penalized under the old law. (Benedicto vs. CA, G.R. No. 125359, September 4, 2001) 4. Effect of the repeal of the law which IMPLIEDLY repealed a prior law: When the law which impliedly repealed a prior law is repealed, the repeal of the repealing law revives the prior law if the accused is a habitual delinquent or if the favorable second law prohibits retroactivity, unless the contrary is provided. While the

second law will govern if it is favorable to the offender who is not a habitual delinquent or the law is silent as to the retroactivity. 3.

INTERPRETATION OF PENAL LAWS (1) Construction: As a rule, if the provision of the penal law is clear, the same shall be interpreted in its strictest sense.

express provision or by necessary implication.  B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the absence of contrary provision in BP 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletory. (Ladonga vs. People, G.R. No. 141066, February 17, 2005) (4) The text of the provision prevails over its title.

In cases where there’s an ambiguity, penal laws are strictly construed against the Government and liberally in favor of the accused. (Reyes, The Revised Penal Code: Book One, 2017, p.18)

Note: There is a crime called qualified mutiny. Art. 123 specifies that it covers “any of the crimes referred to in the preceding article.” Although the title of the article specifies “qualified piracy”, since its text refers to both piracy and mutiny, the text should prevail.

(2) Spanish text of the RPC prevails over the English text  The Spanish version of Art. 267 uses the term “lockup” rather than “kidnap” (secuestrar or raptar). Lock-up is included in the broader term of “detention” which refers not only to the placing of a person in an enclusure which cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up. (People vs. Astorga, G.R. No. 110097, December 22, 1997)  The word “immediate” is an incorrect translation into English of the controlling Spanish text for the word “proxima.” The Spanish text allows for a lapse of time between the grave offense and the actual vindication. (People vs. Ignas, G.R. No. 140514-15, September 30, 2003) (3) Suppletory application of the RPC to Special Penal Laws (Art. 10) General Rule: RPC provisions supplementary to special laws.

are

Exceptions: a.

Where the special law provides otherwise; and b. When the provisions of the RPC are impossible of application, either by

🕮 Void-for-Vagueness Doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute – it can only be invoked against the specie of legislation that is utterly vague of its face, i.e., that which cannot be clarified by a saving clause or by construction. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001) 4.

RETROACTIVE EFFECT OF PENAL LAWS

(Art. 22)

General Rule: prospectively.

Penal

laws

are

applied

Exception: When retrospective application is favorable to the accused, provided that: 1. the offender is NOT a habitual delinquent; or 2. the new or amendatory law does NOT provide against its retrospective application

Reason for the exception: The sovereign, in enacting a subsequent penal law more favorable to the accused, has recognized that the greater severity of the former law is unjust. NOTE: Matters relating to procedural or remedial law can be applied retroactively so long as it is favorable to the accused. “Be it procedural, substantive or remedial for as long as the law is favorable to the accused who is not a habitual delinquent, the law must be given a retroactive application. (People vs. Ramirez, G.R. No. 136094, April 20, 2001) Habitual Delinquent – He is a person who, within a period of 10 years from the date of his release or last conviction of the crimes of (FRETS) Falsification, Robbery, Estafa, Theft, or Serious or Less serious physical injuries, is found guilty of any said crimes a third time or oftener. NOTE: A new law giving retroactive application favorable to the accused may be availed of by a recidivist.

penal law. (US vs. Cuna, G.R. No. 4504, December 15, 1908) ii. When the repeal is by implication; When a penal law, which impliedly repealed an old law, is itself repealed, the repeal of the repealing law revives the prior penal law, unless the language of the repealing statute provides otherwise. If the repeal is absolute, criminal liability is obliterated iii. When there is a saving clause.  No retroactive effect of penal laws as regards the jurisdiction of court to try a criminal action is to be determined by the law in force at the time of instituting the action, not at the time of the commission of the crime. (People vs. Pegarum, G.R. No. 37565, November 13, 1933) Passage of retroactive laws which are prejudicial to the accused is a limitation on the power of the lawmaking body to enact penal legislation. (Reyes, The Revised Penal Code: Book One, 2006, p.3)

The principle that criminal statutes are retroactive so far as they favor the culprit does not affect the latter’s civil liability.

Ex Post Facto Law

Reason: The rights of offended persons or innocent third parties are not within the gift of arbitrary disposal of the State. If the retroactive effect of a new law is justified, it shall apply to the defendant even he is: 1. Presently on trial for the offense; 2. Has already been sentenced but service of which has not begun; or 3. Already serving sentence.

a. Makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; b. Aggravates a crime, or makes it greater than it was, when committed; c. Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; d. Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; e. Assumes to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and f. Deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Reyes, The Revised Penal Code: Book One, 2017, p.2)

NOTE: No retroactive effect even when favorable to the accused if the new law expressly made inapplicable to pending actions or existing causes of action. Criminal liability under the repealed law subsists: i. When the provisions of the former law are reenacted; The right to punish offenses committed under an old penal law is not extinguished if the offenses are still punishable in the repealing

An ex post facto law is one which:

Bill of Attainder - is legislative act which inflicts punishment on individuals or members of a particular group without judicial trial. For a law to be considered a bill of attainder, it must be shown to contain all of the following: a.) a specification of certain individuals or a group of individuals; b.) the imposition of a punishment, penal or otherwise, and c.) the lack of judicial trial (More vs. Republic of the Philippines, G.R. No. 249406, September 15, 2020, J. Caguioa).

B. FELONIES Felonies – acts or omissions punishable by the RPC by means of deceit (dolo) or fault (culpa). (Art. 3, Revised Penal Code; CICL XXX vs. People of the Philippines, G.R. No. 237334, August 14, 2019, J. Caguioa) Elements of felonies: (ARC) a. That there must be an Act or omission; Act – any bodily movement tending to produce some effect in the external world, it being unnecessary that the same be actually produced, as the possibility of its production is sufficient (People vs. Gonzales, G.R. No. 80762, March 19, 1990); the act defined in the RPC is the overt act of the felony, that is, an external act which has direct connection with the felony intended to be committed. Omission – means inaction, the failure to perform a positive duty which one is bound to do. There must be a law requiring the doing or performance of an act. b. That the act or omission must be punishable by the RPC; an c.

That the act is performed or the omission incurred by means of dolo or culpa. (People vs. Gonzales, G.R. No. 80762, March 19, 1990)

1. CRIMINAL LIABILITIES AND FELONIES a. CLASSIFICATION OF FELONIES Classification of felonies according to their gravity (Art. 9, RPC):

a. Grave Felonies – those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of the RPC. i. Capital Punishment - is death penalty. ii. “Penalties which in any of their periods are afflictive” – when the penalty prescribed for the offense is composed of two or more distinct penalties, the higher or highest of the penalties must be an afflictive penalty. Afflictive Penalties in accordance with Art. 25:  Reclusion Perpetua  Reclusion Temporal  Perpetual or temporary absolute disqualification  Perpetual or temporary special disqualification  Prision Mayor b. Less Grave Felonies – those which the law punishes with penalties which in their maximum period are correctional, in accordance with Art. 25 of the RPC. “Penalties which in their maximum period are correctional” – If the penalty prescribed for the offense is composed of two or more distinct penalties, the higher or highest of the penalties must be a correctional penalties. The following are correctional penalties:  Prision Correccional  Arresto Mayor  Suspension  Destierro c. Light Felonies – are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is provided. Although Art. 26 of the RPC provides that a fine not less than P200.00 is a correctional penalty, Art. 9 which defines light felonies should prevail, because the latter classifies felonies according to their gravity, while the former classifies the fine according to the amount thereof. The gravity of the felonies are determined by the penalties attached to them by law. (Reyes, The

Revised Penal Code: Book One, 2017, p. 136)

Classification of felonies according to the means by which they are committed:

use diligence in foreseeing the injury or impending damage to be caused; usually involves lack of foresight.

a. Intentional felonies (dolo) – the acts or ccommissions are malicious and that the act is performed with deliberate intent; the offender, in performing the act or in incurring the omission, has the intention to cause injury to another. Requisites: (FIN) i. Freedom – Freedom means voluntariness on the part of the person to commit the act or omission; lack of freedom (i.e. compulsion of an irresistible force or greater injury) makes the offender exempt from liability. ii. Intelligence – necessary to determine the morality and the consequences of his acts. Lack of intelligence on the part of the offender, such as an imbecile, insane, or said offender is exempt from liability.

iii. Intent – criminal intent and the will to

commit a crime are always presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary appears (US vs. Apostol, G.R. No. 5126, September 2, 1909) Lack of intent on the part of the offender, such as in the case of existence of a lawful or insuperable cause, or commission by mere accident, will result into an act which is justified.

c. Culpable felonies (culpa) – the acts or omissions are not malicious; the injury caused by the offender to another person is unintentional, it being simply the incident of another act performed without malice. Requisites: (FIN)

i. Freedom ii. Intelligence

iii. Negligence, imprudence, or lack of foresight or skill. Negligence – indicates a deficiency of perception; failure to pay proper attention to

Imprudence – indicates a deficiency of action; failure to take the necessary precaution to avoid injury to person or damage to property; usually involves lack of skill. (Reyes, The Revised Penal Code: Book One, 2006, p.50) Dolo vs. Culpa Dolo

Culpa As to Malice The act or omission is The act or omission is

malicious.

not malicious.

As to intent With deliberate intent. Unintentional. As to source of wrong committed Has intention to commit Wrongful act results a wrong. from imprudence, negligence, lack of foresight or lack of skill.

Another classification of crime is that defined and penalized by special laws which includes crimes punished by municipal or city ordinances. When the crime is punished by special law, as a rule, intent to commit the crime is not necessary. It is necessary that the offender has the intent to perpetrate the act prohibited by the special law. XPN: if the prohibited act is evil in nature, intent to commit the crime should be proved. (Reyes, supra) Mistake of Fact – a misapprehension of fact on the part of the person who caused injury to another. Here, there is no criminal liability as there is no criminal intent. Requisites of Mistake of Fact as a Defense

1. That the act done would have been lawful 2. 3.

had the facts been as the accused believed them to be. That the intention of the accused in performing the act should be lawful. That the mistake must be without fault or carelessness on the part of the accused. (US vs. Ah Chong, G.R. No. L-5272, March 19, 1910)

When Mistake of Fact is NOT applicable

When motive is relevant:

a. When there is mistake in the identity of the

a. Where the identity of a person accused of having committed a crime is in dispute; b. Where the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt; c. When there are two antagonistic theories or versions of the killing; d. When the testimony is not conclusive and not free from doubt e. Where there are no eyewitnesses to the crime, and where suspicion is likely to fall upon a number of persons; and f. If the evidence is merely circumstantial (Reyes, Criminal Law Book One, 2011, pp. 60-61)

b. c.

victim (error in personae); When there is negligence on the part of the accused; or When the accused committed a culpable felony.

NOTE: While ignorance of the law excuses no one from compliance therewith, ignorance or mistake of fact relieves the accused from criminal liability. An honest mistake of fact destroys the presumption of criminal intent, which arises upon the commission of a felonious act. (People vs. Coching, et al., C.A., 52 O.G. 293) Motive is the moving power or force which impels a person to commit acts to bring about a definite result. No matter how evil the internal thought is, as long as there are no overt acts, no crime is committed. (Campanilla, Criminal Law Reviewer I, 2019, p. 51) Intent vs. Motive (Campanilla, Criminal Law Reviewer I, 2019, pp. 51-52) Intent The purpose to use a particular means to effect such result. An element of the crime, except in unintentional felonies. Essential in intentional felonies.

Motive The moving power which impels one to action for a definite result. Not an element of the crime. Essential only when the identity of the perpetrator is in doubt.

Illustration: A, who is envious of B, shot the latter as a result of which B died. The intent is to kill while the motive is envy. General rule, proof of motive is unnecessary to impute a crime on the accused if the evidence of identification is unclear, proof of motive is a paramount necessity. (People vs. Bautista, G.R. No. 120898-99, May 14, 1998)

How Criminal Liability is Incurred

1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended (Intentional Felonies). 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Impossible Crime).

Rationale of rule in paragraph 1 of Article 4 – el que es causa de la causa es causa del mal causado (“he who is the cause of the cause is the cause of the evil cause”) (People vs. Ural, G.R. No. L–30801, March 27, 1974). Proximate cause - is that cause which, in its natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would have occurred (Vallacar Transit, Inc. vs. Catubig, G.R. No. 175512, May 30, 2011); gives rise to criminal liability by analogy to Art. 4(1). The felony committed is NOT the proximate cause of the resulting injury when:

i. There is an active force that intervened

between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or

🕮 The rule that when a person, by a felonious act, generates in the mind of another a sense of imminent danger, prompting the latter to escape from or avoid such danger and in the process, sustains injuries or dies, the person committing the felonious act is responsible for such injuries or death. (People vs. Page, G.R. No. L–37507, June 7, 1977, citing People vs. Toling, G.R. No. L– 27097, January 17, 1975; People vs. Pajotal, G.R. No. 142870, November 14, 2001)

ii. The resulting injury is due to the intentional act of the victim. Efficient Intervening Cause – is the cause which interrupted the natural flow of events leading to one’s death. This may relieve the offender from liability. (Estrada, supra) The following are NOT efficient intervening causes: i. The weak or diseased physical condition of the victim, as when one is suffering from tuberculosis or heart disease. (People vs. Illustre, G.R. No. L-32076, March 14, 1930); ii. The nervousness or temperament of the victim, as when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctor’s orders, because of his nervous condition due to the wound inflicted by the accused (People vs. Almonte, G.R. No. 35006, September 7, 1931); iii. Causes which are inherent in the victim, such as (a) the victim not knowing how to swim (US vs. Valdez, G.R. No. L-16486, March 22, 1921), and (b) the victim being addicted to tuba drinking (US vs. Bayutas, G.R. No. 10470, October 1, 1915); iv. Neglect of the victim or third person, such as the refusal by the injured party of medical attendance or surgical operation, or the failure of the doctor to give anti–tetanus injection to the injured person (US vs. Marasigan, G.R. No. L9426, August 15, 1914); and v. Erroneous or unskillful medical or surgical treatment, as when the assault took place in an outlaying barrio where proper modern surgical service was not available. (People vs. Moldes, G.R. No. L-42122, December 1, 1934) Those causes, not being efficient intervening causes, do not break the relation of NOTE:

cause and effect – the felony committed and the resulting injury. Art. 4 (1) Requisites: (IF-DiNaLo)

1. That an Intentional Felony has been committed; and 2. That the wrong done to the aggrieved party be the Direct, Natural and Logical consequence of the felony committed.

Under Article 4(1), a person committing a felony is still criminally liable even if the wrongful act done be different from that intended: b.

ABERRATIO ICTUS, PERSONAE, AND INTENTIONEM

ERROR IN PRAETER

A. There is a mistake in the blow (Aberratio ictus) –A person directed the blow at an intended victim, but because of poor aim, that blow landed on somebody else. In aberratio ictus, the intended victim as well as the actual victim are both at the scene of the crime. Transferred intent rule – applies in error in personae. It results when the actual victim turns out to be different from the intended victim. The intent to kill or the intent to cause an injury is deemed transferred to the actual victim. For example, A with intent to kill, hacked B. B was not hit but C who was behind B was hit. C died. A is liable for his attempt to kill B. A is also liable for the death of C. The death of C is a natural consequence of the felonious act of A. The transferred intent rule is applicable. Considering that A performed a single act, he is liable for the complex crime of Homicide with Attempted Homicide.

(Estrada, Criminal Law Book One, 2011)

B. There is a mistake in the identity of the victim (Error in personae) – In error in personae, the intended victim was not at the scene of the crime. It was the actual victim whom the blow was directed, but he was not really the

intended victim. There was really a mistake in identity. NOTE: Applying Article 49 of the RPC, the penalty imposable will be the penalty prescribed for the offense which has a lesser penalty in its maximum period. For example, A intended to kill B. Instead, he mistakenly thought that his mother, C, was B so he fired a shot at B. In this case, A is liable for the penalty imposable in homicide and not parricide since the former’s penalty is lesser than the latter. Thus, A will be held liable for reclusion temporal in its maximum period. (Reyes, supra). C. The injurious result is greater than that intended (Praeter intentionem - So grave a wrong caused than that intended) – the injurious result is greater than that intended. It is a mitigating circumstance, thus, lowers criminal liability under Art. 13. (Reyes, supra) Comparison of the Effect of Intent vs. Effect on Criminal Liability for MoF, IA, EiP, PI, and PC.

Praeter Intentionem (PI)

Proximate Cause (PC)

homicide homicide. Actual crime is greater than intended. Results in crime although not intended.

and

Mitigating under Article 13. Results in criminal liability to the actor with intent or through negligence.

(Boado, Notes and Cases on the Revised Penal Code, 2018, page 62-63)

b. IMPOSSIBLE CRIME Impossible Crime - an act, which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Art. 4[2], RPC) Rationale: The accused is punished for his criminal tendency or propensity. Requisites: (PEIN)

i. That the act performed would be an offense against Persons or property;

Factor

Effect of Intent

Mistake of Fact (MoF)

Negative criminal intent. Intent is against unintended victim or the effect is in addition to the injury on the indended victim. Intended result falls on another due to error in the identity of the victim.

Aberratio Ictus (AI)

Error Personae (EiP)

Effect on Criminal Liability Negative criminal liability. Increases criminal liability which generally results to complex crime. (Art. 48)

Extenuating if the resulting crime is greater than intended,

e.g. parricide when what is intended is homicide (Article 49); no effect if the resulting crime is the same as that intended, e.g.

ii. That the act was done with Evil intent; iii. That its accomplishment is inherently iv.

Impossible or that the means employed is either inadequate or ineffectual; and That the act performed should Not constitute a violation of another provision of the RPC.

Impossibility of the Crime The law states that the act “would be a crime” hence, it has not ripened to an actual crime because of the ineffectual means employed or due to its inherent impossibility. Thus, objectively, no crime has been committed. Inherent impossibility accomplishment:

its

a. Legal Impossibility – when the intended acts, even if completed would NOT amount to crime, such as killing a person who is already dead. (Intod vs. C.A., G.R. No. 103119, October 21, 1992)

b. Physical Impossibility – when extraneous circumstances unknown to the actor or beyond his control prevents the consummation of the intended crime (e.g. when a man with the intention to steal another’s wallet and finds the pocket empty; when a person steals a check which was later dishonored). (Jacinto vs. People, G.R. No. 162540, July 13, 2009) Felonies against persons are: 1. 2. 3. 4. 5. 6. 7. 8.

Murder (Art. 248); Homicide (Art. 249); Parricide (Art. 246); Infanticide (Art. 255); Duel (Arts. 260 and 261); Rape (Art. 266–A); Abortion (Arts. 256, 257, 258 and 259); and Physical Injuries (Arts. 262, 263, 264, 265 and 266)

Note: Rape was classified as Crimes against persons, therefore, Impossible Crime for the crime of rape may be charged to the accused. (Estrada, Criminal Law Book One, 2011) Felonies against property are:

would be, although in reality, the victim was not present in said place and thus, the accused failed to accomplish his end. Second, the crime committed is not an impossible crime but Malicious Mischief. Under Art. 4(2) of the Revised Penal Code, the commission of crime against person or property should not constitute a violation of another provision of the Revised Penal Code. The moment another crime is committed there can be no impossible crime. The offender is liable for that crime which was committed in the process. In the case at bar, Destroying somebody’s property because of hate, anger or other evil motive is Malicious Mischief. Considering that another crime other than the crime intended was thus committed, then the accused are liable for that offense. Hence, Malicious Mischief, not Impossible Crime was committed. Note: For purposes of answering bar exam questions, the first view should be followed since it is a SC decision. Moreover, the SC in the Intod case cannot convict the accused for malicious mischief since it was not alleged in the Information. NOTES:

1. Brigandage (Arts. 306 and 307); 2. Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303); 3. Usurpation (Arts. 312 and 313); 4. Culpable Insolvency (Art. 314); 5. Theft (Arts. 308, 310 and 311); 6. Swindling and other deceits (Arts. 315, 316, 317 and 318); 7. Chattel Mortgage (Art. 319); 8. Arson and other crimes involving destruction (Arts. 320,321, 322, 323, 324, 325 and 326); and 9. Malicious Mischief. (Arts. 327, 328, 329, 330 and 321) CONTRA IN THE CASE OF INTOD VS COURT OF APPEALS: First, the crime committed is an impossible crime in the case of Intod vs. Court of Appeals (G.R. No. 103119, October 21, 1992), factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. The case at bar belongs to this category as the accused fired his gun at the place where he thought his victim

● Felony against persons or property should not be actually committed, otherwise, he would be liable for that felony; there would be no impossible crime to speak of. (Reyes, The Revised Penal Code Book One, 2017, pp. 82) ● Objectively, the offender has NOT committed a felony, but subjectively, he is a criminal. (Reyes, supra) ● There is no attempted or frustrated impossible crime. It is always consummated and applies only to grave or less grave felonies. (Reyes, supra) ● The factors must be considered by the court in determining the proper penalty for impossible crime are: (1) the social danger, and (2) the degree of criminality shown by the offender. (Art. 59, RPC) d. STAGES OF EXECUTION Stages/Development of Crime Internal Acts – mere ideas in the mind of a person, which are NOT punishable even if they

have been carried out would constitute a crime. (Estrada, Criminal Law Book One, 2011) External Acts – covers preparatory acts and acts of execution. (Id.) a. Preparatory Acts – acts, which are ordinarily NOT punishable except when the laws provide for their punishment in certain felonies. (i.e., Buying a poison or carrying a weapon with which to kill the intended victim, carrying inflammable materials to the particular place where a house is to burn.) (Id.) NOTE: Preparatory acts which are considered in themselves, by law, as independent crimes are punishable. (Id.)

Example: Possession of picklocks under Article

304, such possession is a preparatory act to the commission of robbery. (Arts. 299 and 302, RPC) b. Acts of Execution – refers to the stages in the commission of a felony or acts of execution – attempted, frustrated and consummated – the acts, which are punishable under the RPC. (Id.) Subjective Phase – It is that portion of the acts constituting the crime, starting from the point where the offender begins the commission of the crime to that point where he still has control over his acts, including its natural course. (Id.) Objective Phase – The offender no longer has control over his acts until the last act of the offense. If the offense is NOT produced, then it is frustrated. If the subjective and objective phases are present, there is a consummated felony. (Id.) Three (3) Stages of Execution: 1. Attempted 2. Frustrated 3. Consummated Important Factors to determine the stage of execution of a felony 1. The nature of the offense 2. The elements of the felony 3. Manner of committing the felony A.

Attempted felony – when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. (Art. 6[3], RPC) Elements: (OPS)

1. The Offender commences the commission of 2. 3.

the felony directly by overt acts; The offender does not Perform all the acts of execution which should produce the felony; and That the non-performance of all the acts of execution was due to cause or accident other than his Spontaneous desistance

Overt acts – are some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. (Reyes, The Revised Penal Code Book One, 2011, pp. 97) Desistance – it is the act of discontinuing the execution of the felony which will negate criminal liability of the offender when done during the attempted stage. It is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. (Estrada, supra) Kinds of Desistance Legal Desistance Factual Desistance Definition Desistance referred to Actual desistance of the in law which would actor, the actor is still obviate criminal liable for the attempt. liability unless the overt or preparatory act already committed in themselves constitute a felony other than what the actor intended Note: The desistance in Article 6 is also factual since the accused must desist from

performing all acts of execution as a matter of fact.

Time or Period Employed Desistance made Desistance made after during the attempted the attempted stage of stage. the crime.

Frustrated felony – when the offender performs all the act of execution, which would produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. (Art. 6[2], RPC)

Elements: (ACNI)

NOTE: The desistance which exempts a person from criminal liability has reference to the crime intended to be committed, and has no reference to the crime actually committed by the offender before his desistance (People vs. Lizada, G.R. Nos. 143468–72, January 24, 2008).

1. The offender performs All acts of execution; 2. All the acts performed would produce the

Frustrated vs. Attempted

Crimes which do not admit of frustrated stage

Frustrated Attempted The offender has not accomplished his criminal purpose (Art. 6, RPC). The offender has The offender merely performed all the acts of commences the execution which would commission of a felony produce the felony as directly by overt acts and consequence (Art. 6, does not perform all the RPC). acts of execution (Art. 6,

RPC).

Attempted/Frustrated vs. Impossible Crime Attempted/ Impossible Crime Frustrated The evil intent of the offender is not accomplished The evil intent of the offender is possible of accomplishment. What prevented its accomplishment is the intervention of certain cause or accident in which the offender had no part.

The evil intent of the offender cannot be accomplished. The evil intent of the offender cannot be accomplished because it is inherently impossible of accomplishment or because the means employed by the offender is inadequate or ineffectual.

NOTE: In determining whether the felony is attempted, frustrated or consummated, (1) the nature of the offense; (2) the elements constituting the felony; and (3) the manner of committing the same, must be considered.

3. 4.

felony as a Consequence; But the felony is Not produced; By reason of causes Independent of the will of the perpetrator.

● Rape, no matter how slight the penetration, the felony is consummated; ● Indirect bribery, the acceptance of the gifts offered to the public officer by reason of his office is consummation of the said felony; ● Direct bribery; ● Corruption of Public Officers, the concurrence of the will of both parties, such as that when the offer is accepted, would render the offense as consummated. If he rejects, the offense is merely attempted; ● Adultery, because its essence is sexual congress, hence the same principle as in rape applies; ● Physical injuries, since it cannot be determined whether the injury will be slight, less serious, or serious unless and until consummated; and ● Theft and robbery because apoderameinto is complete from the moment offender gains possession of the thing. (Estrada, Criminal Law Book One, 2011) Instances when the stages of the crime will not apply a. Formal crimes – are crimes which are consummated in one instance. There are no attempted AND frustrated stages of execution. Physical injuries are formal crimes since these are punished as to result and the gravity of the injury

cannot be determined whether slight, less serious or serious unless and until consummated. Slander (Art. 358) is a formal crime because the moment the defamatory words were uttered and heard by a third person, the crime is consummated. Oral Defamation. It is consummated when the utterances are made. Quasi-offenses or culpa is always consummated because of the absence of intent which is an element of dolo. Corruption of Minors. (Art. 340, RPC) b. Felony by omission – when the felony is by omission, there can be no attempted stage as the offender does not execute acts. – e.g. Misprision of Treason (Art. 116, RPC) c. Offenses punishable by Special Penal Laws, unless otherwise provided d.

Crimes consummated by mere attempt – Flight to enemy’s country (Art. 121) is already consummated upon mere attempt to flee to the enemy’s country.

e. Crimes consummated by mere agreement Betting in sports contests (Art. 197) and corruption of public officers (Art. 212) are consummated by mere agreement of the parties. f. Light Felonies – punishable only when consummated. These are infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 40,000 pesos, or both is provided (Art. 9, [par 3] as amended by R.A. No. 10951). a. b. c. d.

Slight physical injuries (Art. 266); Theft (Art. 309, pars 7 and 8); Alteration of boundary marks (Art. 313); Malicious mischief (Art. 328[3]; Art. 329[3]); and e. Intriguing against honor (Art. 364). f. Illegal Cock-fighting (Art. 199) g. Betting in sport contest (Art. 197)

General Rule: Light felonies are punishable only when they have been consummated. Exception: Light felonies committed against persons or property, are punishable even if attempted or frustrated. Other felonies that have no attempted or frustrated stages 1. 2. 3. 4. 5. C.

Treason (Art. 114) False Testimony (Art. 180-183) Corruption of minors (Art. 340) Abuse against chastity (Art. 245) Impossible Crime (Art. 4[2]) Consummated felony – when all the elements necessary for its execution and accomplishment are present.

NOTE: The offender does not have to do anything else to consummate the offense. He has already reached the objective stage of the offense as he no longer has control of his acts having already performed all that is necessary to accomplish his purpose. e. CONTINUING CRIMES Continuing crime or transitory crime is a single crime, consisting of a series of acts but all arising from one criminal resolution. A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an intermittent force, however long a time it may occupy. Although there is a series of acts, there is only one crime committed. Hence, only one penalty shall be imposed. (Reyes, The Revised Penal Code Book One, 2011, pp. 683) Penalty for complex crime is the penalty for the most serious crime, the same to be applied in the maximum period. If different crimes resulting from one single act are punished with the same penalty, the penalty for any one of them shall be imposed, the same to be applied in the maximum period.

COMPLEX CRIMES

CRIME

and

COMPOSITE

Complex Crime. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (Art. 48, RPC) The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. Kinds of Crimes 1. Simple crimes – there are the simple crimes which the Revised Penal Code defines and prescribes the penalty in a single article. 2.

Plurality of crimes – when an offender commits multiple crimes, each with a corresponding penalty distinct and separate from those of the others. a. Real or material plurality - "concurso real", on the other hand, arises when the accused performs an act or different acts with distinct purposes and resulting in different crimes which are juridically independent. (Gamboa vs. CA, G.R. No. L41054, November 28, 1975) b. Ideal plurality – There is plurality of crimes or "concurso de delitos" when the actor commits various delictual acts of the same or different kind. "Ideal plurality" or "concurso ideal" occurs when a single act gives rise to various infractions of law. (ibid)

Examples:

i. When the offender commits any of the complex crimes defined in Art. 48; ii. When the law specifically fixes a single penalty for 2 or more offenses; and iii. When the offender commits continued crimes. (Reyes, The Revised Penal Code: Book One, 2006, p.683)

3. Composite crimes or Special complex crimes – these are two simple crimes but which the RPC has defined as a single offense. Examples Rape with Homicide, Kidnapping with Homicide, Robbery with Homicide, Robbery with Rape, Kidnapping with Rape, (this is different from abduction with rape. In the latter, there is lewd design. (People vs. Jose, G.R. No. L-28232, February 6, 1971) and ● Robbery with Arson. ● ● ● ● ●

NOTE: These crimes are treated as single indivisible offenses although comprising more than one specific crime and with specific penalty. They are NOT complex crime under the definition of Art. 48. 🕮 These refer to two or more crimes that the law treats as a single indivisible and unique offense for being the product of a single criminal impulse. (People vs. Dela Cruz, G.R. No. 183091, June 19, 2013) 🕮 When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death. The legislative intent on the import of the phrase on the occasion of the rape to refer to a killing that occurs immediately before or after, or during the commission itself of the attempted or consummated rape, where the victim of the homicide may be a person other than the rape victim herself for as long as the killing is linked to the rape, became evident. (People vs. Villaflores, G.R. No. 184926, April 11, 2012 NOTE: There is no complex crime of Arson with (Multiple) Homicide. Accordingly, in cases where both burning and death occur, in order to determine what crime was/crimes were perpetrated – whether arson, murder or arson and homicide/ murder, it is de rigueur to ascertain the main objective of the malefactor:

If the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; b. If, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; and lastly, c. If the objective is likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed – homicide/murder and arson. (People vs. Edna Malingan, G.R. No. 170470, September 26, 2006) 4.

necessary means for committing another offense. It is only one crime as contemplated by law because the offender has only one criminal intent. Requisites: (TOSS) i. That at least Two offenses are committed. ii. That One or Some of the offenses must be necessary to commit the other; iii. That both or all the offenses must be punished under the Same statute. NOTE: “Necessary” “indispensable”

Requisites: i. That only one single act is performed by the offender. ii. That the single act produces two or more grave or less grave felonies.

When the crime is committed by force or violence, slight physical injuries are absorbed such as in direct assault and rape. Reason: the slight physical injuries are the necessary consequence of the force or violence inherent in the crimes of direct assault and rape. (People vs. Aplado, G.R. No. 31075, August 12, 1929) b. Complex Crime Proper or Delito Complejo – when an offense is a

not

mean

Compound Crimes Complex Crimes Both or all the offenses must be punished under the RPC. Compound crimes result Complex crimes result when the offender when the offender has to committed only a commit an offense as a single felonious act necessary means for from which two or more committing another crimes resulted. This is offense. Only one provided for in modified information shall be filed, form in the first part of and if proven, the penalty Article 48, RPC, limiting for the more serious crime the resulting crimes to shall be imposed. (Reyes, only grave and/or less The Revised Penal Code: grave felonies. Hence, Book One, 2006, p.680) light felonies are excluded even though resulting from the same single act. (Reyes, The

Complex crimes - When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other. a. Compound Crime or Delito Compuesto – when a single act constitutes two or more grave or less grave felonies.

Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony. (People vs. Turla, G.R. No. 26388, February 14, 1927)

does

Revised Penal Code: Book One, 2006, p.659)

Cases where commission of two crimes will not result to complex crime proper a.

A crime to conceal another for the law requires a crime to commit another, not to conceal the other crime; b. A crime which is an element of the other for in that case, the former shall be absorbed by the latter such as trespassing which is an element of robbery; c. A crime which has the same element as the other crime committed; d. Where the intent is really to commit the second crime but the first act although also a crime is incidental to the commission of the second crime. For instance, in the taking away of a woman for the original intent to

commit rape on her, the taking is merely incidental to the crime of rape, hence, it is not complex crime of abduction with rape, but only simple rape. (Estrada, Criminal Law Book One, 2011) Other Kinds of Plurality of Crimes where a single penalty is imposed 1. A continued crime or delito continuado is one where the accused is impelled by a single criminal impulse can be produced even if the acts are committed on different place and time provided the foreknowledge doctrine applies. (People vs. Sabbun, G.R. No. L-18510, January 31, 1964) Note: Single Larceny Doctrine (SiLD) – a doctrine in Theft or Robbery cases where taking of a property or properties belonging to the same or different persons by a series of acts or acts arising from a single criminal intent or resolution constitutes only one crime. The courts have abandoned the Separate Larceny Doctrine (SeLD) under which there is a distinct larceny as to the property of each victim. The SiLD is a specie of delito continuado, which is specifically applicable to theft. (Campanilla, Criminal Law Reviewer: Volume I, 2019, p. 109) Note: SiLD is not applicable to prohibited acts under BP 22. (Lim vs. People, G.R. No. 14321, October 26, 2001) 🕮 The SC ordered the consolidation of the 32 separate Informations filed against the accused in one information for the alleged violation of RA 3019. Her acts of signing the 32 release orders of overstaying aliens proceeded from the belief that there was no legal basis for their continued detention. (Santiago vs. Garchitorena, G.R. No. L-109266, December 2, 1993).

Exception to the Application of SiLD 🕮 The SC declared that it is not the act of pressing the trigger which should produce the several felonies, but the number of bullets which actually produced them. Hence, where the accused pressed the trigger of a submachine gun and the gun fired continually and several persons killed or injured, there are as many crimes as are persons killed or injured. (People vs. Sanchez, G.R. No. 131116, August 29, 1999) 2. Continuing crime or transitory crimes (See discussion under B.1.e Continuing

crimes)

There are no complex crimes in the following: 1. When an offense is used to conceal another offense. 2. When a crime is an indispensable element the other; 3. When one of the offenses committed is penalized under a special law; 4. In cases of special complex crimes; 5. When the law provides for a two-tiered penalty Two-Tiered Penalty Occurs when the law provides that a penalty to a particular crime is in addition to the penalty imposable for another crime which results from the commission of such particular crime. (Estrada, supra)

Example: Maltreatment of Prisoners — The penalty of prision correccional in its medium period to prison mayor in its minimum period, in addition to his liability for the physical injuries shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention officer under his charge. (Art. 235, RPC)

Complex Crime vs. Composite Crime (Boado, Notes and Cases on the Revised Penal Code, 2018, pp. 267-268) Complex Crime The combination is not specified but in general terms, that is, grave and/or less grave; or one offense being the necessary means to commit the other. The penalty imposable is the penalty for the most serious crime. If a light felony accompanies the commission of the complex crime, the light felony may be subject to separate information. Penalized in a single provision of the law e.g., Art. 267 on kidnapping with rape and given a single specific penalty.

Composite Crime (or Special Complex Crime) The combination of the offenses is fixed by law.

The penalty for the special complex crime is expressly provided by law. If a felony accompanied the commission of the composite crime, such light felony is absorbed. Penalized by two provisions in relation to Art. 48 e.g., rape under Art. 266-A and forcible abduction under Art. 342 and penalized under Art. 48 for the most serious in the maximum.

Justifying (J); Exempting (E); Mitigating (M); Aggravating (A); Alternative (A) – JEMAA E No criminal liability

Excep tion: to avoid an evil or injury.

Excepti on: (1) accident

(Art. 11[4])

GR: With civil liability

(Art. 12[4]);

(Art.12[ 7])

Note: Exceptions in justifying and exempting circumstances as to the civil liability are based in Art. 101 of the RPC. a. JUSTIFYING CIRCUMSTANCES (Art. 11)

2. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

J No crimin al liability GR: No civil liability

ble cause

M Decreas ed criminal liability With civil liability

A Increase d criminal liability With civil liability

A Increased /decrease d liability With civil liability

Justifying Circumstances – those in which the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. General Rule: Justifying Circumstances under RPC does not incur criminal liability. Exception: in Art. 11(4) where “any person who, in order to avoid an evil or injury, does an act which causes damage to another”, where the civil liability is to be shared by the persons who benefited by the act. (Art. 101, RPC) If there were several persons benefited, the court shall determine their proportionate share. (Id.) Justifying circumstances: 1. Acts in defense of his persons or rights (SelfDefense); 2. Acts in defense of the person or rights of his relatives (Defense of a relative); 3. Acts in defense of the person or rights of a stranger (Defense of a stranger); 4. Avoidance of greater evil or injury (State of

necessity/Avoidance injury);

Greater

Evil

5. Acts in the fulfillment of a duty or in the lawful exercise of a right or office; 6. Acts in obedience to an order issued by a superior for some lawful purpose; (Art. 11) and 7. [additional] Battered Woman Syndrome (R.A. No. 9262). NOTE: There is no civil liability, except in Art. 11(4), where the civil liability is borne by the persons benefited by the act.

(2) Insupera

Self–Defense – Art. 11 (1) Rights included: 1. Defense of Person; 2. Defense of Rights; 3. Defense of Property – it can be invoked if there is an attack upon the property although it is not coupled with an attack upon the person of the owner of the premises. All the elements for justification must however be present. (People vs. Narvaez, G.R. No. L–33466– 67, April 20, 1983) 4. Defense of Honor – a slap on the face is considered as unlawful aggression since the face represents a person and his dignity. It is a serious personal attack; a physical assault, coupled with a willful disgrace; and it may, therefore, be frequently regarded as placing in real danger a person’s dignity, rights and safety. (Rugas vs. People, G.R. No. 147789, January 14, 2004) Requisites: (UnReaL) 1. Unlawful Aggression; 2. Reasonable necessity of the means employed to prevent or repel it; and 3. Lack of sufficient provocation on the part of the person defending himself. 1. If the police officer employed reasonably necessary means to repel resistance of person to be arrested, the former may plead two defenses, to wit: performance of duty and self-defense or defense of stranger. (Masipequina and Alampayan vs. CA and People, G.R. No. L-51206, August 25, 1989) 

Unlawful aggression – There is an unlawful aggression when the peril to one’s life, limb, or right is either actual or imminent.

2. Unlawful aggression is an indispensable requisite; hence, its presence is a condition sine qua non. Unlawful aggression is the primordial element in self-defense because without self-defense, there is nothing to repel; hence, self-defense will not lie. (People vs. Fontanilla, G.R. No. 177743, January 25, 2012) 3. Unlawful aggression must also be a continuing circumstance or must have been existing at the time the defense is made.

Once the unlawful aggression is found to have ceased, the one making the defense of a stranger would likewise cease to have any justification for killing, or even just wounding, the former aggressor. (People vs. Dijan, G.R. No. 142682, June 5, 2002) Elements: (PAU) 1. There must be a Physical or material attack or assault; 2. The attack or assault must be Actual or at least imminent; and 3. The attack or assault must be Unlawful. (People vs. Fontanilla, G.R. No. 177743, January 25, 2012) 1. Equivalent to physical assault;  The person defending himself must have been attacked with actual physical force with the actual use of weapon. But slap on the face constitutes unlawful aggression. It is a physical assault coupled with a willful disregard, nay, a defiance of an individual’s personality. (People vs. Sabio, G.R. No. L-23734, April 27, 1967) 2. Threatened assault of an immediate and imminent kind which is offensive and positively strong, showing the wrongful intent to cause injury; The act of self-defense must succeed the unlawful aggression within a reasonable amount of time.  Retaliation is not a justifying circumstance. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. (People vs. Cajurao, G.R. No. 122767, January 20, 2004) 3. It must come from the person who was attacked by the accused; and  No unlawful aggression when there was an agreement to fight. (People vs. Monteroso, G.R. No. 28538, August 4, 1928). 4. Not merely threats or threatening stance or posture.

 Mere belief in an impending attack is NOT sufficient. Neither is intimidating or threatening attitude. (People vs. Bautista, G.R. No. 109800, March 12, 1996). But there is self-defense even if the aggressor used a toy pistol, provided the accused believed it was a real gun. (People vs. Boral, 11 CA 914) a. The act of the (deceased) of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant. (People vs. Borreros, G.R. No. 125185. May 5, 1999) b. The act of pulling “something” (People vs. De Leon, G.R. No. 197546, March 23, 2015) or pressing his right hand to his hip where a revolver was holstered (People vs. Olarbe, G.R. No. 227421, July 23, 2018) or pulling a gun but without manifestation of any aggressive act (People vs. Rubiso, G.R. No. 128871, March 18, 2003) is not an unlawful aggression. Hence, killings of the victims are unjustified. But aiming a revolver at another with intent to shoot is an imminent unlawful aggression, within the contemplation of the justifying circumstance of self-defense. (People vs. Olarbe, G.R. No. 227421, July 23, 2018) c.



Thrusting hand into the pocket as if for the purpose of drawing a dagger or a pocket knife (U.S. vs. Carrero, G.R No. L3956 January 10, 1908) or pulling a kitchen knife (People vs. Escarlos, G.R. No. 148912, September 10, 2003) is not unlawful aggression; hence, the killing of the victim is not justified. However, opening a knife and making a motion as if to attack is an imminent unlawful aggression (People vs. Olarbe, G.R. No. 227421, July 23, 2018), which justified the exercise of self-defense.

Reasonable necessity of the means employed to prevent or repel it – there must be: (a) a necessity of the course of action taken by the person making a defense, and (b) a necessity of the means used. Both of which should be reasonable.

Doctrine of Rational Equivalence – presupposes the consideration not only of the nature and quality of the weapons used, but of the totality of the circumstances surrounding the defense, vis-à-vis the unlawful aggression. (Espinosa vs. People, G.R. No. 181071, March 15, 2010) In determining reasonable means, some factors to be considered are: a. Presence of imminent danger; b. Impelled by the instinct of self– preservation; c. Nature and quality of the weapon used by the accused compared to the weapon of the aggression; d. Emergency to which the person defending himself has been exposed to; e. Size and/or physical character of the aggressor compared to the accused and other circumstances that can be considered showing disparity between aggressor and accused; and f. The time and place of the assault. Note: This element should be interpreted liberally in favor of the lawabiding citizen. Perfect equality between the weapons used by the one defending himself and that of the aggressor is not required, neither is the material commensurability between the means of attack and defense. Rational equivalence is enough. Reason: Because the person assaulted does not have sufficient tranquility of mind to think and to calculate. (Estrada, Criminal Law Book One, 2011) NOTES: ●

A knife is more dangerous than a club. Its use is reasonable if there is no other available means of defense at the disposal of the accused and he could not coolly choose other less deadly weapons. (Estrada, Criminal Law Book One, 2011)



The means employed must meet the requirement of fair play such that if the unlawful aggression is not that fatal like

a slap on the face, a person cannot use excessive means to defend himself like using a knife or a gun. (Estrada, supra) 

Perfect equality between the weapon used by the one defending himself and that of the aggressor is NOT required. What the law requires is rational equivalence. (Estrada, supra)

NOTES: Because the person assaulted does not have the luxury of time and tranquility of mind to ponder on the manner of defense. The person defending himself cannot be expected to control his blows. The infliction of a mortal wound is justified so long as it was done at the time the elements of self-defense are still present. The person defending himself cannot be expected to coolly and serenely reflect on the consequences of his act. He cannot be expected likewise to restrain his blows or aim at a less vulnerable part of the body of the victim. This is so because a person defending himself does not have the pleasure or ease to ponder on the manner and course of action he would take. But the one defending himself must aim at his assailant and not indiscriminately fire his gun. But if the accused had fired one shot at the aggressor paralyzing him, he is not justified in firing his gun at him five times more killing him in the process. In such case, there was no more unlawful aggression to repel. He is liable for Homicide or Murder as the case may be. Settled is the rule that when unlawful aggression ceases, the defender has no longer any right to kill or wound the former aggressor otherwise retaliation and not self-defense is committed. (People vs. Vicente, G.R. No. 137296, June 26, 2003) Lack of sufficient provocation on the part of the person defending himself 1. When no provocation at all was given to the aggressor by the person defending himself; or 2. When, even if a provocation was given, it was not sufficient; or

3. When, even if the provocation was sufficient, it was not given by the person defending himself (accused); or 4. When, even if the person defending himself gave a provocation, it was not the proximate and immediate to the act of aggression. Reason: When the person defending himself from the attack by another gave sufficient provocation to the latter, the former is also to be blamed for having given the cause for the aggression. The provocation must be sufficient, which means that it should be proportionate to the act of aggression and adequate to stir the aggressor to its commission. (Estrada, supra) Burden of Proof To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to selfdefense." (Velasquez vs. People, G.R. No. 195021, March 15, 2017) In the case the accused is a police officer and the victim is a trained police officer The victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at accused. Accused was, therefore, justified in defending himself from an inebriated and disobedient colleague. Even if the victim did not point his firearm at accused, there would still be a finding of unlawful aggression on the part of the victim. A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately. Given this factual backdrop, there is reasonable basis to presume that the accused indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the accused, the latter knew that he has to be quick on the draw. It is worth emphasizing that the

victim, being a policeman himself, is presumed to be quick in firing. Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the accused to have waited for victim to point his gun before the accused fires back. (Nacnac vs. People, G.R. No. 191913, March 21, 2012) Other Circumstances Defense

involving

Self-

1. Defense of Honor 2. Defense of Property 3. Defense of Reputation Defense of Honor  The accused is justified in using the pocket knife in repelling what she believed to be an attack upon her honor. The (deceased) was alleged that on her way home one evening, the (deceased) followed her, embraced and kissed her and touched her private parts. The accused didn’t know that it was Rivera and that she was unable to resist the strength of Rivera so she got a knife from her pocket and stabbed him in defense of her honor. There being no other means of self-defense. (People vs. Dela Cruz, G.R. No. L-41674, March 30, 1935) Defense of Property (Doctrine of Self–Help) Article 429 of the New Civil Code is applicable under this paragraph. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. The actual invasion of property may consist of a mere disturbance of possession or of a real dispossession. If it is a mere disturbance of possession, force may be used against it at any time as long as it continues, even beyond the prescriptive period of forcible entry. If the invasion consists of a real dispossession force to regain possession can be used only immediately after the dispossession. (Estrada, Criminal Law Book One, 2011) a. Shooting of the victims by the accused from the window of his house while the former were proceeding with the fencing off of

appellant’s rented estate despite the latter’s plea to stop the same is disproportionate to the physical aggression of the victims. The reasonableness of the resistance is also a requirement of the justifying circumstance of self defense or defense of one’s rights under Art. 11(1), Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. (People vs. Narvaez, G.R. Nos. L33466-67, April 20, 1983) Defense of Reputation  Defendant is acquitted from charges of libel by the justification of his action through defense of reputation. If one’s reputation had been attacked by another he is justified to hit back with another libel but only if such libel is adequate to the first attack. (People vs. Chua Hiong, Court of First Instance of Manila, No. 21740, March 6, 1953) Defense of Relatives – Art. 11 (2) Basis: The justification of defense of relatives, by reason of which the defender is not criminally liable, is founded not only upon humanitarian sentiment, but also upon the impulse of blood which impels men to rush, on the occasion of great perils, to the rescue of those close to them by ties of blood. (Reyes, The Revised Penal Code: Book One, 2006, p.195) Requisites: (URP) a. Unlawful aggression; b. Reasonable necessity of the means employed to prevent or repel it; and c. In case the provocation was given by the person attacked, that the one making the defense had no part therein. Reyes, The Revised Penal Code: Book One, 2006, p.196) Mistake of Fact Even if the relative being defended is the unlawful aggressor, an honest belief of the one making the defense that such was not the fact will be justified, provided all other requisites are present. (Reyes, The Revised Penal Code: Book One, 2006, p.197)

Relatives that (SADBroSAC)

can

defended:

1. Spouse – Legitimate; 2. Ascendants–Father, Mother, Grandparents and Great Grandparents in direct line; 3. Descendants–Children, Grandchildren and Great Grandchildren in direct line; 4. Legitimate, natural or adopted Brothers and Sisters; 5. Relatives by Affinity in the same degree – parents–in–law, son or daughter–in–law, and brother or sister–in–law; and 6. Relatives by Consanguinity within the fourth civil degree – uncle and niece, aunt and nephew, first cousins. (Reyes, The Revised Penal Code: Book One, 2006, p.195) NOTE: Death of one spouse does not terminate the relationship by affinity established between the surviving spouse and the blood relatives of the deceased. (Intestate Estate of Manolita Gonzales Vda De Carungcong vs. People, G.R. No. 181409, February 11, 2010)

Defense of Stranger – Art. 11(3) Basis: What one may do in his defense, another may not do for him. Persons acting in defense of others are in the same condition and upon the same place as those who act in defense of themselves. The ordinary man would not stand idly by and see his companion killed without attempting to save his life. Requisites: (URI) 1. Unlawful aggression; 2. Reasonable necessity of the means employed to prevent or repel it; and 3. The person defending be not Induced by revenge, resentment, or other evil motive. Stranger Any person not included in the enumeration of relatives mentioned in Art. 11(2) is considered stranger for the purpose of paragraph 3. Hence, even a close friend or a distant relative is a stranger within the meaning of paragraph 3.

Effect of Absence in any of the Requisites in Self-Defense The accused should be entitled to either: a. Ordinary mitigating circumstance of incomplete defense pursuant to Art. 13(1) if only one requisite is present which should always be unlawful aggression; or b. Privileged mitigating circumstance under Art. 69, if majority, that is, two requisites is present, which should always include unlawful aggression. Avoidance of greater evil or injury – Art. 11 (4) Requisites of Doctrine of State of Necessity or Avoidance of Greater Evil (GENo) a. Evil sought to be avoided actually exists; b. Injury feared be Greater than that done to avoid it; and c. There is NO other practical and less harmful means of preventing it. (Campanilla, Criminal Law Reviewer: Volume I, 2019, p.188) “Damage to another” – this term covers injury to persons and damage to property. If the evils sought to be avoided is merely expected or anticipate or may happen in the future, Art. 11(4) is not applicable. The greater evil should not be brought about by the negligence or imprudence of the actor. Although, as a rule there is no civil liability in justifying circumstances, it is only in Art. 11(4) where there is civil liability, but the civil liability is borne by the persons benefited. In cases falling within the subdivision 4 of Art. 11, the persons who benefited from the doctrine of state necessity, shall be civilly liable in proportion to the benefit, which they may have received. As compared to the mitigating circumstance by “mere accident” under Art. 12(4), offender, under the doctrine of state necessity, deliberately caused damage to prevent a greater evil. (Reyes, The Revised Penal Code: Book One, 2006, p.202)

Fulfillment of duty or lawful exercise of right or office – Art. 11 (5) Requisites: a. That the accused acted in the performance of a duty or in the lawful exercise of a right or office; and b. That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. (Reyes, The Revised Penal Code: Book One, 2012, p.204)  In the absence of the second requisite, the justification becomes incomplete thereby the case becomes [privileged] mitigating circumstance. (People vs. Pinto Jr., G.R. No. 39519, November 21, 1991)  While self-defense and performance of duty are two distinct justifying circumstances, self-defense or defense of a stranger may still be relevant even if the proper justifying circumstance in a given case is fulfillment of duty. (Cabanlig vs. Sandiganbayan, G.R. No. 148431, July 28, 2005)  If a prisoner who was escaping disregarded the warning shots of the jail guard and there is no other remedy except to fire at him to prevent him from escaping, the guard is not criminally liable. It is his duty to prevent the escape of the prisoner and in doing so, he has the right to employ means which is not capricious, arbitrary and unreasonable. (People vs. Delima, G.R. No. L-18660, December 22, 1922)  A police officer is not required to afford the victim the opportunity to fight back. Neither is he expected – when hard pressed and in the heat of such an encounter at close quarters – to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. But he cannot be exonerated from overdoing his duty when he fatally shot the victim in the head, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the

police officers. Sound discretion and restraint dictated that a veteran policeman should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat. Shooting him in the head was obviously unnecessary. (People vs. Ulep, G.R. No. 132547, September 20, 2000)  The duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of the life of law enforcers. The directive to issue a warning contemplates a situation where several options are still available to the law enforcers. In exceptional circumstances such as this case, where the threat to the life of a law enforcer is already imminent, and there is no other option but to use force to subdue the offender, the law enforcer’s failure to issue a warning is excusable. (Cabanlig vs. Sandiganbayan, supra) Obedience to an order issued for some lawful purpose – Art. 11 (6) Requisites: (OLM) 1. That an Order has been issued by a superior; 2. That such order must be for some Lawful purpose; and 3. That the Means used by the subordinate to carry out said order is lawful. (Reyes, The Revised Penal Code: Book One, 2012, p.212-213) Art. 11(6) presupposes that what was obeyed by the accused was a lawful order; but if the accused complied with an unlawful order under a mistake of fact, he should not incur criminal liability. The subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and he is not negligent. (Tabuena vs. Sandiganbayan, G.R. No. 103501–03, February 17, 1997) Battered Woman Syndrome Note: Battered Woman Syndrome is not included in the enumerations under Art. 11. BWS is considered as one of the justifying circumstances enunciated in the case of People vs. Genosa.

Battered Woman Syndrome – refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. (Sec. 3 [c], R.A. No. 9262) Battery – refers to any act of inflicting physical harm upon the woman or her child resulting to physical and psychological or emotional distress. Elements: (RIP) 1. That the battering husband, with whom the battered wife has a marital, sexual or dating Relationship, inflicted physical harm upon her; 2. That the Infliction of physical harm must be cumulative; and 3. The cumulative abuse results to Physical and psychological or emotional distress to the woman. Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of selfdefense under the RPC. (Sec. 26, R.A. No. 9262) NOTES: 1. “Cycle of violence” includes a.

b. c.

the tension building phase; During this phase, minor battering occurs. It could be verbal or slight physical abuse or another form of hostile behavior. the acute battering incident; and It is characterized by brutality, destructiveness, and sometimes death. The tranquil, loving (or at least non-violent) phase.

The final phase of the cycle of violence begins when acute battering incident ends. The couple experience profound relief. The batterer may show tender nurturing behavior towards his partner. 

The defense should prove all three (3) phases of cycle of violence characterizing the relationship of the parties. (People vs. Genosa, G.R. No. 135981, January 15, 2004)

Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. (People vs. Genosa, supra.)

3. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/psychologists. (Sec. 26, R.A. No. 9262). Four characteristics of the syndrome 1. The woman believes that the violence was her fault; 2. She has an inability to place the responsibility for the violence elsewhere; 3. She fears for her life and/or her children’s life; and 4. She has an irrational belief that the abuser is omnipresent and omniscient. (People of the Philippines vs. Genosa, G.R. No. 135981, September 29, 2009) b. EXEMPTING CIRCUMSTANCES (Art. 12) Exempting Circumstances (or the circumstances for non-imputability) – those grounds for exemption from punishment because there is wanting in the offender any of the conditions which makes the act voluntary or negligent. General Rule: one who acts by virtue of any of the exempting circumstances commits a crime. Even there’s an exempting circumstance that exempts him from the criminal liability, such person of the accused still has civil liability. Exception: No civil liability in Art. 12(4) – Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. (Art. 101, RPC)

The following are exempt from criminal liability: (AIM CUP) 1. An Imbecile or an insane person, unless the latter has acted during a lucid interval; 2. A person 15 years of age and under; 3. A person over 15 years of age and under 18, unless he has acted with discernment, in which case, such child shall be proceeded against in accordance with RA 9344 or Juvenile Justice and Welfare Act of 2006 (Nos. 2 & 3: Minority or child in conflict with the law); 4. Any person who, while performing a lawful act with due care, causes an injury by mere Accident without fault or intention of causing it; 5. Any person who acts under the Compulsion of irresistible force; 6. Any person who acts under the impulse of an Uncontrollable fear of an equal or greater injury; and 7. Any person who fails to perform an act required by law, when Prevented by some lawful or insuperable cause. Justifying Circumstances vs. Exempting Circumstances

As to effect As to wrongfulness of the act As to existence of crime

As to civil liabilit y

JUSTIFYING CIRCUMSTANCES Affects the act NOT the actor. Act is considered to have been done WITHIN the bounds of law; hence, legitimate and lawful in the eyes of the law. Since the act is considered lawful, there is no crime.

Since there is no crime, nor a criminal, there is also no civil liability

(except Art. 11[4]).

EXEMPTING CIRCUMSTANCES Affects the actor NOT the act. Act complained of is actually wrongful, but the actor is NOT liable.

Since the act complained of is actually wrong there is a crime but since the actor acted WITHOUT voluntariness, there is no dolo or culpa. Since there is a crime committed though there is no criminal, there is civil liability (except

Art. 12[4] 12[7]).

and

Imbecility or Insanity – Art. 12 (1) Basis: The exempting circumstance of insanity or imbecility is based on the complete absence of intelligence, an element of voluntariness. Imbecile – is one who, while advanced in age, has a mental development comparable to that of children between two and seven years of age. It is one who is deprived completely of reason or discernment and freedom of the will at the time of committing the crime. (People vs. Ambal, G.R. No. L–52688, October 17, 1980) Insanity – it exists when there is a complete deprivation of intelligence or freedom of the will. Mere abnormality of mental faculties is not enough especially if the offender has not lost consciousness of his acts. (People vs. Puno, G.R. No. L–33211, July 29, 1981) NOTES: 1. Insanity and imbecility, to exempt under paragraph 1, must be complete, and they cannot be graduated in degrees in gravity. Note: Imbecility, as compared to insanity, is exempt in all cases. On the other hand, a showing that the insane acted in lucid interval upon the commission of the offense incurs criminal liability. The trial, however, will be suspended until the mental capacity of the accused be restored to afford him all the rights during trial. (Reyes, The Revised Penal Code: Book One, 2006, p.216) 2. The fact that a person behaves crazily does not mean that he is insane. A man may behave in a crazy manner but it does not necessarily and conclusively prove that he is legally so. (People vs. Florendo, G.R. No. 136845, October 8, 2003) Dementia Praecox (schizophrenia) is a form of psychosis where homicidal attack is common, because of delusions that he is being interfered with sexually, or that his property is being taken. During the period excitement, such person has no control of his acts. (People vs. Bonoan, G.R. No. L-45130, February 17, 1937) 3. Somnambulism or sleepwalking must be clearly proven to be considered as an exempting circumstance under this article.

(People vs. Gimena, G.R. No. 33877, February 6,

1931)

4. Malignant malaria is a disease that causes disturbance in the nervous system. An accused is not criminally liable for the acts committed while suffering from said disease as it presupposes lack of intelligence. (People vs. Lacena, G.R. No. 46961, January 15, 1940) 5. Feeblemindedness is not exempting but can be considered as mitigating. (People vs. Formigones, G.R. No. L–3246, November 29, 1950) 6. Epilepsy is not a pervading disease but a nerve disorder. Hence, after a seizure, the victim is normal for all intents and purposes. (People vs. Teves, G.R. No. 97435, July 14, 1995) Two Tests of Insanity: a. Test of Cognition – complete deprivation of intelligence in committing the crime. b. Test of Volition – total deprivation of freedom of will. (People vs. Rafanan, Jr., G.R. No. 54135, November 21, 1991)  But our case law shows common reliance on the test of cognition, rather than oil a test relating to "freedom of the will;" examination of our case law has failed to turn up any case where this Court has exempted an accused on the sole ground that he was totally deprived of "freedom of the will," i.e., without an accompanying "complete deprivation of intelligence." This is perhaps, to be expected since a person's volition naturally reaches out only towards that which is presented as desirable by his intelligence, whether that intelligence be diseased or healthy. (People vs. Rafanan, Jr., G.R. No. 54135, November 21, 1991) Burden of proof The defense must prove that the accused was insane at the time of commission of the crime because the presumption is always in favor of sanity. (People vs. Bascos, G.R. No. 19605, December 19, 1922)

Effect on Criminal Liability of Insanity across all the applicable stages Time when accused suffers insanity At the time of the commission of the crime.

Effect on criminal liability Exempt from liability.

During trial.

Proceedings will be suspended and accused is committed to a hospital.

(Reyes, The Revised Penal Code: Book One, 2012, p.218)

(Id.) After Judgment or While Serving Sentence.

Execution of judgment is suspended; the accused is committed to a hospital. The period of confinement in the hospital is counted for the purpose of the prescription of the penalty.

SUSPENSION OF THE EXECUTION AND SERVICE OF THE PENALTIES IN CASE OF INSANITY When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Art. 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. (Art. 79, RPC) Rules regarding execution and service of penalties in case of insanity: a. When a convict becomes insane or imbecile after final sentence has been pronounced, the execution of said sentence is suspended only as regards the personal penalty; b. If he recovers his reason, his sentence shall be executed, unless the penalty has prescribed;

Even if while serving his sentence, the convict becomes insane or imbecile, the above provisions shall be observed; d. But the payment of his civil or pecuniary liabilities shall not be suspended. (Reyes, The Revised Penal Code: Book One, 2017, p. 837) Other Instances when sentence may be suspended are: Where the accused became insane before sentence could be promulgated (Art.79, RPC); b. Where the offender needs to be confined in a rehabilitation center because of drugdependency although convicted of the crime charged; c. Where the crime was committed when the offender is under 18 years of age and he is found guilty thereof in accordance with R.A. No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006," but the trial court subjects him to appropriate disposition measures as prescribed by the Supreme Court in the Rule on Juveniles in Conflict with the Law. a.

Minority – Art. 12 (2) (3) Basis: The exempting circumstance of minority is based on the complete absence of intelligence. Child in Conflict with the Law – refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (Sec. 4 [e], R.A. No. 9344, as amended by R.A. No. 10630) Discernment – is the mental capacity of the child at the time of the commission of the offense to understand the differences between right and wrong and the consequences of the wrongful act. (Sec. 4, A.M. No. 01-1-18-SC, Revised Rule on Children in Conflict with the Law) Minimum age and determination of criminal responsibility Age of the Child 15 years of age or under

Criminal Liability EXEMPT

Over 15 but below 18 years of age who acted without discernment Over 15 but below 18 years of age who acted with discernment .

EXEMPT Subjected program.

intervention

As a rule, NOT EXEMPT from criminal liability.

Exception:

Even if the same child committed a crime with discernment, he is exempted from criminal responsibility and no Information should be filed against the child if the offense committed are any of these: o status offenses; o vagrancy and prostitution under Sec. 202 of the RPC; o mendicancy under P.D. No. 1563; and o sniffing of rugby under P.D. 1619. (Revised Rules on

Children in Conflict of Law)

NOTE: May still avail the diversion program provided that: a. Where the imposable penalty is ≤ 6 years, the Punong Barangay or law enforcement officer conducted mediation, family conferencing and conciliation. b. Where the imposable penalty is more than 6 years, diversion measures is only upon the discretion of the court. Prosecutor to conduct a Preliminary Investigation and file an information upon determination of probable cause in the following instances: a. he does not qualify for diversion; child, his/her parents or guardian does not agree to diversion; b. Upon determination by the prosecution that the diversion is not appropriate for the child. (R.A. No. 9344, as amended by

R.A. No. 10630)

NOTE: The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

However, the child shall be subjected to an intervention program pursuant to Sec. 20 of this Act. (Sec. 6, R.A.

9344, as amended by R.A. 10630)

Accident without fault or intention causing it – Art. 12 (4)

Acting under the compulsion of an irresistible force – Art. 12 (5)

Basis: The exempting circumstance is based on lack of intelligence and intent. The person does not commit either an intentional or a culpable felony. (Reyes, The Revised Penal Code: Book One, 2006, p.229)

Basis: The exempting circumstance is based on the complete absence of freedom, an element of voluntariness.

Note: This is an exception to the general rule that exempting circumstances under Art. 12 exempt the accused from civil liability. Here, there’s no civil liability. (Art. 101)

1. That the compulsion is by means of Physical force; 2. That the physical force must be Irresistible; and 3. That the physical force must come from a Third person. (Reyes, The Revised Penal Code: Book One, 2012, p.234)

Elements: (WILD) a. A person is performing a Lawful act; b. With Due care; c. He causes an Injury to another by mere accident; and d. Without fault or intention of causing it. (Reyes, The Revised Penal Code: Book One, 2012, p.229) Accident – is something that happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. If the consequences are plainly foreseeable, it will be a case of negligence. When the act is with fault, it will fall under culpa; when with intent it will become an intentional felony. (Reyes, The Revised Penal Code: Book One, 2012, p.231) NOTE: Accident and self–defense are two incompatible defenses. Accident presupposes lack of intention, while self–defense assumes voluntariness, but induced only by necessity. (People vs. Lao–as, G.R. No. 126396, June 29, 2001) When claim of accident not appreciated a. Repeated blows negate claim of wounding by mere accident (People vs. Taylaran, G.R. No. L– 49149, October 23, 1981); and b. Accidental shooting is negated by threatening words preceding it and still aiming the gun at the prostrate body of the victim, instead of immediately helping him. (People vs. Reyes, G.R. No. L–33154, February 27, 1976)

Elements: (TIP)

 The force must be so irresistible so as to reduce the actor to a mere instrument not only without a will but against his will. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. (People vs. Loreno, G.R. No. L-54414, July 9, 1984) The irresistible force must be either physical force or violence and must be induced by a third person and produces an effect upon the individual that in spite of all resistance, it reduces him to a mere instrument and as such incapable of committing a crime. NOTE: Passion and obfuscation cannot amount to irresistible force. (Reyes, The Revised Penal Code: Book One, 2012, p. 235) Acting under the impulse of an uncontrollable fear – Art. 12 (6) Basis: The exempting circumstance is based on the complete absence of freedom, an element of voluntariness. “Actus me invito factus non est meus actus.” (An act done by me against my will is not my act). (Reyes, The Revised Penal Code: Book One, 2006, p. 240) Elements: 1. That the threat, which causes the fear, is of an evil greater than or at least equal to that which he is required to commit; and

That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it. (US vs. Elicanal, G.R. No. 11439, October 28, 1916)

NOTE: Just like irresistible force, uncontrollable fear is founded on duress or lack of voluntariness on the part of the actor. There must be no possibility of avoiding or escaping from the situation creating fear, such as the case of the hostage who decapitated his fellow hostage because otherwise his captors shall kill him. Note: A threat of future injury is not enough. It must be real, imminent or reasonable fear for one’s life or limb and should not be mere speculative. The uncontrollable fear may also be directed against a third person such as the wife of the accused. To appreciate duress as a valid defense, a threat of future injury is not enough. It must be clearly shown that the compulsion must be of such character as to leave no opportunity for the accused to escape. (People vs. Palencia, G.R. No. L– 38957, April 30, 1976) Irresistible force vs. uncontrollable fear Irresistible force The offender uses violence or physical force to compel another person to commit a crime.

Uncontrollable fear The offender employs intimidation or threat in compelling another to commit a crime.

(Reyes, The Revised Penal Code: Book One, 2006, p.240)

Insuperable or lawful causes – Art. 12 (7) Basis: The exempting circumstance exempts the accused from criminal liability, because he acts without intent, the third condition of voluntariness in intentional felony. Elements: (ReFIL) 1. That an act is Required by law to be done; 2. That a person Fails to perform such act; and 3. That his failure to perform such act was due to some Lawful or Insuperable cause. (Reyes, The Revised Penal Code: Book One, 2006, p.240)

Insuperable Cause – a cause which prevents a person to do what the law requires. The law imposes a duty on the offender to perform an act but his failure to do so is due to a lawful or insuperable cause. There is no civil liability because his acts are lawful. For instance, Art. 125 provides for the number of hours when a person arrested must be delivered to the judicial authorities. If the peace officers failed to do so because of circumstances beyond their control such as long holidays when the judicial offices are not open, that is insuperable cause and the peace officers will not be liable under Art. 125. (Reyes, The Revised Penal Code: Book One, 2006, p.241) c. MITIGATING CIRCUMSTANCES (Art. 13) Mitigating Circumstances – are those, which, if present in the commission of the crime, do NOT entirely, free the actor from criminal liability, but serve only to reduce the penalty. (Reyes, The Revised Penal Code: Book One, 2006, p.250) Examples of Mitigating Circumstances: (IONS-VP VP-IS) 1. Incomplete justifying or exempting circumstances; 2. Over 15 and under 18, if there is discernment, or over 70 years old; 3. No intention to commit so grave a wrong (or Praeter Intentionem); 4. Sufficient Threat or Provocation on the part of the offended party; 5. Vindication of grave offense; 6. Passion and obfuscation; 7. Voluntary surrender and confession of guilt; 8. Physical defect of offender; 9. Illness of the offender; and 10. Similar or analogous circumstances. Kinds of Mitigating Circumstances: ORDINARY MITIGATING CIRCUMSTANCES Can be offset by a generic aggravating circumstance.

PRIVILEGED MITIGATING CIRCUMSTANCES Cannot be offset by any aggravating circumstance.

(Reyes, The Revised Penal Code: Book One, 2006, p. 250-251)

Priviledged Mitigating Circumstances: 1. When the minor is over 15 but below 18 years of age who acted with discernment (Art. 68, RPC, as amended by R.A No. 9344); 2. Incomplete justifying or exempting circumstance (Art. 69, RPC); 3. If there are two or more mitigating circumstances and there is no aggravating circumstance that attends the commission of the offense (Art. 64[5], RPC); 4. Abandonment without justification of the spouse who committed adultery. (Art. 333[3], RPC) Mitigating Circumstances are not considered in the following cases: a. When the penalty is single and indivisible (Art. 63, RPC); b. In felonies through negligence (Art. 365, RPC); c. When the penalty is only a fine imposed by an ordinance (People vs. Ching Kuan, G.R. No. L48515, November 11, 1942); and

Over 15 and under 18, if there is discernment, or over 70 years old – Art. 13 (2) LEGAL EFFECTS OF VARIOUS AGES OF OFFENDER 15 years old and Exempting circumstance. below Exempting circumstance – if he acted WITHOUT discernment. (Art. 12[3],

RPC, as amended by R.A. No. 9344) Privileged mitigating circumstance –

As a rule, if he acted WITH discernment, penalty is reduced by one (1) degree lower than that imposed.

(Art. 68[2], RPC)

Over 15 but less than 18 years old

Incomplete Justifying or Exempting Circumstances – Art. 13 (1) Incomplete Defense

Justifying

Circumstance

In self-defense, defense of relative and defense of stranger, unlawful aggression must be present, it being an indispensable requisite. What is absent is either one or both of the last two requisites. Unlawful aggression must be proved first in order for self-defense to be successfully pleaded, whether complete or incomplete. Once the accused admits the commission of the offense charged but raises a justifying circumstance as a defense, the burden of proof is shifted to him. (People vs. Concillado, G.R. No. 181204, November 28, 2011)

Exemption: Even if the same child committed a crime with discernment, he is exempted from criminal responsibility and no Information should be filed against the child if the offense committed are any of these: (a) status offenses; (b) vagrancy and prostitution under Sec. 202 of the RPC; (c) mendicancy under P.D. No. 1563; and (d) sniffing of rugby under P.D. No. 1619. (Revised

Rules on Children Conflict of Law) Child In Conflict with the Law, under 18 years of age who acted with discernment. 18 years old or over 70 years old or over

Sentence suspended.

Full criminal responsibility. Mitigating circumstance .

In complete justifying circumstance of state of necessity

No intention to commit so grave a wrong (or Praeter Intentionem) – Art. 13 (3)

Avoidance of greater evil or injury is a justifying circumstance if all the three requisites mentioned in paragraph 4 of Article 11 are present. But if any of the last two requisites is absent, there is only a mitigating circumstance. (Reyes, The Revised Penal Code Book One, 2011, pp. 257)

NOTES: Can be taken into account only when the facts proven show that there is notable and evident disproportion between the means employed to execute the criminal act and its consequences. (US vs. Reyes, G.R. No. 12635, September 25, 1917)

A person must be called to account for all the natural and logical consequences of his felonious act; and hence must be deemed to have incurred criminal liability, although the felonious act he committed might have been different from that which he intended. (People vs. Buenamer, G.R. No. 2062277, August 31, 2016) The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim. (People vs. Sales, G.R. No. 177218, October 3, 2011) Intention may be ascertained by considering: a. The weapon used; b. The nature of injury inflicted; c. The manner it is inflicted; or d. The part of the body injured. when the Rule on Praeter Intentionem would NOT be applicable: Instances

1. Felonies by negligence; 2. Cases where there is no material harm done; and 3. Unintentional abortion. Sufficient Provocation – Art. 13 (4) Provocation – any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone. Requisites: (SOI) 1. That the provocation must be sufficient; 2. That it must originate from the offended party; and 3. That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked. Sufficient – it means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. (People vs. Nabora, G.R. No. 48101, November 22, 1941) NOTES:  The threat should not be offensive and positively strong. Otherwise, the threat to inflict real injury is an unlawful aggression,

which may give rise to self–defense. (US vs. Guysayco, G.R. No. 4912, March 25, 1909)  The liability of the accused is mitigated only insofar as it concerns the harm inflicted upon the person who made the provocation, but not with regard to the other victims who did not participate in the provocation. (US vs. Malabanan, G.R. No. 3964, November 26, 1907) Vindication of grave offense – Art. 13 (5) Requisites: (GV) 1. That there must be a grave offense done the one committing the felony (offender), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree; and 2. That the felony is committed in immediate vindication of such grave offense. Immediate – means proximate and allows for a lapse of time as long as the offender is still suffering from the mental agony brought about by the offense to him. It is unlike in sufficient provocation where there should be no lapse of time between the provocation and the commission of the crime. (Reyes, The Revised Penal Code: Book One, 2006, p.280) Grave offense – includes any act that is offensive to the offender or his relatives and the same need not be any crime or felony. (Id.) NOTES: 1. A lapse of time is allowed between the vindication and the doing of the grave offense. 2. The question whether or not a certain personal offense is grave must be decided by the court, having in mind the social standing of the person, the place, and the time the insult was made. (Estrada, Criminal Law Book One, 2011) Provocation vs. Vindication

As to whom commi t-ted

PROVOCATION

VINDICATION

It is made directly only to the person committing the felony.

The grave offense may be committed also against the offender’s relatives mentioned by law.

As to allowe d lapse of time

As to nature

It is necessary that the provocation or threat immediately preceeded the act, i.e. that there be no interval of time between the provocation and the commission of the crime. It is mere spite against the one giving the provocation or threat.

The vindication of the grave offense may be proximate, which admits of an interval of time between the grave offense done by the offended party and the commission of the crime by the accused. It concerns the honor of a person.

(Reyes, The Revised Penal Code: Book One, 2006, p.282)

Passion and Obfuscation – Art. 13 (6) Basis: Passion or Obfuscation is a mitigating circumstance because the offender who acts with passion and obfuscation suffers a diminution of his intelligence and intent. (Reyes, The Revised Penal Code: Book One, 2006, p.284) Requisites: (VUNOS)   

That there be an act, both Unlawful and Sufficient to produce a condition of mind; That there was NO lapse of appreciable time between the victim’s offending act and the commission of the crime by the offender; and The act causing such obfuscation was committed by the Victim himself. (Estrada, Criminal Law Book Book One, 2011, p.125)

NOTES:  It is a mitigating circumstance only when the same arises from lawful sentiments. (People vs. Bates, G.R. No. 139907, March 28, 2003) Since the alleged provocation which caused the obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or ill–treatment of the appellants by the deceased, those two mitigating circumstances cannot be considered as two distinct and separate circumstances but should be treated as one. (People vs. Pagal, G.R. No. L–32040, October 25, 1977)

The act producing obfuscation must not be far removed from the commission of the crime by a considerable length of time, during which the accused might have regained his normal equanimity. The crime committed must be the result of a sudden impulse of natural and uncontrollable fury. Passion and Obfuscation vs. Provocation (Reyes, The Revised Penal Code: Book One, 2006, p.299) Passion and Provocation Obfuscation Produced by an impulse The provocation must which may be caused by come from the injured provocation. party. Offense, which causes a Must immediately condition of the mind to precede the commission commit a felony, need of the crime. not be immediate. It is only required that the influence thereof lasts until the moment the crime is committed. The effect is loss of reason and self–control on the part of the offender.

Passion and Obfuscation vs. Irresistible Force Passion and Obfuscation Mitigating circumstance. It cannot give rise to irresistible force as it does not involve physical force. Passion and obfuscation is in the offender himself. It must arise from lawful sentiments.

Irresistible Force Exempting circumstance. It requires physical force.

It must come from a third person. It is unlawful.

(Reyes, The Revised Penal Code: Book One, 2012, p.231)

Passion and Obfuscation cannot co-exist with:  Vindication of grave offense;  Evident premeditation;  Treachery; and  Lack of intent to commit so grave a wrong. (Reyes, The Revised Penal Code: Book One, 2006, pp. 296-297)

NOTE: Vindication of grave offense cannot coexist with passion and obfuscation EXCEPT when there are other facts, although closely connected with the fact upon which one circumstance is present, the other circumstance may be appreciated as based on other fact. (People vs. Diokno, G.R. No. 45100. October 26, 1936)

the spontaneity of the surrender. Hence, voluntary surrender presupposes repentance. Going to the police station to clear one’s name does NOT show any intent to surrender unconditionally to the authorities. (Reyes, supra)

Voluntary surrender and confession of guilt – Art. 13 (7)

 The fact that the order of arrest had already been issued is no bar to the consideration of the circumstance because the law does not require that the surrender be prior to the order of arrest. (Rivera vs. CA, G.R. No. 125867, May 31, 2000) However, if the accused merely submitted himself to the authorities after serving his warrant, there is no mitigating to be appreciated.  Surrender of weapons cannot be equated with voluntary surrender. (People vs. Verges, G.R. No. L-36882, July 24, 1981)

Requisites of voluntary surrender: (NaSV) Note: Offender had Not been actually Arrested; Offender Surrendered himself to a person in authority or to the latter’s agent; and  Surrender was Voluntary, i.e. spontaneous and must show the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt or he wishes to save them the trouble and expense incidental to his search and capture. (Estacio vs. Sandiganbayan, G.R. No. 75362, March 6, 1990) Note: Voluntary surrender must be made to a person in authority or his agent. The law does not require that the surrender must be before or after the issuance of a warrant of arrest. Surrender to the Treasurer is not mitigating because he is a public officer but not a person in authority. (Estrada, Criminal Law Book One, 2011) Person in Authority – One directly vested with jurisdiction, which is the power to govern or to execute the laws, whether as an individual or as a member of some court or government corporation, board or commission. (Art. 152[1], RPC, as amended by R.A. No. 1978) Agent of a Person in Authority – is a person, who, by direct provisions of the 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 and any person who comes to the aid of persons in authority. (Art. 152[2], RPC, as amended by R.A. No. 1978). Spontaneous – emphasizes the idea of an inner impulse, acting without external stimulus. The conduct of the accused, not his intention alone, after the commission of the offense, determines

NOTES:

Requisites for plea of guilty: (SOP)  That the offender Spontaneously confessed his guilt;  That the confession of guilt was made in Open court, that is, before the court competent that is to try the case; and  That the confession of guilt was made Prior to the presentation of evidence for the prosecution. (Reyes, The Revised Penal Code: Book One, 2006, p.312) NOTE: Plea of guilty must be made in the court of original jurisdiction. If it is made during an appeal, no mitigating circumstance can be appreciated. Effect of an Improvident Plea of Guilt The accused must be acquitted if the only evidence of his guilt is his improvident guilt plea due to the prodding of his lawyer from the Public Attorney’s Office. (People vs. Mendoza, G.R. No. 80845, March 1994)  Where in the original information the accused pleaded not guilty, but he pleaded guilty to the amended information, it is considered a mitigating circumstance. (People vs. Ortiz, G.R. No. L–19585, November 29, 1965)

 An improvident plea of guilty on the part of the accused when capital crimes are involved should be avoided since he might be admitting his guilt before the court and thus forfeit his life and liberty without having fully comprehended the meaning and import and consequences of his plea. (People vs. Gumimba, G.R. No. 174056, February 27, 2007) Physical defect of offender – Art. 13 (8) Basis: The mitigating circumstance considers the fact that one suffering from physical defect, which restricts one’s means of action, defense, or communication with fellow beings, does not have complete freedom of action and, therefore, there is diminution of that element of voluntariness. Physical defect referred herein such as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited. Furthermore, this paragraph does not distinguish between educated and uneducated deaf–mute or blind persons. Not any physical defect will mitigate an offense. It will only do so if it has some relation to the crime committed. If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was, he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back. (Id.) Illness of the offender – Art. 13 (9) Basis: The mitigating circumstance is based on the diminution of intelligence, voluntariness and intent. (Id.) Requisites: (DiCon) 1. That the illness of the offender must Diminish the exercise of his will power; and 2. Such illness should NOT deprive the offender of Consciousness of his acts (if totally deprived of consciousness, the offender is exempted).  This paragraph includes illness of the mind not amounting to insanity,

kleptomania, feeblemindedness, and mistaken belief that killing witches was for public good and illness of nerves or moral faculty. (Reyes, The Revised Penal Book One, 2012, p.320) Similar or analogous circumstances – Article 13 (10) It authorizes the court to consider in favor of the accused “any other circumstance of a similar nature” and analogous to those mentioned in paragraphs 1-9 of Art. 13. Examples:  Restitution may be considered in malversation of public funds analogous to voluntary plea of guilty (Nizurtado vs. Sandiganbayan, G.R. No. 107383, December 7, 1994);  That the petitioner voluntarily took the cow to the municipal hall to place it unconditionally in the custody of the authorities and thus save them the trouble of recovering the cow, can be analogous to voluntary surrender and should be considered in his favor (Canta vs. People, G.R. No. 140937, February 28, 2001);  Impulse of jealousy, similar to passion and obfuscation(Reyes, The Revised Penal Code: Book One, 2012, p. 336); Note: Over 60 years old with failing sight, similar to over 70 years of age under par.2; Outrage feeling of unpaid creditor, as akin to vindication or obfuscation (Reyes, The Revised Penal Code: Book One, 2012, p. 336);  Extreme poverty, as similar to a state of necessity, which may apply, to crimes against property but not of violence, such as murder (People vs. Agustin, G.R. No. L–18368, March 31, 1966);  Appeal to the esprit de corps of the accused, as analogous to passion;  Wartime state of confusion resulting in illegal possession of firearm after the liberation, as being similar to lack of intent to commit so grave a wrong;

 Voluntary return of funds malversed by the accused, as equivalent to voluntary surrender; (People vs. Velasquez, No. 47741. Abril 28, 1941) and testifying for the prosecution without being discharged from the information, as similar to plea of guilty. d. AGGRAVATING CIRCUMSTANCES (Art. 14) Aggravating Circumstances – are those circumstances, which if attendant in the commission of the crime, serve to increase the resulting penalty without, however, exceeding the maximum penalty provided by law for the offense. (Reyes, The Revised Penal Code: Book One, 2006, p.327) Examples of Aggravating Circumstances: 1. Taking advantage of public position; 2. Crime committed in contempt of or with insult to public authorities; 3. Disrespect due to age, sex, or rank or the crime is committed in the dwelling of the offended party; 4. Abuse of confidence or obvious ungratefulness; 5. Crime committed in the Palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharged of their duties, or in a place dedicated to religious worship; 6. Night time, uninhabited place or by a band; 7. On the occasion of calamity or misfortune; 8. Aid of armed men or persons who insure or afford impunity; 9. Recidivism (Reincidencia); 10. Reiteracion or Habituality; 11. In consideration of price, reward or promise; 12. By means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin; 13. Evident premeditation; 14. Craft, fraud or disguise; 15. Abuse of superior strength or means taken to weaken the defense; 16. Treachery (Alevosia); 17. Ignominy; 18. Unlawful entry; 19. Breaking of wall, roof, floor, door, or window;

20. With the aid of persons under 15 years of age, Use of motor vehicles and other similar means; and 21. Cruelty. Kinds of (GSQIS)

Aggravating

Circumstances

Generic – applies to all crimes and can be offset by mitigating circumstances; but if NOT offset, would affect only the maximum of the penalty prescribed.  Crime committed in contempt of or with insult to the public authorities;  Crime committed in the dwelling of the offended party;  Abuse of confidence or obvious ungratefulness;  Crime committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged their duties or place of worship;  Night time, uninhabited place, or band;  Recidivism;  Habituality;  Craft, fraud or disguise;  Crime is committed after an unlawful entry;  Means of commission of the crime, a wall, roof, floor, door, or window be broken; and  Crime be committed with the aid of persons under 15 years of age. Qualifying – those that changes the nature of the crime to a graver one, or brings about penalty next higher in degree and cannot be offset by mitigating circumstance.  Treachery;  Evident premeditation; and  Art. 248 enumerates the qualifying aggravating circumstances which qualify the killing of person to murder. NOTE: Once a circumstance is used to qualify a crime, it can no longer be appreciated as a generic aggravating. Inherent – those that must of necessity accompany the commission of the crime (Art. 62[2], RPC), therefore not considered in increasing the penalty to be imposed.

 Evident premeditation is inherent in robbery, theft, estafa, adultery and concubinage;  Abuse of public office in bribery;  Breaking of a wall or unlawful entry into a house in robbery with the use of force upon things;  Fraud in estafa;  Deceit in simple seduction; and  Ignominy in rape. Special – those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances. 

 



 

Complex crimes (Art. 48, RPC); Use of unlicensed firearm in homicide or murder; Taking advantage of public position and membership in an organized/syndicated crime group (Art. 62[1][a], RPC); Error in personae (Art. 49, RPC); Quasi–recidivism. (Art. 160, RPC) (Estrada, Criminal Law Book One, 2011) and Taking advantage of public position; (RA No. 7659 and Art. 62 of RPC)

Generic Aggravating vs. Qualifying Aggravating (Reyes, The Revised Penal Code: Book One, 2006, p.329) GENERIC QUALIFYING AGGRAVATING AGGRAVATING As to its effect Increases the penalty Gives the crime its which should be imposed proper and exclusive upon the accused to the name and places the maximum period but author thereof in such a without exceeding the situation as to deserve limit prescribed by law. no other penalty than that specially described by law for said crime. As to whether it can be offset by a mitigating circumstance May be offset by an Cannot be offset by a ordinary mitigating mitigating circumstance circumstance since it is since it is considered an not an ingredient of the ingredient of the crime. crime.

Rules on Aggravating Circumstances Aggravating circumstances shall not be appreciated if:  They constitute a crime specially punishable by law; or  They are included by law in defining a crime and prescribing a penalty therefore. (Art. 62[1], RPC)  The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (Art. 62[2], RPC)  Aggravating circumstances which arise: (a) from the moral attributes of the offender; (b) from his private relations with the offended party; or (c) from any personal cause, shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (Art. 62[3], RPC)  The circumstances which consist: (a) in the material execution of the act; or (b) in the means employed to accomplish it, shall serve to aggravate the liability of those persons who had knowledge of them at the time of the execution of the act or their cooperation therein. Exception: When there is proof of conspiracy in which case the act of one is deemed to be the act of all, regardless of lack of knowledge of the facts constituting the circumstance (Art. 62[4], RPC).  Aggravating circumstances, regardless of its kind should be specifically alleged in the information and proved as fully as the crime itself in order to increase the penalty. (ROC, Rule 110, Sec. 9) Such circumstances are not presumed. (People vs. Legaspi, G.R. Nos. 136164–65, April 20, 2001) When there is more than one qualifying aggravating circumstance present, one of them will be appreciated as qualifying aggravating while the others will be considered as generic aggravating. Abuse of Official Position – Art. 14 (1) Basis: The aggravating circumstance is based on the greater perversity of the offender, as shown by the personal circumstance of the offender and

also by means used to secure the commission of the offense. (Reyes, The Revised Penal Code: Book One, 2006, p.335) NOTES: ●

●

Abuse of official position to be considered aggravating, the public official must use influence, prestige and ascendancy, which his office gives him in realizing his purpose. That accused used his service firearm in shooting the victim should not be considered as taking advantage of public position. (People vs. Amion, G.R. No. 140511, March 1, 2001) Wearing of uniform of the public officer when he committed the crime is not tantamount to taking advantage of his public position. (People vs. Pantoja, G.R. No. L-18793, October 11, 1968) The aggravating circumstance is applicable only when the offender is a public officer who takes advantage of his position. When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum, regardless of mitigating circumstances. (Art. 62(1[a]), as amended by R.A. No. 7659) This circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime.

Crime committed in Contempt of or with Insult to Public Authorities – Art. 14 (2) Basis: The aggravating circumstance is based on the greater perversity of the offender, as shown by his lack of respect for the public authorities. (Reyes, The Revised Penal Code: Book One, 2012, p.340) Requisites: (PENK) 1. That the public authority is Engaged in the exercise of his official functions. 2. That he who is thus engaged in the exercise of said functions is Not the person against whom the crime is committed; and 3. That the offender Knows him to be a public authority

4. His Presence has not prevented the offender from committing the criminal act. (Id.) Public authority – sometimes called a person in authority, is a public officer who is directly vested with the power to govern and execute laws. The following are persons in authority: the councilor, mayor, governor, barangay captain, and barangay chairman are also persons in authority (Art. 152, as amended by P.D. No. 1232); even a public school teacher is a person in authority under CA 578 amending Art. 152. So is the town municipal health officer, or a nurse, municipal councilor or an agent of the BIR. NOTE: This is not applicable when crime is committed in the presence of an agent only. If the crime committed is against a public authority while he is in the performance of his official duty, the offender commits direct assault (Art. 148) because it is not a crime committed “in contempt of or with insult” to him, but a crime directly committed against him. (Reyes, The Revised Penal Code: Book One, 2006, p.341) Crime committed with insult or lack of regard due to the offended party by reason of age, sex, or rank or the crime is committed in the dwelling of the offended party – Art. 14 (3) Basis: The aggravating circumstances are based on the greater perversity of the offender, as shown by the personal circumstances of the offended party and the place of the commission of the crime. (Reyes, The Revised Penal Code: Book One, 2012, p.343) NOTE: When all four aggravating circumstances attended to the commission of the crime, they have the weight of one aggravating circumstance. These four circumstances show lack of respect to the offended party. There must be proof that the offender deliberately intended to offend or insult the offended party. They are considered in crimes against persons and honor but not in crimes against property.

These circumstances cannot co–exist with passion or obfuscation where the offender lost his control or reason. (Reyes, The Revised Penal Code: Book One, 2006, p.343) Rank refers to the designation or title of distinction used to fix the relative position of the offended party in reference to others. There must be a difference in the social condition of the offender and the offended party. (People vs. Rodil, G.R. No. L-35156 , November 20, 1981) Circumstances where rank aggravated the crime committed: ● The killing of a staff sergeant by his corporal; ● The killing of the Assistant Chief of Personnel Transaction of the CSC by a clerk; ● The murder by a pupil of his teacher; ● The murder of a municipal mayor; ● The murder of a city chief of police by the chief of the secret service division; ● Assault upon a 66-year old Judge of the CFI by a justice of peace; ● The killing of a Spanish consul by his subordinate; and ● The killing of an army general. (Estrada, Criminal Law Book One, 2011) Age refers to the time that a person or a thing has existed since birth or beginning; or may refer to old age or the tender age of the victim. Does age pertain only to old age? – No, it also includes tender age. JV was barely six years old when ruthlessly stabbed 14 times before his body was submerged in the pail. It was an error not to have considered his age as an aggravating circumstance. (People vs. Lapan, G.R. No. 88300, July 6, 1992) Sex refers to the female sex, not to the male sex. Disregard of sex is NOT aggravating in the absence of evidence that the accused deliberately intended to offend or insult the sex of the victim or showed manifest disrespect to her womanhood. (People vs. Puno, G.R. No. L–33211, June 29, 1981) NOTES: ● Sex is not aggravating in Parricide, Rape,

Forcible Abduction because being a woman is an element of the crime.

● Disregard of rank, age or sex is essentially

applicable only to crimes against person or honor. Thus, it is not proper to consider this aggravating circumstance in crimes against property. Robbery with homicide is primarily a crime against property and not against persons. Homicide is a mere incident of robbery, the latter being the main purpose and object of the criminal. (People vs. Pagal, G.R. No. L–32040, October 25, 1977)

Dwelling includes dependencies, staircase, and enclosures under the house. It is not necessary that the house is owned by the offended party. It may include a room in a boarding house, for home is that which the law seeks to protect or uphold whether the dweller is a lessee, a boarder or a bed spacer. (People vs. Dela Torre, G.R. No. 98431, January 15, 2002) NOTES:  A dwelling must be a building or structure, exclusively used for rest and comfort. Where the crime was committed in a store, which is about 15 meters away from the complainant’s house, dwelling cannot be considered. The store cannot be considered a dwelling or even a dependency of complainant’s home. (People vs. Joya, G.R. No. 79090, October 1, 1993)  Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy. The offender need not enter the dwelling. Dwelling is aggravating even if the accused shot the deceased from the outside of the latter’s house. It is enough that the victim was attacked inside his own abode, although the assailant might have devised means to perpetrate the assault from the outside. (People vs. Bagsit, G.R. No. 148877 , August 19, 2003)  Dwelling is aggravating if the victim was taken from his house although the offense was not completed therein. (People vs. Dela Torre, G.R. No. 98431. January 15, 2002)

Dwelling is NOT following cases:

aggravating

the

 When both the offender and the offended party are occupants of the same house, EVEN IF the offender is a servant in the house. (People vs. Caliso, G.R. No. 37271, July 1, 1933) Exception: In case of adultery in the conjugal dwelling, the same is aggravating. However, if the paramour also dwells in the conjugal dwelling, the applicable aggravating circumstance is abuse of confidence. (US vs. Ibañez, G.R. No. 10672, October 26, 1915)  When robbery is committed by the use of force upon things, dwelling is NOT aggravating because it is inherent. (US vs. Cas, G.R. No. 5071, August 18, 1909) NOTE: But dwelling is aggravating in Robbery with Violence Against or Intimidation of Persons because this type of robbery can be committed without the necessity of trespassing or violating the sanctity of the offended party’s house. (People vs. Oranza, G.R. No. 127748, July 25, 2002)  In the crime of trespass to dwelling, it is inherent or included by law in defining the crime.  When the owner of the dwelling gave sufficient and immediate provocation. Such provocation must be:  Given by the owner of the dwelling;  Sufficient; and  Immediate to the commission of the crime. If all these conditions are present, the offended party is deemed to have given the provocation, and the fact that the crime is committed in the dwelling of the offended party is NOT an aggravating circumstance. (Reyes, The Revised Penal Code: Book One, 2012, p. 364) The victim is NOT a dweller of the house. NOTE: Dwelling is not included in treachery. Abuse of confidence or Obvious ungratefulness – Art. 14 (4) Basis: The aggravating circumstance is based on the greater perversity of the offender, as shown by the means and ways employed. (Reyes, The Revised Penal Code: Book One, 2006, p.357)

Requisites: (FAT) ● ● ●

Offended party has Trusted the offender; Offender Abused that trust by committing a crime against the offended party; and Abuse of confidence Facilitated the commission of the crime. (Id.)

This circumstance exists only when the offended party has trusted the offender who later abuses such trust by committing the crime. The abuse of confidence must be a means of facilitating the commission of the crime. The culprit taking advantage of the offended party’s belief that the former would not abuse said confidence. Abuse of confidence is inherent in some felonies, thus not considered as an aggravating circumstance, such as malversation (Art. 217, RPC), qualified theft (Art. 310, RPC), estafa by conversion or misappropriation (Art. 315, RPC) and qualified seduction. (Art. 337, RPC) Obvious Ungratefulness Requisites: (CAMOT)  Offended party Trusted the accused;  Accused Abused such trust by committing a crime against the offended party;  The act is committed with Obvious ungratefulness; and  There must be a Clear and Manifest ungratefulness on the part of the accused. NOTE: Ungratefulness must be obvious, i.e. manifest and clear. Thus, this aggravating circumstance was present in the case of the accused who killed his father-in-law in whose house he lived and who partially supported him. (People vs. Floresca, G.R. Nos. L–8614–15, May 31, 1956) Crime is committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharged of their duties, or in a place dedicated to religious worship –Art. 14 (5) Basis: The aggravating circumstance is based on the greater perversity of the offender, as shown by the place of the commission of the crime, which must be respected. (Reyes, The Revised Penal Code: Book One, 2006, p.361)

This aggravating circumstance merely requires that the crime be committed in the places specified – Palace of the Chief Executive, or in his presence, or in a place dedicated to religious worship. It is necessary though that the offender must have sought the above places for the commission of the crime which shows his lack of respect for the places enumerated. With regard to “where public authorities are engaged in the discharged of their duties”, it is indispensable that public authorities must be actually engaged in the performance of duty.

When Aggravating:

Place where Public Authorities are Engaged in the Discharge of their Duties vs. Contempt or Insult to Public Authorities (Campanilla, Criminal Law Reviewer: Volume I, 2019, p. 229)

a. When the crime was the result of a succession of acts which took place within the period of two hours commencing from 5:00PM to 7:00PM. When treachery concurred with night time in the commission of the crime because nighttime is absorbed in treachery; and

PLACE WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES (par. 5) The public authorities who are in the performance of their duties must be in their office. Public authority may be the offended party.

CONTEMPT OR INSULT TO PUBLIC AUTHORITIES (par. 2)

The public authorities are performing their duties outside of their office. The public authority should NOT be the offended party.

Note:  The place of the commission of the felony is aggravating regardless of whether State or official or religious functions are being held. Offender must have intention to commit a crime when he entered the place of the commission of the felony.  There must be performance of public functions when the crime is committed in a place where public authorities are engaged in the performance of duties. (Id.) Nighttime, Uninhabited Place and Band – Art. 14 (6) Basis: The aggravating circumstance is based on the time and place of the commission of the crime and means and ways employed. (Reyes, The Revised Penal Code: Book One, 2006, p.363)

a. When it facilitated the commission of the crime; b. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or c. When the offender took advantage thereof for the purpose of impunity. (People vs. Matbagon, G.R. No. 42165. November 12, 1934) When NOT aggravating:

b. When the meeting between the offender and the offended party at nighttime is casual and the idea of committing the crime came into the mind of the offender only at that time. (Estrada, Criminal Law Book One, 2011) c.

When no evidence showing that nocturnity was especially sought by the accused nor taken advantage of by him to facilitate the commission of the immunity from captive. (People vs. Mactal, G.R. No. 141187, April 28, 2003)

Nighttime / Nocturnity (Obscuridad) – is the period of darkness beginning at the end of dusk and ending at dawn. Nights are from sunset to sunrise. (Art. 13, NCC) NOTE: Nocturnity or nighttime, by and of itself, is not an aggravating circumstance. It becomes so only when it is especially sought by the offender, or taken advantage by him to facilitate the commission of the crime or to ensure his immunity from capture. If there was no proof that nighttime was deliberately sought by the accused in committing the crime, said circumstance should be disallowed. (People vs. Pasiliao, G.R. No. 98152–53, October 26, 1992) Tests for the Appreciation of Nocturnity The objective test – that nocturnity facilitated the commission of the crime; and

The subjective test – that it was purposely sought by the offender in order to afford impunity. The two tests should be applied in the alternative. (People vs. Garcia, G.R. No. L-30449, October 31, 1979) Doctrines:  It is error to accept nocturnity as aggravating for during the incident the moon was shining brightly. The light was bright enough to see what was going on and to recognize the assailants. It, therefore does not qualify as an aggravating circumstance under either the subjective or objective tests. (People vs. Bigcas, G.R. No. 94534, July 2, 1992)  Nighttime is aggravating if the offender selected the hour of the night when neighbors and occupants of the house were sleeping to gain entry into the victim’s residence when the victim was killed despite the fact that it was brightly lit. (People vs. Demate, G.R. No. 132310, January 20, 2004)  As a rule, the crime must begin and end during the nighttime. Crime began at day and ended at night, as well as crime began at night and ended at day are not aggravated by the circumstance of nighttime.  Nighttime is generally absorbed in Treachery. If the accused purposely sought nighttime or took advantage thereof to make the attack unexpected so as to render the victim defenseless, treachery absorbs nighttime. But if the accused purposely sought nighttime to afford impunity, and tied the victim and then stabbed him twice with an icepick, treachery will not absorb nighttime. Treachery is based on the defenseless position of the victim when he was killed, while nighttime was purposely sought by the accused to afford impunity. (People vs. Ong, G.R. No. L-37908, October 23, 1981, as cited in Campanilla, 2019, Criminal Law Reviewer: Volume I, p. 250). Uninhabited Place (Despoblado) – it is one where there are no houses at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from

each other. It is NOT determined by the distance of the nearest house to the scene of the crime but by the evidence that the place was advantageous for the commission of the crime because it afforded the victim little or no opportunity to receive help. Whether or not the crime committed is attended by this aggravating circumstances should be determined not by the distance of the nearest house to the scene of the crime, but whether or not in the place of the commission of the offense there was a reasonable possibility of the person receiving some help. (Reyes, The Revised Penal Code: Book One, 2006, pp. 383-384) NOTE: a. It is present where help to the victim is difficult. Solitude was purposely sought for to facilitate the commission of the crime. (People vs. Egot, G.R. No. L-35775, June 29, 1984) b. A distance of 200 yards to the nearest house sufficient to make the scene of the crime uninhabited. Solitude was purposely sought for to facilitate the commission of the crime. (People vs. Egot) c. If the accused was killed in a banca at a sea not so far away from another banca, the place is uninhabited as it was difficult for the victim to receive some help. (People vs. Arpa, No. L-26789, April 25, 1969)

Illustration: Killing was done during nighttime, in

a sugarcane plantation about a hundred meters from the nearest house, and the sugarcane field was tall enough to obstruct the view of the neighbors and passerby. (People vs. Damaso, 750 O.G. 4979, No. 25, June 18, 1979) Band (En Cuadrilla) Whenever more than three armed malefactors or at least four armed malefactors shall have acted together in the commission of an offense. All of the armed men must have participated in the commission of the crime as principals by direct participation. If one of them was a principal by inducement there would be NO band or cuadrilla, but the aggravating circumstance of having acted with the aid of armed men may be considered against the inducer if the other two acted as his accomplice.

This aggravating circumstance absorbs the circumstance of abuse of superior strength and use of firearms (except when the firearm has no license or there is a lack of license to carry the firearm) if they are present in the commission of the crime. (People vs. Escabarte, G.R. No. 42964, March 14, 1988) On the Occasion of Calamity or Misfortune – Art. 14 (7) It refers to events similar in nature as conflagration, shipwreck, earthquake, or epidemic. It cannot refer to “acts of men” because they are different from the events enumerated. Under the principle of ejusdem generis, where general terms such as this one, follow the enumeration of particular things, the general term will include only those classes of things or persons of the same class or nature as those mentioned in the preceding enumeration. (Reyes, The Revised Penal Code: Book One, 2017, p. 385) Reason for aggravation: In the midst of a great calamity, the offender, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them. (US vs. Rodriguez, GR. No. L-6344, March 21, 1911) It is necessary that the offender took advantage of the calamity or misfortune. Distinguish paragraph 7 from paragraph 12 of Article 14: Paragraph 12 refers to the means in the commission of the crime; paragraph 7 refers to the occasion or during any of the calamities mentioned in the crime committed.

2. That the accused availed himself of their aid or relied upon them when the crime was committed. (Id.) NOTES: ●

Band consists of at least four (4) armed persons organized with the intention of carrying out an unlawful design. Band is inherent in brigandage but not in robbery.

 Aid of armed men cannot be appreciated when there is conspiracy, accused acting under the same plan and for the same purpose. Hence, they are all principals in the commission of the crime. (People vs. Amion, G.R. No. 140511, March 1, 2001) With the aid of armed men (Par. 8) As to their number Requires more than At least two. three armed malefactors (i.e. at least four). As to their action Requires that more This circumstance is than three armed present even if one of malefactors shall have the offenders merely acted together in the relied on their aid, for commission of an actual aid is NOT offense. necessary. As to their liability Band members are Armed men are liable liable as principals. as accomplices. By a band (Par. 6)

When Aggravating: When the accused knowingly availed of their aid or assistance in the commission of a crime. Band may absorb aid for armed men. (Reyes, The Revised Penal Code: Book One, 2006, p.377) Recidivism – Art. 14 (9)

Aid of armed men or persons who insure or afford impunity – Art. 14 (8)

Reiteracion or Habituality – Art. 14(10)

Basis: Based on the means and ways of committing the crime. (Reyes, The Revised Penal Code: Book One, 2006, p. 375)

Note: Discussion for Recidivism and Reiteracion can be found under Multiple Offenders, pp. 6971

Requisites: 1. That armed men or persons took part in the commission of the crime, directly or indirectly; and

In consideration of Price, Reward or Promise – Art. 14 (11) Basis: Greater perversity of the offender, as shown by the motivating power itself. (Reyes, The Revised Penal Code: Book One, 2006, p. 385)

To consider this circumstance, the price, reward or money must be the primary reason or primordial motive for the commission of the crime. Under this circumstance, it affects the principal by direct participation who committed the crime for consideration. The other co–conspirators if there be any, who did not benefit from the price, promise, or reward, will not have his penalty aggravated because this circumstance is personal to the receiver. The reward is the primary consideration in the commission of the crime for this circumstance to be aggravating. There are two (2) offenders in the circumstance – the offeror and the offeree. The former is a principal by inducement and the latter is a principal by direct participation. NOTE: It is sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense. By means of Inundation, Fire, Poison, Explosion. Stranding of a Vessel or Intentional Damage thereto. Derailment of a Locomotive, or by the use of any other artifice involving Great Waste and Ruin – Art. 14 (12) Inundation – refers to the use of water or causing water to flood in the commission of the offense. These circumstances are included by law in defining a crime; hence, Art. 62(1) shall apply. Thus, “aggravating circumstances which in themselves constitute a crime specially punished by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.” If one of these circumstances was a means to kill, the crime is murder, not homicide; hence, the penalty will be for murder. The circumstance will no longer be considered a generic aggravating circumstance. (Reyes, The Revised Penal Code: Book One, 2012)

Rules as to the Use of Fire: ● Intent was only to burn but someone died, the crime committed is simple arson. ● If fire was used as a means to kill, the crime committed is murder. ● If the fire was used to conceal the killing, there is separate crimes of arson and murder/homicide. (Reyes, The Revised Penal Code: Book One, 2017) Evident Premeditation – Art. 14 (13) Requisites: (SuMTime) 1. The Time when the offender is determined to commit the crime; 2. An act Manifestly indicating that the culprit has clung to his determination; and 3. A Sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will. (People vs. Lagarto, G.R. No. 65833, May 6, 1991) General Rule: Where conspiracy is directly established, WITH proof of the attendant deliberation and means of executing the crime, the existence of evident premeditation can be taken for granted. (People vs. Sapigao, et al., G.R. No. 144975, June 18, 2003) Exception: When conspiracy is only implied. Evident premeditation may NOT be appreciated, in the absence of proof as to how and when the plan to kill the victim was hatched or what time had elapsed before it was carried out. (People vs. Padlan, G.R. No. 111263, May 21, 1998)  The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. (People vs. Abadies, G.R. No. 135975, August 14, 2002)  Premeditation is absorbed by reward or promise but only insofar as the inducer is concerned since he obviously reflected thereon in planning the crime but not the person induced since one can be a principal

by direct participation without the benefit of due reflection. (US vs. Manalinde, G.R. No. 5292, August 28, 1909)  Evident premeditation is inherent in crimes against property as in robbery, theft and estafa. But it may be appreciated in special complex crime as an aggravating circumstance such as robbery with homicide. (People vs. Valeriano, G.R. No. L-2159. September 19, 1951; People vs. Nabual, G.R. No. L-27758, July 14, 1969) Sufficient lapse of time depends on the circumstances: ● One hour from the time of determination up to the time of execution has been held to be a sufficient lapse of time. (People vs. Serna, G.R. No. L-7845, February 27, 1957) ● A mere lapse of time cannot be used solely as a basis of finding whether the circumstance has evident premeditation, the prosecution must adduce clear and convincing evidence as to when and how the felony was planned and prepared before it was effected and it must be proved with certainty as the crime itself. (People vs. Baldogo, G.R. Nos. 128106-07, January 24, 2003) Craft, Fraud or Disguise – Art. 14 (14) Craft (astucia) – any act, which would NOT arouse the suspicion of the victim in order to facilitate the commission of the crime. It involves intellectual trickery and cunning of accused. It is not attendant where the accused was practically in a stupor when the crime was committed. (People vs. Juliano, G.R. No. L–33053, January 28, 1980) llustration: The offender assumed position of authority to gain entry in a house; or feigning friendship to lure a victim to an uninhabited place.  Aggravating in a case where the offenders pretended to be bona fide passengers of a jeepney in order not to arouse suspicion, but once inside the jeepney, robbed the passengers and the driver. (People vs. Lee, G.R. No. 66848, December 20, 1991)

 Craft may be absorbed in treachery if it is deliberately adopted as the means, method or form for the treacherous strategy. It may co-exist independently from treachery only when both circumstances are adopted for different purpose in the commission of the crime. (People vs. Labeo, G.R. No. 133438, January 6, 2002) Fraud (fraude) – a direct inducement by insidious words or machinations used to induce the victim to act in a manner, which would enable the offender to carry out his design. (Reyes, The Revised Penal Code: Book One, 2006, p.406) NOTE: Fraud is inherent in estafa since it is one of its elements. Disguise (disfraz) – is the resort to any device to conceal identity. If in spite of the disguise, the offender was recognized, such cannot be aggravating. The test of disguise is whether the device or contrivance resorted to by the offender was intended to or did make identification more difficult, such as the use of a mask or false hair or beard. Disguise contemplates a superficial but somewhat effective dissembling to avoid identification. (People vs. Reyes, G.R. No. 118649, March 9, 1998) NOTE: These circumstances are not aggravating if they did not facilitate the commission of the crime or not taken advantage of by the offender in the course of the assault. If they were used to insure the commission of the crime against persons without risk to offender, they are absorbed by treachery. (Reyes, The Revised Penal Code: Book One, 2017) Abuse of Superior Strength or Means taken to Weaken the Defense – Art. 14 (15) ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH To deliberately use excessive force that is out of proportion to the means for self–defense available to the person attacked.

(People vs. Lobrigas, et al, G.R. No. 147649, December 17, 2002) There

must

gross

MEANS BE EMPLOYED TO WEAKEN THE DEFENSE The offender employs means that materially weakens the resisting power of the offended party.

When the victim was alternately attacked, there is no abuse of strength. (People vs. Datun, G.R. No. 118080, May 7, 1997)

inequality of forces between the aggressor and the victim.

When superior appreciated:

strength

can

Examples of “means employed to weaken the defense”:

● The aggressors, who were all armed, first hit

a. Where one, struggling with another, suddenly throws a cloak over the head of his opponent and while in this situation he wounds or kill him (US vs. Devela, G.R. No. 1542, April 9, 1904); and b. One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him. (People vs. Siaotong, G.R. No. L–9242, March 29, 1957) c. When the offender made the deceased intoxicated and thereafter kills him.

the legs of their unarmed victim causing the latter to fall kneeling; then, stabbed him above the knee; and, having deprived him of his means to stand or run, took turns in inflicting mortal wounds on him. (People vs. Apelado, G.R. No. 114937, October 11, 1999) ● An attack by a man with a deadly weapon upon an unarmed and defenseless woman is abuse of superior strength which his sex and weapon afforded him. (People vs. Olivo, G.R. No. 130335, January 18, 2001) ● In abuse of superior strength, what should be considered is not that there were three, four or more assailants as against one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense. (People vs. Cabangcala, G.R. No. 135065, August 8, 2001) ● Where there are several offenders participating in the crime, they must all be principals by direct participation and their attack against the victim must be concerted and intended to be so. (Lumiguis vs. People, G.R. No. L–20338, April 27, 1967) Superior strength cannot be appreciated:

Note: These circumstances are applicable only to crimes against persons and property. By a Band vs. Abuse of Superior Strength BY A BAND The element of band is appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims.

Hence, what is taken into account here is NOT the number of aggressors or the fact that they are armed, but their relative physical strength vis-à-vis the offended party.

Note: In parricide, the superior strength is inherent in the crime. It is generally accepted that the husband is physically stronger than his wife. It is not appreciated by mere superiority in the number of the malefactors, but by the deliberate employment of excessive force, which is out of proportion to the means of defense available to the person attacked. One who attacks another with passion and obfuscation does NOT take advantage of his superior strength; When a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man. (Estrada, Criminal Law Book One, 2011)

ABUSE OF SUPERIOR STRENGTH The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims.

(Reyes, The Revised Penal Code: Book One, 2006, p.417-418)

Treachery (Alevosia) – Art. 14 (16) Basis: Has reference to the means and ways employed in the commission of the crime. (Reyes, The Revised Penal Code: Book One, 2006, p.420) Requisites: (ConNot) 1. That at time of the attack, the victim was Not in a position to defend himself; and

2. That the offender Consciously adopted the particular means, method or form of attack employed by him. (Reyes, The Revised Penal Code: Book One, 2012, p. 450) NOTES: 1. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, WITHOUT risk to himself arising from the defense which the offended party might make. (People vs. Lacao, Sr., G.R. No. 95320, September 4, 1991) 2. The essence of treachery is that the attack comes without a warning leaving the victim with no chance to resist or escape. (People vs. Yanson, G.R. No. 179195, October 3, 2011) 3. Even when the victim was forewarned of the danger to his person, Treachery may still be appreciated since what is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. (People vs. Napalit, G.R. No. 181247, March 19, 2010) Rules Regarding Treachery: a. Applicable only to crimes against persons. b. Means, methods of forms need NOT insure accomplishment of crime. c. The mode of attack must be consciously adopted. When Must Treachery Be Present: When the aggression is continuous, treachery must be present in the beginning of the assault. (People vs. Manalad, G.R. No. 128593, August 14, 2002) When the assault was NOT continuous, in that there was interruption, it is sufficient that treachery was present at the moment the fatal blow was given. (US vs. Baluyot, G.R. No. L-14476, November 6, 1919)  Even though in the inception of the aggression, which resulted to the death of the deceased, treachery was not present, if there was a break in the continuity of the aggression and at the time of the fatal wound was inflicted on the deceased he was

defenseless, the circumstance of treachery must be taken into account. (US vs. Baluyot, G.R. No. L-14476, November 6, 1919) Test of treachery a. It is not only the relative position of the parties but more specifically, whether the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack. b. The attack comes without warning, and is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or to escape. (People vs. Mazo, G.R. No. 136869. October 17, 2001) From whom should “retaliation” in treachery come The “retaliation” relevant in the appreciation of treachery must come from the victim, not from anyone else. That the site of the crime was heavily populated where others could thus intervene is not significant at all. (People vs. Costelo, G.R. No. 134311, October 13, 1999) NOTE: Although the victim and his assailant were face to face at the time the stabbing was made, where it appears that the attack was NOT preceded by a dispute and the offended party was unable to prepare for his defense, treachery should be taken into account. (People vs. Dela Cruz, G.R. No. 139970, June 6, 2002)

Aleviosa is considered even if: ● The victim was not predetermined but there was a generic intent to treacherously kill any first two persons belonging to a class. ● There was aberratio ictus and the bullet hit a person different from the intended. ● There was error in personae, hence the victim was not the one intended by the accused. (Estrada, Criminal Law Book One, 2000) Treachery absorbs the circumstances: (CANABE)

following

Craft; Abuse of Superior Strength; Nighttime; Aid or Armed Men; Cuadrilla (Band); and ● Employing means to weaken the defense. ● ● ● ● ●

General Rule: a frontal attack is not a treachery. Exception: when the attack although frontal is sudden and in a manner that tends directly and specially to insure its execution free from danger and without risk to oneself on account of what the victim might make to defend himself, there is treachery. Age of the Victim If the victim is a child of tender years, it can be appreciated as treachery. By reason of the victim’s tender years cannot be expected to put up a defense is considered attended by treachery even the manner of attack is not precisely known. There is a blatant inequality of strength between the offender and the victim, but abuse of strength cannot be appreciated as is it necessarily absorbed in treachery. (People vs. Fallorin, G.R. No. 13734, March 4, 2004)

forewarned by an impending attack by either of them. (Id.) Difference between Treachery, Abuse of Strength and Means Employed to Weaken the Defense Treachery

Abuse of Strength

Means, methods or forms of attack are employed by the offender to make it impossible or hard for the offended party to put up any sort of resistance.

The offender does NOT employ means, methods or forms of attack; he only takes advantage of his superior strength.

Means Employed to Weaken the Defense The offender employs means, which only materially weakens the resisting power of the offended party.

When is treachery not appreciated in the following cases:

Ignominy – Art. 14, (17)

1. The attack is an impulse of the accused or when the killing is due to passion or when the accused made no preparation to kill the deceased so as to insure the commission of the crime. (People vs. Pagador, G.R. No. 14000610, April 20, 2001) 2. The accused shot the victim as a result of a rash and impetuous impulse rather than from a deliberate act of the will. (People vs. Acuram, G.R. No. 117954, April 27, 2000) 3. Where the meeting between the accused and the victim was casual and the act was done impulsively, there is no treachery even if the attack was sudden and unexpected while the victim was running away with his back towards the accused. 4. Treachery cannot be presumed from the mere suddenness of the attack or from the fact that the victim was stabbed with his back towards the appellant e.g., if the purpose was to kill so long as the decision was made all of a sudden and the victim’s hapless position was accidental. The suddenness of attack must be preconceived by the accused, unexpected by the victim and without provocation of the latter. (Estrada, Criminal Law Book One, 2011) 5. If the attack was preceded by an altercation between the protagonists. Both are

Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. (People vs. Acaya, G.R. No. L–72998, July 29, 1988) Basis has reference to the means employed. (Reyes, The Revised Penal Code: Book One, 2006, p.455) It is applicable to crimes against chastity, rape, less serious physical injuries, light or grave coercion and murder. Instances when ignominy can be appreciated: a. Winding cogon grass around the penis before committing rape. b. If the circumstances adds disgrace and obliquy to the material injury caused by the crime (“adding insult to the injury”). c. The means employed or the circumstances brought about must tend to make the effects of the crime more humiliating to victim or to put the offended party to shame, or add to his moral suffering. (People vs. Carmina, G.R. No. 81404, January 28, 1991) d. Rapes wanton robbery for personal gain, and other forms of cruelties are condemned and their perpetration will be regarded as aggravating circumstances of ignominy.

(People vs. Racaza, G.R. No. L-365, January 21, 1949)

When ignominy cannot be appreciated: ●

●

When the victim was already dead and his body was dismembered for such act may not be considered to have added to the victim’s humiliation or moral suffering. (People vs. Carmina, supra) Where the sexual assault was not done to put the victim to shame before the killing. (People vs. Cachola, G.R. No. 148712-5, January 21, 2014) Unlawful Entry – Art. 14 (18)

Unlawful Entry - When an entrance is effected by a way NOT intended for the purpose. Unlawful entry must be a means to effect entrance, and not for escape. (People vs. Sunga, G.R. No. 126029, March 27, 2003) Unlawful entry is inherent in: ● ● ● ●

Robbery with the use of force upon things; Trespass to dwelling; Violation of domicile; and Evasion of service of sentence, if such evasion or escape shall have taken place by means of unlawful entry. (Estrada, Criminal Law Book One, 2011)

NOTE: When the accused gained access to the dwelling by climbing through the window and once inside, murdered certain person in the dwelling, there were two aggravating circumstances which attended the commission of the crimes – dwelling and unlawful entry. Thus, these two are taken separately. (People vs. Bondoy, G.R. No. 79089, May 18, 1993) Breaking of wall, roof, floor, door, or window – Art. 14 (19) This circumstance is aggravating only in those cases where the accused resorted to any of said means to enter the house. The breaking of any of these parts of a house or building must be for the commission of a crime. It is not necessary that the offender should have entered the building. (Reyes, The Revised Penal Code: Book One, 2006, p.461)

 Thus, if the accused broke a window to enable himself to reach a cell phone on the table near the window, which he took while his body was outside the house, the crime of theft was attended by this aggravating circumstance. It is not necessary that the offender should have entered the building. (Estrada, Criminal Law Book One, 2011) When an entrance is through a way not intended for that purpose; the opening must be used to enter, not to escape. It qualifies the crime of theft to robbery. It is inherent in the crimes of trespass to dwelling and in robbery with force upon things. But taken as an aggravating circumstance in robbery with violence or intimidation against person. Unlawful Entry vs. Breaking of wall, et al. Unlawful Entry Presupposes that there is no such breaking as by entry through the window.

Breaking of wall, roof, floor, door, or window It involves the breaking (rompimiento) of the enumerated parts of the house.

(People vs. Lamosa, G.R. No. 74291-93, May 23, 1989)

With the aid of persons under 15 years of age and Use of Motor Vehicles and Other Similar Means – Art. 14 (20) 4. The use of minors who are exempt from criminal liability is aggravating. It shows the greater perversity of the accused for taking advantage of the innocence or mediocrity of minors for criminal purposes. (Estrada, Criminal Law Book One, 2000) 5. Use of motor vehicle is aggravating where the accused purposely and deliberately used the motor vehicle in: d. In going to the place of the crime e. In carrying the effects thereof; or f. In facilitating the escape. (People vs. Espejo, G.R. No. L–27708, December 19, 1970)  If the use of motor vehicle is merely incidental and not purposely sought to facilitate the commission of the offense or to render the escape of the offender easier and his apprehension difficult.

(People vs. Astudillo, G.R. No. 141518, April 29, 2003)

“Or other similar means” - The expression should be understood as referring to motorized vehicles or other efficient means of transportation similar to automobile or airplane.  The use of motor vehicle is not aggravating where the use thereof was merely incidental and was not purposely sought to facilitate the commission of the offense or to render the escape of the offender easier and his apprehension difficult. (People vs. Astudillo, G.R. No. 141518, April 29, 2003) Cruelty – Art. 14 (21) Requisites: (Un-In) a. That the injury caused be deliberately Increased by causing other wrong; and b. That the other wrong be Unnecessary for the execution of the purpose of the offender. (Reyes, The Revised Penal Code: Book One, 2006, p.466) Cruelty – there is cruelty when the offender enjoys and delights in making his victim suffer slowly and gradually, causing his unnecessary and prolonged physical pain in the consummation of the criminal act. (People vs. Sitchon, G.R. No. 134362, February 27, 2002) Cruelty can be appreciated:  Cruelty is not inherent in crimes against persons. It can be appreciated for as long as there is a positive proof that the wounds found in the body of the victim were inflicted while the accused was alive and injuring the sadistic acts committed by the accused against the former. (People vs. Clamania, G.R. No. L-2095, January 28, 1950)  After the victim was ravished, appellant hacked her, almost splitting her face, such bestiality is cruelty and perversity, it being unnecessary to its commission and manifestly an outrage on the victim’s person. (People vs. Nescio, G.R. No. 102008, December 28, 1994)  Number of wounds alone does not show cruelty, it being necessary to show that the accused deliberately and inhumanly increased the sufferings of the victims.

(People vs. Aguinaldo, G.R. No. 33843, February 11, 1931)

Cruelty cannot be appreciated:  If the victim was already dead when the acts of mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse. But since the victim is already dead, cruelty cannot be appreciated in this case. (People vs. Balisteros, G.R. No. 110289, October 7, 1994)  When there’s an absence of any showing that the accused, for their pleasure and satisfaction caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain.  Even the accused stabbed the victim 100 times because of hate. There is no treachery because there the wounds were not inflicted with deliberate intention of causing unnecessary pain and suffering of the victim. (Estrada, Criminal Law Book One, 2011) Other aggravating circumstances, which may be appreciated, are: 1. Dwelling, because the killings were committed in the home of the victims who had not given any provocation; 2. Nocturnity, considering that the offenders carried out the killing at around 3:00 AM, indicative of a deliberate choice of nighttime for the commission of the crime; 3. Treachery, under Art. 14(16), RPC, mentioned above, considering that victims were all asleep when killed; 4. The offense was committed by a person who belongs to an organized/syndicated crime group under the Heinous Crimes Law (Sec. 23 R.A. No. 7659), amending for this purpose Art. 62(1) of the RPC; 5. When the offender commits the crime under the influence of drugs;(Sec. 25, R.A. No. 9165) 6. Use of an unlicensed firearm in Homicide or Murder. The crime is called “Aggravated Homicide” or “Aggravated Murder”;(Estrada, Criminal Law Book One, 2000) and 7. If the victim was already dead when the acts of mutilation were being performed on him, this would be also to qualify the killing to murder due to scoffing or outrading of his corpse.

8. Parading of the head of the victim after the accused beheaded him is scoffing at the corpse of the dead. 9. Anal intercourse with a woman after killing her is, undoubtedly an outrage of her corpse. (People vs. Butler, G.R. No. L-50276, January 27, 1983) IMPORTANT: All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. (Sec. 6, R.A. No. 10175 or Cybercrime Prevention Act of 2012) e. ALTERNATIVE CIRCUMSTANCES (Art. 15) Alternative Circumstances – are those, which must be considered as aggravating or mitigating according to the nature and effects of the crime and other condition attending its commission. (Reyes, The Revised Penal Code: Book One, 2006, p.471) Basis: the nature and effects of the crime and other conditions attending its commission. (Id.) Four alternative circumstances: (RIDE) (a) (b) (c) (d)

Relationship; Intoxication; Degree of Instruction; and Education.

a. Relationship – shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.  The relationship of stepfather or stepmother and stepson or stepdaughter is included herein. (People vs. Bersabal, G.R. No. 24532, December 11, 1925) It also includes the relationship of adopted parent and adopted child, but not the

relationship between uncle and niece. (People vs. Lamberte, G.R. No. L–65153, July 11, 1986) Application: i.

Crimes against Property a) Mitigating in the following: (RUFA) 1. Robbery; 2. Usurpation; 3. Fraudulent insolvency; and 4. Arson. b) Exempting circumstance following: (MaTS) 1. Malicious mischief; 2. Theft; and 3. Swindling or estafa.

the

ii. Crimes against Persons NOTE: It is aggravating in cases where the offended party is a relative of a higher degree than the offender, or when the offender and the offended party are relative of the same level (e.g siblings). (People vs. Alisub, G.R. No. 46588, January 20, 1940) When Aggravating or Mitigating: a) Serious physical injuries: Aggravating even if the offended party is a descendant of the offender. If the offense of serious physical injuries is committed by the offender against his child, whether legitimate or illegitimate, or any of his legitimate other descendants, relationship is aggravating. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement. b) Less serious physical injuries: Mitigating if the offended party is a relative of a lower degree; and Aggravating if the offended party is a relative of a higher degree of the offender. c) Homicide or murder: Relationship aggravating regardless of degree.

d) Rape: Aggravating where a stepfather raped his stepdaughter or in a case where a father raped his own daughter. (Reyes, The

Revised Penal Code: Book One, 2006, p.476)

iii. Crimes against Chastity

e. Rape (Molesa vs. Director of Prisons, G.R. No. 39998, January 24, 1934) When aggravating:

Acts of lasciviousness – relationship is ALWAYS aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party.

High degree of instruction and education where an offender avails himself of his learning in committing the crime. (Reyes, supra)

When the qualification given to the crime is derived from the relationship between the offender and the offended party, it is neither mitigating nor aggravating, because it is inseparable from and inherent in the offenses, e.g. parricide, adultery and concubinage. (Id.)

Example: A doctor, who is using his knowledge, prepared certain kind of poison to kill his victim in such a way as to avoid detection may be considered as an aggravating circumstance because the crime was committed by taking advantage of his high degree of instruction and education. (Id.)

b. Intoxication Habitual Drunkard – is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of occurrence. (People vs. Camano, G.R. No. L–36662– 63, July 30, 1982) Aggravating – (1) if intoxication is habitual or intentional, or (2) if it is intentional or subsequent to the plan to commit the crime. A person pleading intoxication as a mitigating circumstance must show that: (1) he has taken a quantity of alcoholic beverage prior to the commission of the crime sufficient to produce the effect of obfuscating reason; and (2) he is not a habitual drinker and did not take the alcoholic drink with the intention to reinforce his resolve to commit the crime. (People vs. Pinca, G.R. No. 129256, November 17, 1999) c. Degree of Instruction and Education When mitigating: General Rule: Lack of sufficient education is mitigating. (Reyes, The Revised Penal Code: Book One, 2006, p.482) Exceptions: a. Crimes against property, e.g. arson, estafa, theft, robbery (US vs. Pascual, G.R. No. 3777, January 6, 1908); b. Crimes against chastity; c. Treason; d. Murder; and

f. ABSOLUTORY CAUSES Absolutory causes – are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed. (Reyes, The Revised Penal Code: Book One, 2006, p.242) Examples of absolutory causes: 1. Art. 6(3) – spontaneous desistance in the attempted stage unless the overt act committed already constitutes a crime other than that intended; 2. Art. 7 – attempted/frustrated light felonies except those against persons or property; 3. Art. 16 – accessories in light felonies; 4. Art. 20 – certain relatives who are accessories subject to the requisites provided therein: upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees; 5. Article 247 – death and physical injuries inflicted under exceptional circumstances: any legally married person; 6. Article 332 – the crime of theft, estafa, and malicious mischief: committed or caused mutually by the following persons: (a) spouses, ascendants and descendants, or relatives by affinity in the same line; (b) the widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and (c) brothers and

8. 9. 10.

11. 12.

13. 14.

15.

sisters and brothers–in–law and sisters–in– law, if living together; Article 124, last paragraph – the commission of a crime, or violent insanity of any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person; Battered woman syndrome – Sec. 26, R.A. No. 9262; Status offenses in Sec. 57 and 58, R.A. 9344; Article 280(3) – crime of trespass to dwelling is not committed when one enters another’s dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inns and other public houses, while the same are open; Somnambulism; Art. 344(4) – In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. Except for the crime of rape, the provisions of this paragraph shall also be applicable to the co–principals, accomplices and accessories after the fact of the above– mentioned crimes; Mistake of fact; Repeal of a penal law, either absolute or modification of the penalty when favorable to the offender; and Instigation by reason of public policy. (Boado, Notes and Cases on the Revised Penal Code, 2018) Entrapment vs. Instigation

ENTRAPMENT The mens rea originated from the accused who was merely trapped by the peace officer. Not an absolutory as to the offender since he authored the evil idea. Consistent with public policy. Trap for the unwary criminal.

INSTIGATION Evil idea originated from the peace officer who induced the accused to commit the act. Absolutory by reason of public policy. Contrary to public policy. Trap for unwary innocent.

The peace officer has no criminal liability for his acts are in accordance with law. The crime has already been committed.

The peace officer is a principal by inducement. The crime would not and could not have been committed were it not for the instigation.

(Reyes, The Revised Penal Code: Book One, 2006, p.245-246)

3. PERSONS LIABLE AND DEGREE OF PARTICIPATION a.

PRINCIPALS, ACCESSORIES

ACCOMPLICES,

AND

ARTICLE 16 WHO ARE CRIMINALLY LIABLE The following are criminally liable for grave and less grave felonies: (APA) 1. Principal; 2. Accomplices; and 3. Accessories. The following are criminally liable for light felonies: (PA) 1. Principals; and 2. Accomplices. NOTE: Light felonies are punishable only when they have been consummated; but when light felonies are committed against persons or property, they are punishable even if they are only in the attempted or frustrated stage of execution. (Art. 7, RPC) Under Article 9, in relation to Article 25: a. Grave felonies are penalized with capital punishment or afflictive penalties in any of their periods; b. Less grave felonies are meted with penalties which in their maximum period are correctional; and c. Light felonies carry arresto menor or a fine not exceeding 40,000 pesos or both.

Parties in crimes: a. Active subject – criminal/offender; only natural persons because of the highly personal nature of criminal responsibility. (Reyes, The Revised Penal Code: Book One, 2006, p.490) b. Passive subject – injured party; holder of the injured right; corporation and partnership can be a passive subject of a crime. (Reyes, The Revised Penal Code: Book One, 2006, p.493) ARTICLE 17 PRINCIPALS Kinds of Principals: 1. Principals by direct participation (PDP); 2. Principals by inducement (PBI); and 3. Principals by indispensable cooperation (PIC). Principals by direct participation (PDP) – Art. 17 (1) Those who take a direct part in the execution of the act. Requisites: a. That they participated in the criminal resolution; and b. That they carried out their plan and personally took part in its execution by acts which directly tended to the same end. They are those who materially execute the crime. They must appear at the scene of the crime and perform acts necessary in the commission of the offense to be liable. In conspiracy by prior agreement, if the principal by direct participation does not appear at the scene of the crime, he is not liable because: i. Non–appearance is desistance which is favored and encouraged; ii. Conspiracy is not a crime unless the law specially provides a penalty therefor. By merely conspiring, the co–conspirator has not yet committed the crime; and iii. There is no basis for criminal liability because there is no criminal participation. (Id.)

Principals by inducement (PBI) – Art. 17(2) Those who directly force or induce others to commit the crime. Requisites: 1. That the inducement was made directly with the intention of procuring the commission of the crime; and 2. That such inducement was the determining cause of the commission of the crime by the material executor.  The principal by inducement must intend that his inducement be obeyed. Mere careless comment of one who does not possess dominance or moral ascendancy over the offender will not make the former a principal by inducement. The inducer’s utterances must be of such nature and made in such a manner as to become the determining the cause of the crime. Where the words uttered did not make any great dominance or influence on the offenders or is no longer necessary as the offenders were already determined to commit the offending acts, the utterance will not make the utterer an inducer. (People vs. Parungao, G.R. No. 125812, November 28, 1996) How an inducer commit a crime:

“induce”

another

(1) By directly inducing another to commit a crime One is induced to commit a crime either: a.1 By using words of command or b.2 By giving price, or offering reward or promise, or by any other similar act which constitutes the real and moving cause of the crime and which was done for the purpose of forcing or inducing such criminal act and which was sufficient for that purpose. (People vs. Dumancas, G.R. No. 133527–28, December 13, 1999)

i. Using words or command

Art. 17(2), the following requisites must all be present: (Pro-AsIn-PA-DEP)

Requisites: (IMaW-dip) a. the inducer must have the intention of procuring the commission of the crime; b. the inducer must have moral ascendancy or influence over the person; c. the words of command must be uttered before the commission of the crime; d. the words uttered must be direct, influential, and powerful to amount to coercion. ii. Giving price or offering of reward or promise The person giving the price or offering the reward or promise is the PBI while the one committing the crime is PDP. (Estrada, supra) (2) By directly forcing another to commit a crime a. By using irresistible force is such physical force as would produce an effect upon the individual that in spite of all resistance it reduces him to a mere incident, and compelled by means of force or violence; and b. by uncontrollable fear is a compulsion by means of intimidation or threat that promises an evil if such gravity and eminence that the ordinary man would have succumbed to it. NOTE: In these cases, there is no conspiracy, not even a unity of criminal purpose and intention. Only the one using force or causing fear is criminally liable. The material executor is not criminally liable because of Art. 12, paragraph 5 and 6.  The inciting words must have great dominance and influence over the person who acts; they ought to be direct and efficacious or powerful as physical or moral coercion or violence itself. (People vs. Canial, G.R. Nos. L–31042–43, August 18, 1972) Note: In order that a person using words of command may be held liable as principal under

1. That the one uttering the words of command must have the intention of Procuring the commission of the crime; 2. That the one who made the command must have an Ascendancy or Influence over the person who acted; 3. That the words used must be so Direct, so Efficacious, so Powerful as to amount to physical or moral coercion; 4. That words of command must be uttered Prior to the commission of the crime; and 5. That the one being induced Actually commits the crime. (Reyes, The Revised Penal Code: Book One, 2006, p.530-533) Principal by Inducement vs. Offender who made a Proposal to Commit a Felony Principal by Inducement

Offender who made proposal to commit a felony In both There is an inducement to commit a crime. When liable Becomes liable only The mere proposal to when the crime is commit a felony is committed by the punishable in treason principal by direct (Art. 115, RPC), or coup participation. d’état, insurrection, rebellion (Art. 136, RPC). However, the person to whom the proposal is made should NOT commit the crime; otherwise, the proponent becomes a principal by inducement. What kind of crime involved Involves any crime.

The proposal must involve treason, rebellion, insurrection or coup d’état only.

(Reyes, The Revised Penal Code: Book One, 2006, p.535)

NOTE: But if the one charged as principal by direct participation is acquitted because he acted without criminal intent or malice, his acquittal is NOT a ground for the acquittal of the principal by inducement. (People vs. Po Gok To, G.R. No. L–7236, April 30, 1955)

Principals by indispensable cooperation (PIC) – Art. 17 (3) Requisites: 1. Participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and 2. Cooperation in the commission of the offense by performing another act, without which it would not have been accomplished. (Reyes, supra)

Illustrations: a. Where it appears that C seized the hands of a 12-year old girl, dragged her by force and violence to a place behind a house where there were some trees whence he called to his confederate, J, the person chiefly interested in the perpetration of the crime, with whom C must have had an agreement beforehand, delivered her to him upon his arrival at the place, and then went away from the scene of the crime so that J might freely consummate the pre-arranged rape, as the latter did with violence and intimidation, it was held that C cooperated in the perpetration of the crime by acts without which its commission would not have been accomplished. (US vs. Javier, G.R. No. 10379, August 5, 1915) b. Appellants grabbed the waist of the deceased and placed his hands around it, thereby pinning his (the deceased’s) arms. It was at this juncture when his co-accused stabbed the deceased at his left breast above the nipple with his dagger. Under the circumstances, it is clear that appellant is a principal to the commission of the crime of murder, as he cooperated in the execution thereof by another act, without which, it would not have been committed. (People vs. Labis, G.R. No. L-22087, November 15, 1967) c. Cooperation by acts of negligence. One who, by acts of negligence, cooperates in the commission of estafa through falsification or malversation through falsification without which negligent acts the commission of the crime could not have been accomplished, is a co-principal. But the one who cooperated in the commission of the crime was held guilty

of the same crime through reckless imprudence. (Samson vs. CA, G.R. Nos. L-10364 and L-10376, March 31, 1958) ACCOMPLICES Accomplices – they are the persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime. (Art. 18, RPC) Requisites: (CCR) 1. That there be Community of design, that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose. NOTE: Before there could be an accomplice, there must be a principal by direct participation. But the principal originates the criminal design. The accomplice merely concurs with the principal in his criminal purpose. (People vs. Cruz, G.R. No. 74048, November 14, 1990) 2. That he Cooperates in the execution by previous or simultaneous acts, with the intention of supplying material or moral aid in the commission of the crime in an efficacious way; and 3. That there must be a Relation between the acts done by the principal and those attributed to the person charged as accomplice. (People vs. Tamayo, G.R. No. 18289, November 17, 1922) Examples of cooperation by an Accomplice 1. By previous acts — Lending of a knife or a gun to the murderer, knowing the latter’s criminal purpose. 2. By simultaneous acts — The defendant who held one of the hands of the victim and tried to take away the latter’s revolver, while his co-defendant was attacking him, is an accomplice for he cooperates in the execution of the crime by simultaneous act without any previous agreement or understanding. (Reyes, supra)

The accomplice merely supplies the principal with material or moral aid without conspiracy.

5. The cooperation of the accomplice is only

Act of going with actual perpetrators of crime without conspiring with them. —There is no evidence that appellant had conspired with the malefactors, or that he actually participated in the commission of the crime. But in going with them, knowing their criminal intention, and in staying outside of the house with them while the others went inside the store to rob and kill, appellant effectively supplied the criminals with material and moral aid, making him guilty as an accomplice. (People vs. Balili, et al., G.R. No. L14044, August 5, 1966.)

 One can be an accomplice even if he did not know of the actual specific crime intended to be committed by the principal, provided he was aware that the objective of the acts he was tasked to do was illicit. Also, it is sufficient if there was a common purpose to commit a particular crime and that the crime actually committed was a natural or probable consequence of the intended. (People vs. Largo, et al., G.R. No. L–4912, August 28, 1956)

Where act of stabbing is merely a “show-off” or expression of sympathy or feeling of camaraderie.—The act of one of the accused in inflicting wound upon the victim several times with a small knife only after the latter had fallen to the ground seriously wounded, if not already dead, is not necessary and indispensable for the consummation of the criminal assault but merely a “show-off” or expression of sympathy or feeling of camaraderie with the other accused. For such act, the accused should be found guilty only as accomplice. (People vs. Vicente, No. L26241, May 21, 1969) NOTE: 1. An accomplice is not a part of the plan or conspiracy. 2. An accomplice is neither a principal nor an accessory but who cooperates with the principal by direct participation after coming to know about the conspiracy or after witnessing the commission of the crime by previous or simultaneous acts. 3. An accomplice concurs or approves the act of the principal by direct participation and performs other acts showing his conformity to the act of the principal by direct participation. 4. The act or acts of the accomplice must be lesser than the act or acts done by the principal by direct participation, that is, they must not be equal to or graver than the act or acts of the principal by direct participation.

necessary, not indispensable. (Reyes, supra)

 Absent knowledge of the criminal purpose of the principal, giving aid or encouragement, either morally or materially, in the commission of the crime, mere presence at the scene does not make one an accomplice. (People vs. Toling, G.R. No. L–28548, July 13, 1979) General Rule: The sole testimony of an accused, who was an accomplice or co-conspirator turned state witness, needs corroboration to convict his coaccused. Exception: If her testimony may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself because it is given unhesitatingly and in a straightforward manner and full of details which, by their nature, could not have been the result of deliberate afterthought. (People vs. Sunga, G.R. No. 126029, March 27, 2003) vi. Quasi-Collective Responsibility is one

where some offenders in the crime are principals and the others are accomplices. In case of doubt as to the responsibility of the offender as a principal or accomplice, the court should apply the milder form of liability. (People vs. Medrano, G.R. No. L-5583,. May 31, 1982) 

The pump boat owner who helped offenders by pretending that his pump boat needed towing by the passing boat of the victim was merely an accomplice. Here, the offenders transferred to the boat of the victims

and the latter robbed and killed them. The offenders could have asked for the help of other pump boat owners, hence the accused’s cooperation was not indispensable. (People vs. Sotto, G.R. No. 106083–84, March 29, 1996) Conspirator vs. Accomplice CONSPIRATOR Come to know the criminal intention because they themselves have decided on the course of action. Authors of the crime. Act is indispensable to the commission of the crime.

ACCOMPLICE Come to know it after the principals reached the decision, and only then do they agree to cooperate in its execution. They are merely instruments who perform acts not indispensable to the perpetration of the offense.

(Reyes, The Revised Penal Code: Book One, 2006, p.542)

Accomplice vs. Principal by Direct Participation ACCOMPLICE

PRINCIPAL BY DIRECT PARTICIPATION There is community of criminal design. Cooperation is dispen- Cooperation must be sable. indispensable. Cooperates in the Participation in the crimiexecution of the nal resolution, that, there offense by previous or is either anterior conssimultaneous acts, with piracy or unity of criminal the intention of purpose and intention supplying material or immediately before of the moral aid in the commission of the crime execution of the crime charged. in an efficacious way. There is no clear-cut distinction between the acts of the accomplice and those of the principal by direct participation.

(Reyes, The Revised Penal Code: Book One, 2006, p.561)

ACCESSORIES Accessories – those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners (Art. 19, RPC): (ProCoHa)

1. By profiting themselves or assisting the offender to profit by the effects of the crime; 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; or 3. By harboring, concealing, or assisting, in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Two classes of accessories are contemplated in paragraph 3 of Article 19: Public officers who harbor, conceal, or assist in the escape of the principal of any crime (not light felony) with abuse of his public functions. Requisites: (Not Pu CHAA) 1. The accessory is a Public officer; 2. He Harbors, Conceals, or Assists in the escape of the principal; 3. The public officer acts with Abuse of his public functions; and 4. The crime committed by the principal is any crime, provided it is Not a light felony. Private persons who harbor, conceal or assist in the escape of the principal – guilty of (MATH Pa): 1. 2. 3. 4. 5.

Murder; Attempt against the life of the President; Treason; Habitually guilty of some other crime; and Parricide.

Requisites: 1. That the accessory is a private person; 2. That he harbors, conceals or assists in the escape of the author of the crime; 3. That the crime committed by the principal is either: (a) treason, (b) parricide, (c) murder, (d) an attempt against the life of the President, or that the principal is known to be habitually guilty of some other crime. “or is known to be habitually guilty of some other crime” – Thus, if a person was

previously punished three times for less serious physical injuries and now commits estafa, the one who helps in his escape is liable as an accessory although the same is a private individual.

fence who receives stolen property as above– provided is not an accessory but a principal in the crime defined by the law. (Sec. 5, P.D. No. 1612) Liability of an accessory is subordinate to that of the principal. If the principal is acquitted, it is necessary to follow that the accessory must also be acquitted. However, if acquittal of the principal is because of an exempting circumstance (e.g. minority or insanity), the conviction of the accessory is proper.

But the accessory must have knowledge of the principal being habitually guilty of some other crime, because the law says so. (Reyes, The Revised Penal Code: Book One, 2006, p.570572) NOTE: If the private person assisted the escape of an accomplice only, he is not considered as an accessory. It is indispensable that the one he assisted in escaping is the author of the crime or the principal. Those who assist the principal to escape may be prosecuted under P.D. No. 1829 on obstruction of justice not as accessory but as a principal, provided that separate information shall be prepared from the crime of obstruction. When he is convicted, the penalty to be imposed is higher penalty under P.D. No. 1829 or any other law, including the RPC. (Sec. 1, last paragraph)

NOTE: An accused may or may not be an accessory to the crime but he may be charged separately for Obstruction of Justice under PD 1829. This law penalizes any person who knowingly or willfully obstructs, impedes, frustrates, or delays the apprehension of suspects and the investigation and prosecution of a person who committed a crime. PROHIBITED ACTS UNDER P.D. No. 1829 (Sec. 1) i.

Accomplice vs. Accessory Accomplice Participates before or during the commission of the offense. Knows the criminal design of the principal or merely saw the criminal acts of the principal and concurs with it. Provides material or moral aid in an efficacious way but not in a manner indispensable to the offense. No exemption from liability. One degree lower than the principal’s.

Accessory Takes part subsequent to the commission of the offense. Has knowledge of the commission of the crime and takes part subsequent to its commission neither as principal nor accomplice. Acts in the three specific ways in Art. 19.

May be exempted liability per Art. 19 and 20 and for light felonies. Two degrees lower than the principal’s.

ii.

iii.

iv.

(Reyes, The Revised Penal Code: Book One, 2006, p.579-580)

Under the Anti-Fencing Law (P.D. 1612), one who knowingly profits or assist the principal to profit from the effects of robbery or theft is NOT only an accessory but also principal for fencing. Fence is a person who commits the act of fencing. A

preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the

fiscal's offices, in Tanodbayan, or in the courts; making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

vi.

vii.

viii.

ix.

An accessory is exempt from criminal liability, when the principal is his (SADLena): ● ● ● ●

Spouse; Ascendant; Descendant; or Legitimate, natural or adopted brother, sister or relative by affinity within the same degree. (Art. 20, RPC)

Accessory is NOT exempt from criminal liability, even if the principal is related to him, if such accessory: ● ●

Profited by the effects of the crime; or Assisted the offender to profit by the effects of the crime. (Art. 20, supra)

Basis: The exemption provided for in this article is based on the ties of blood and the

preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article. (Reyes, The Revised Penal Code: Book One, 2006, p.580) When the relatives assist the principal by concealing or destroying the body of the crime or by assisting in the escape of the principal, the law recognizes that they are doing so because they are motivated by their natural affection for the offender. However, when they profit or assist the offender in profiting by the effects of the crime, they are doing so because of greed and not because of filial affection. Hence, they are not exempted from criminal liability. Ties of blood or relationship constitute a more powerful incentive than the call of duty. The fact that the offender is not criminally liable as accessory under Art. 20 of the RPC does NOT absolve him from liability for his acts punishable under P.D. No. 1829, Obstruction of Justice. The benefits of the exemption in Art. 20 do not apply to P.D. No. 1829 (Obstruction of Justice). Two Kinds of Accessory by concealing or harboring the offender a. A public officer who acts with abuse of public functions is liable whatever crime may have been committed by the offender; b. A private individual if the author of the crime is guilty of treason, attempt on the life of the Chief Executive, murder, parricide or is known to be habitually guilty of some other crime. (Boado, Notes and Cases on the Revised Penal Code, 2018) A police officer who was present when the crime was committed abused his official function when he failed to immediately arrest the offender and conduct a speedy investigation of the crime, but instead left the scene of the crime together with the offender, thus assisting the offender to escape. Being a public officer, he is an accessory to the crime. (People vs. Antonio, G.R. No. 128900, July 14, 2000) Art. 58 of RPC provides for the additional penalty for public officers who act with abuse of their public function. (Boado, supra)

b. CONSPIRACY AND PROPOSAL

QUANTUM OF EVIDENCE REQUIRED IN CONSPIRACY

General Rule: conspiracy and proposal are not punishable because they are mere preparatory acts; they are not the overt act that amount to the commencement of the felony. Exception: such are punishable only if there is a law making it a felony. If there is no law penalizing it, then, there is no crime committed. It is only a manner of incurring the criminal liability. (Reyes, The Revised Penal Code: Book One, 2006, p.124) Examples of Conspiracy as a felony: a. b. c. d. e. f.

Conspiracy Conspiracy Conspiracy Conspiracy Conspiracy Conspiracy Conspiracy 11479.

to to to to to to to

Commit Commit Commit Commit Commit Commit Commit

Treason Rebellion Insurrection Arson Coup d’ etat Sedition and lately, Terrorism under RA

Proposal to commit a felony which are punishable by law: 1. 2. 3. 4. 5.

Proposal Proposal Proposal Proposal Proposal 9372.

to to to to to

commit commit commit commit commit

Treason Rebellion Coup d' etat Insurrection; and lately Terrorism under RA

the

Modern

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (Art. 8[2], RPC) Requisites of Conspiracy 1. That two or more persons come to an agreement; 2. That the agreement concerns the commission of a felony; and 3. That the execution of the felony is decided upon.

 Generally, the testimony of a co-conspirator is not sufficient for the conviction of the accused unless other evidence supports such testimony. As an exception, however, the testimony of a co conspirator, even if uncorroborated, will be considered sufficient if given in a straightforward manner and it contains details which could not have been the result of deliberate afterthought. (People vs. Mamarion, G.R. No. 137554, October 1, 2003)  Where the quantum of proof required to establish conspiracy is lacking, the doubt created as to whether accused acted as principal or accomplice will always be resolved in favor of the milder form of criminal liability, that of mere accomplice. (People vs. Samudio, G.R. No. 126168, March 7, 2001) Types of Conspiracy

Note: There is no crime of Proposal to commit Sedition. CONSPIRACY (Darling Prosecutor’s Nursery)

Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused when such acts point to a joint purpose, design, concerted actions and community of interest. The same degree of proof required for establishing a crime is required to support a finding of conspiracy. (Estrada, Criminal Law Book One, 2011)

1. Conspiracy as a crime itself; and 2. Conspiracy as a means of committing a crime a. By pre-agreement or planning; b. Implied from the concerted acts of the offenders, otherwise known as implied

conspiracy.

CONSPIRACY BY PRIOR AGREEMENT A conspirator is liable as long as he appeared in the scene of the crime except when he is the mastermind who is liable whether he appears or not. This is because he is PBI and without his inducement, the crime would not have been committed. He is the origin of the mens rea.

Doctrine of IMPLIED CONSPIRACY The doctrine of implied conspiracy holds two or more persons participating in the commission of a crime collectively liable as co conspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose of objective. The existence of a conspiracy shall be inferred or deduced from their criminal participation in pursuing the crime and thus the act of one shall be the act of all. It may be deduced from the mode and manner by which the offense was perpetrated or inferred from the acts of the accused themselves when such point to a joint purpose and design, concerted action and community of interest. (People vs. Liad, G.R. Nos. 133815-17, March 22, 2001) Note: There is implied conspiracy if it is proven that two or more persons aimed their acts towards the accomplishment of the same unlawful object each doing a part so that their acts although apparently independent are in fact connected and cooperative indicating a unity of purpose. 

Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one a party to conspiracy absent the intentional participation in the act with a view to the furtherance of the common design and purpose. (People vs. Bragaes, G.R. No. L-62359, November 14, 1991)

General Principle of Conspiracy – ACT OF ONE IS THE ACT OF ALL When conspiracy is established all who participated therein, irrespective of the quantity and quality of their participation, are liable equally, whether conspiracy is planned or instantaneous. The criminal liability of one is the same as the criminal liability of one of the others, unless one or some of the conspirators committed another crime which is not part of the intended crime. (People vs. Valdez, G.R. No. L35696. March 28,1988) When there is no conspiracy, each of the offenders is liable only for the act he executed.

General Rule: When the conspiracy is established, all who participated therein, regardless of their participation, are equally liable. Exception: Unless one or some of the conspirators committed another crime which is not a part of the crime intended.  The mere fact that the gunman arrived and left the crime scene together with the accused persons does not automatically mean that they shared a common design and a unity of purpose in killing the deceased — mere presence, knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose. (People vs. Natividad, G.R. No. 151072. September 23, 2003) EXTENT OF LIABILITY Co-conspirators are criminally liable only for the acts done pursuant to the conspiracy on how and what are the necessary and logical consequences of the intended crime.  Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended. (People vs. Pabillare, G.R. Nos. 139474-75, December 11, 2003) Imputability Doctrine: Under this, the act of an offender is imputable to his co-conspirator although they are not similarly situated in relation to the object of the crime (Campanilla, Criminal Law Reviewer Volume I, 2019, p. 96) EXTENT OF LIABILITY OF PRINCIPALS Collective criminal responsibility – This is present when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all. Principals by direct participation have collective criminal responsibility. Principals by induction, except those who directly forced another to

commit a crime, and principals by direct participation have collective criminal responsibility. Principals by indispensable cooperation have collective criminal responsibilities with the principals by direct participation. (Reyes, The Revised Penal Code: Book One, 2006, p. 540) Individual Criminal Responsibility – In the absence of any previous conspiracy, unity of the criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and NOT collective, and each of the participants is liable only for the act committed by him. (U.S. vs. Magcomot, G.R. No. 4329, March 30, 1909) STRUCTURES CONSPIRACIES a.

MULTIPLE

The “wheel” or “circle” conspiracy, in which there is a single person or group (“the hub”) dealing individually with two or more other persons or groups (“the spokes”); and The “chain” conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001)

Syndicated crime group vs. Conspiracy 1. Syndicate as defined in Sec. 23 of RA 7659 refers to a group of two or more persons collaborating, confederating or mutually aiding one another for the purpose of gain in the commission of any crime. Conspiracy exists when two or more persons agree and decide to commit any crime; 2. In syndicate, an offense is committed by a group for purposes of gain. Such is not necessary in conspiracy; 3. In syndicate, a crime group is an organized group. Such organization is not necessary in conspiracy. (People vs. Alberca, G.R. No. 117106, June 26, 1996)

PROPOSAL There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. (Art. 8[3], RPC) Requisites of Proposal to commit a felony 1. That a person has decided to commit a felony; and 2. He proposes its execution to some other person or persons. There is no proposal when: a. The person who proposes is not determined to commit the felony; b. There is no decided concrete proposal; c. It is not the execution of a felony that is proposed. (Estrada, Criminal Law Book One, 2011) c. MULTIPLE OFFENDERS i. Recidivism A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code. (People vs. Lagarto, G.R. No. 65833, May 6, 1991) Requisites (TPEC): 1. That the offender is on trial (reckoned from the time of arraignment) for an offense; 2. That he was previously convicted by final judgment of another crime; 3. That both first and second offenses are embraced in the same title of the RPC; and 4. That the offender is convicted of the new offense. (Reyes, The Revised Penal Code: Book One, 2006, p.378) Meaning of “at the time of his trial for one crime” – it is meant to include everything that is done in the course of the trial from arraignment until the sentence is promulgated by the judge in open court. (Estrada, Criminal Law Book One, 2011) NOTE: In recidivism, it is sufficient that the succeeding offense be committed after the commission of the preceding offense provided

that at the time of his trial for the second offense, the accused had already been convicted of the first offense.  Even if the accused was granted a pardon for the first offense, but he commits another felony embraced in the same title of the RPC, the first conviction is still counted to make him a recidivist since pardon does NOT obliterate the fact of his prior conviction. (US vs. Sotelo, G.R. No. 9791, October 3, 1914; People vs. Lacao, Sr., G.R. No. 95320, September 4, 1991) Pardon only excuses the service of the penalty, but not the conviction. NOTE: The rule is different in case of amnesty which theoretically considers the previous transgression as NOT punishable. Recidivism must be taken into account no matter how many years have intervened between the first and second felonies. (People vs. Jaranilla, G.R. No. L–28547, February 22, 1974) Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the RPC, it is taken into account as aggravating in imposing the penalty. If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in order to constitute recidivism. Also, judgments of conviction handed on the same day shall be considered as only one conviction. (Galang vs. People, G.R. No. L–45698, December 18, 1937) ii. Habituality (or Reiteracion) Requisites: (GETSCo) 1. That the accused is on Trial for an offense; 2. That he previously Served sentence for another offense to which the law attaches an a. Equal or b. Greater penalty or c. for two or more offenses to which the law attaches a lighter penalty than that for the new offense; and 3. That he is Convicted of the new offense. (Reyes, The Revised Penal Code: Book One, 2006, p.381)

NOTE: a. The phrase “previously punished” employed in defining reiteracion means that the accused has served out the sentence for his previous crime (Campanilla, Criminal Law Reviewer: Volume I, 2019, p. 103). b. If there is more than one prior crime, reiteracion is present even if previous crimes are punishable by a penalty lesser than that for present crime. Thus, there is reiteracion even if the penalties for grave slander, qualified trespass to dwelling and robbery, which have been served out, are lesser than that for the crime of murder. (People vs. Molo, G.R. No. L-44680, January 11, 1979; Id.) c. An offender can be a recidivist and a habitual delinquent at the same time if he was convicted for a third time for the crimes of estafa, robbery and theft which are all within Title 10 or for serious and less serious physical injuries which are within Title 8. (Estrada, Criminal Law Book One, 2011) d. An offender may be a habitual delinquent without being a recidivist if the three convictions refer to the specific felonies not embraced in the same title of the code like robbery, falsification, and serious physical injuries. (Id.) iii. Quasi-recidivism Elements: 1. That the offender was already convicted by final judgment of one offense. 2. That he committed a new felony before beginning to serve such sentence or while serving the same. QUASI-RECIDIVISM – 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. He shall be punished by the maximum period of the penalty prescribed by law for the new felony. (Reyes, The Revised Penal Code: Book Two, 2006, p.185) NOTES: The new offense need not be of a different character from that of the former offense. It does not also require that the two offenses are

embraced in the same title of the RPC. Quasirecidivism cannot be offset by ordinary mitigating circumstances. (Reyes, supra) iv. Habitual Delinquency Definition. A person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes robo, hurto, estafa, or falsificacion, he is found guilty of any of said crimes a third time or oftener. (Art. 62, RPC) NOTE: The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." (Almeda vs. Villaluz, G.R. No. L-31665 August 6, 1975) 4. PENALTIES Penalties – are the punishments imposed by the state upon a person who commits a deliberate or negligent act or for omitting to act when there is a duty to do so. Purpose of Punishment – To secure justice and for the protection of the rights of the state’s inhabitants. Transgression of the law is an affront or defiance to the State. Basis of the right to punish violations of penal law- Police Power of the State. Different juridical conditions of penalty: a. Must be productive of suffering, without however affecting the integrity of the human personality; b. Must be personal – no one should be punished for the crime of another; c. Must be commensurate with the offense – different crimes must be punished with different penalties;

d. Must be certain – no one may escape its effects; e. Must be correctional; f. Must be equal for all; and g. Must be legal – it is the consequence of a judgment according to law. NOTE: Only those penalties prescribed by law prior to its commission may be imposed. Nullum crimen, nulla poena sine lege. To do otherwise would violate the prohibition against ex post facto law. Theories Justifying Penalty (JERPS) 1. Justice – to vindicate a right violated by the offender. 2. Exemplary – to serve as an example for the public. 3. Reformation – to correct man’s nature to do wrong. 4. Preventive – to suppress danger against the rights of the state’s inhabitants. 5. Self-defense – The state has the right to exist. This existence is imperiled by lawlessness. (Estrada, Criminal Law Book One, 2011) Three–fold Purpose of Penalty 1. Retribution or expiation – the penalty is commensurate WITH the nature and gravity of the offense. 2. Correction or reformation – penalties are imposed to reform a criminal. 3. Social Defense – A society has an existence to maintain and assert. (Id.) Constitutional Restrictions on Penalties: Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted. (Sec. 19 [1], Art. III, 1987 Constitution) Measures of prevention or safety which are not considered penalties: 1. The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. 2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. 3. Suspension from the employment or public office during the trial or in order to institute the proceedings.

4. Fines and other corrective measures which, in the exercise of their administrative or disciplinary powers, superior officials may impose upon their subordinates. 5. Deprivation of rights and the reparations which the civil law may establish in penal form. (Art. 24, RPC) REASON: Constitutional provision on presumption of innocence. They are not imposed after trial on the merits but are mere preventive measures, hence cannot be considered as penalties. a. IMPOSABLE PENALTIES An act or omission cannot be punished by the State if at the time it was committed, there was no law prohibiting it. (Art. 21, RPC) Reason: A law cannot be rationally obeyed unless it is first shown, and a man cannot be expected to obey an order that has not been given. (Reyes, The Revised Penal Code: Book One, 2006, p.587)

3. Suspension from public office, the right to vote and be voted for, the profession or calling; 4. Civil interdiction; 5. Indemnification; 6. Forfeiture or confiscation of instruments and proceeds of the offense; and 7. Payment of costs. NOTE: Disqualification and suspension are both principal and accessory penalties. They are principal penalty when imposed by the RPC for a specific crime; otherwise, they are accessory penalty which need not be stated in the sentence but follow the principal penalty to which they are attached. (Boado, p. 225) Based on their Severity or Gravity 1. 2. 3. 4.

Capital; Afflictive; Correctional; and Light.

b. CLASSIFICATION

This classification corresponds to the classification of felonies in Art. 9, into grave, less grave and light.

CLASSES OF PENALTIES: (Art. 25, RPC)

Based on their Nature:

Principal Penalties:

a. Principal Penalties – those expressly imposed by the court in the judgment of conviction.

1. Capital Punishment (Death); 2. Afflictive Penalties (Reclusion

perpetua, Reclusion temporal, Perpetual or temporary absolute disqualification, Perpetual or temporary special disqualification, Prision mayor); 3. Correctional penalties (Prision correccional, Arresto mayor, Suspension, Destierro); and 4. Light penalties (Arresto menor, Public censure). Penalties common to the three preceding classes: Fine, and Bond to keep the peace. Accessory Penalties: 1. Perpetual or disqualification; 2. Perpetual or disqualification;

temporary temporary

absolute special

b. Accessory penalties – are those that are deemed included in the imposition of the principal penalties. c. Indivisible – are those which have no fixed duration. These are: Death; Reclusion perpetua; Perpetual absolute or special disqualification; Public censure. d. Divisible – are those that have fixed duration and are divisible into three periods (minimum, medium and maximum). (Reyes, The Revised Penal Code: Book One, 2006, p.604-605) Based on Subject Matter: a. Corporal (death); b. Deprivation of freedom (reclusion, prision, arresto); c. Restriction of freedom (destierro);

d. Deprivation of rights (disqualification and suspension); and e. Pecuniary (fine). (Id.) NOTE: R.A. No. 9346 prohibits the imposition of death penalty.  For those crimes where the penalty imposed is death but reduced to reclusion perpetua because of RA No. 9346, the civil indemnity as well as the award for moral and exemplary damages shall each be set at P100,000.00. (People vs. Gerola, G.R. No. 217973 July 19, 2017, J. Caguioa) Sec 2 of RA 9346 (“An Act Prohibiting the imposition of death penalty in the Philippines”) provides that: In lieu of death penalty, the following shall be imposed: 1. Penalty of reclusion perpetua when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or 2. Penalty of life imprisonment, the law violated does not make use of the nomenclature of the penalties of the revised penal code. THREE SCALES of penalties in the Code and their significance: a. Art. 25 classifies the penalties into principal and accessories; b. Art. 70 provides for the scale when there are two or more sentences to be served, including the three–fold rule; c. Art. 71 graduates the penalties into the order of severity for purposes of applying the rules under Art. 61 in relation to Art. 50–57, the penalty imposable on principal, accomplices, and accessories for consummated, frustrated, and attempted felonies.

Temporary disqualification and suspension, when imposed as accessory penalties, have different durations – they follow the duration of the principal penalty. What if the fine is exactly P200 (or P40,000 under R.A. 10951), how do you reconcile Art. 9 and Art. 26? Art. 9 should prevail when the issue is prescription of crime, the same being the forfeiture of the right of the state to prosecute the offender. It is considered a light felony and prescribes in 2 months. But Art. 26 should prevail when the issue is prescription of penalty, the same being the loss of the state’s power to enforce the judgment against the convict. It is considered correctional, and prescribes in 10 years. (Reyes, The Revised Penal Code: Book One, 2006, p.607) NOTE: A fine is as much a principal penalty as imprisonment; it should not and cannot be reduced to a prison term. A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term. There is no rule for transmutation of the amount of a fine into a term of imprisonment. Neither does the Code contain any provision that a fine when imposed in conjunction with imprisonment is subordinate to the latter penalty. In sum, a fine is as much a principal penalty as imprisonment. Neither is subordinate to the other. (People vs. Dacuycuy, G.R. No. 45127, May 5, 1989) c. DURATION AND EFFECTS DURATION OF PENALTIES PENALTY Reclusion Perpetua

A fine, whether imposed as a single or as an alternative penalty, shall be considered an:

Reclusion Temporal

a. Afflictive penalty, if it exceeds 1,200,000 pesos; b. Correctional penalty, if it does NOT exceed 40,000 pesos but is NOT less than 1,200,000 pesos; c. Light penalty, if it is less than 40,000 pesos (Art.26, RPC as amended by R.A. No. 10951)

Temporary Disqualification

Prision Mayor

Prision Correccional

DURATION 20 years and 1 day to 40 years. 12 years and 1 day to 20 years. 6 years and 1 day to 12 years, except when disqualification is accessory penalty, in which case its duration is that of the principal penalty. 6 months and 1 day to 6 years, except when

Suspension Destierro Arresto mayor Arresto menor Bond to keep the peace

suspension is an accessory penalty, in which case its duration is that of the principal penalty. 1 month and 1 day to 6 months. 1 month to 30 days The period during which the bond shall be effective is discretionary on the court.

the defendant commences to serve his sentence. Paragraph (c) applies in cases of: 1. Penalties consisting in deprivation of liberty and the offender is undergoing preventive imprisonment but the offender is entitled to a deduction of full time or 4/5 of the time of his detention; 2. Temporary penalties and the offender is not under detention because the offender is released on bail. (Art. 28)

A person condemned to undergo reclusion perpetua shall remain in prison perpetually, or for the rest of his natural life. However, he becomes eligible for pardon by the Chief Executive after he has been imprisoned for at least 60 years, unless he is deemed unworthy of such pardon.

Examples of Temporary Penalties:

The imputation of the 30-year duration to reclusion perpetua in Articles 27 and 70 is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (Boado, p. 239)

Examples of penalties deprivation of liberty:

COMPUTATION OF PENALTIES Rules for the Computation of Penalties The Director of Prisons or the warden should compute the penalties imposed upon the convicts, observing the following rules: a.

If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. NOTE: Under Art. 24, the arrest and temporary detention of the accused is not considered a penalty.

b. If the offender be NOT in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. c. The duration of the other penalties shall be computed only from the day on which

a. Temporary absolute disqualification; b. Temporary special disqualification; c. Suspension. consisting

a. Imprisonment b. Destierro

Destierro

means banishment or only a prohibition from residing within a radius of 25 kilometers from the actual residence of the accused for a specified length of time. (Boado, p. 241) PERIOD OF PREVENTIVE IMPRISONMENT DEDUCTED FROM TERM OF IMPRISONMENT (Art. 29 as amended by R.A. No. 10592) Preventive Imprisonment - It is the period of detention undergone by an accused where the crime with which he is charged is non-bailable or, even if bailable, he is unable to post the requisite bail. (Reyes, The Revised Penal Code Book I, 2017) Requisites: 1. The sentence imposed by the court consists of deprivation of liberty or imprisonment; 2. The offender has undergone preventive imprisonment during the pendency of the criminal proceeding until the finality of the judgment; and 3. The detention prisoner argues voluntarily in writing to abide by the same disciplinary rules

imposed upon convicted prisoners. (Reyes, supra) Purpose: To prevent the flight of the accused and his going into hiding.

comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held.

Offenders not entitled to the full time or four-fifths of the time of preventive imprisonment.

Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence.

a. Recidivists, or have been convicted previously twice or more times of any crime; b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily;

Temporary absolute disqualification lasts during the term of the sentence, and is removed after the service of the same.

NOTE: A habitual delinquent is NOT entitled to the full time or 4/5 of the time of preventive imprisonment, because a habitual delinquent is necessarily a recidivist or that at least he has been convicted previously twice or more times of any crime. NOTE: Although destierro does not constitute imprisonment (which is typical example of deprivation of liberty), it is nonetheless a deprivation of liberty. It follows that Art. 29 is applicable when the penalty is destierro. The accused should be credited with the time during which he has undergone preventive imprisonment. (People vs. Bastasa, G.R. No. L– 32792, February 2, 1979) EFFECTS OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. Note: A plebiscite is not contemplated in Art.30(2), hence the offender may vote in that exercise subject to applicable election laws. (Reyes, The Revised Penal Code: Book One, 2017) 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is

Exceptions: (1) (2)

deprivation of the public office or employment; and loss of all rights to retirement pay or other pension for any office formerly held. (Art. 30, RPC)

EFFECT OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION FOR PUBLIC OFFICE, PROFESSION OR CALLING 1. The deprivation of the office, employment, profession or calling affected. 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. (Art. 31, RPC) The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege.  The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence. (Lacuna vs. Abes, G.R. No. L28613, August 27, 1968) If temporary disqualification or suspension is imposed as an accessory penalty, the duration is the same as that of the principal penalty.

EFFECT OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION FOR THE EXERCISE OF THE RIGHT OF SUFFRAGE 1. Deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. 2. The offender shall not be permitted to hold any public office during the period of his disqualification. (Art. 32, RPC) EFFECTS OF THE PENALTIES OF SUSPENSION FROM ANY PUBLIC OFFICE, PROFESSION OR CALLING, OR THE RIGHT OF SUFFRAGE 1. Disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. 2. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension. (Art. 33, RPC) CIVIL INTERDICTION Effects of civil interdiction: Civil interdiction deprives the offender during the time of his sentence of the rights of: a. Parental Authority b. Guardianship, either as to the person or property of the ward c. Marital Authority d. The right to manage his property; and e. The right to dispose of such property by any act or conveyance inter vivos. NOTE: He can dispose of such property by will or donation mortis causa. (Art. 34, RPC) Civil Interdiction is imposed when the penalty is: 1. Death when not executed. 2. Reclusion perpetua, or 3. Reclusion temporal.

NOTE: A person civilly interdicted cannot appoint an agent to manage his properties. Otherwise, the person civilly interdicted will be doing indirectly what the law prohibits him to do. (Reyes, supra.) EFFECTS OF BOND TO KEEP THE PEACE Bond to keep the peace or for good behavior is imposed as a penalty for grave and light threats (Art. 284, RPC). This is different from a bail bond (Rule 114, ROC) to secure the provisional release of an accused person after his arrest or during trial but before final judgment of conviction. 1. The offender must present two sufficient sureties who shall undertake that: a. the offender will not commit the offense sought to be prevented; b. in case such offense be committed they will pay the amount determined by court. 2. The offender must deposit such amount with the clerk of court to guarantee said undertaking; 3. The offender may be detained, if he cannot give the bond: a. for a period not exceeding 6 months if prosecuted for grave or less grave felony; b. for a period not to exceed 30 days, if for a light felony. (Art. 35, RPC) Effects of Accessory Penalties Accessory Penalty Perpetual or Temporary Absolute Disqualificatio n Perpetual or Temporary Special Disqualificatio n

Effects Deprivation of any public office or employment of offender; Deprivation of the right to vote in any election or to be voted upon; Loss of rights to retirement pay or pension. (Sec. 30)

For public office, profession or calling: ●

●

Deprivation of the office, employment, profession or calling affected; Disqualification for holding similar offices or employments during the period of disqualification; (Sec.

31) For the exercise of right to suffrage:

●

Deprivation of the right to vote or to be elected in an office; Cannot hold any public office during the period of disqualification. (Sec.

32) Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling Civil Interdiction

Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; Cannot hold another office having similar functions during the period of suspension.

(Sec. 33)

Deprivation rights:

the

following

Parental authority Guardianship over the ward ● Marital authority ● Right to manage property and to dispose of the same by acts inter vivos. (Sec. 34) Forfeiture in favor of the Government of the proceeds of the crime and the instruments or tools with which it was committed. (Sec. 45) ● ●

Indemnificatio n or Confiscation of Instruments or Proceeds of the Offense Payment of Costs

If the accused be convicted, the costs may be charged against him If he be acquitted, costs are de officio, i.e., each party will bear his/her own expense.

PARDON AND ITS EFFECTS Effects of pardon given by the President: 1. A pardon shall NOT work the restoration of the right to hold public office, or the right of suffrage. Exception: when such rights be expressly restored by the terms of the pardon. 2. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Art. 36, RPC) General Rule: When the principal penalty is remitted by pardon, only the effect of that principal penalty is extinguished but not the accessory penalties attached to it.

Exception: When an absolute pardon is granted after the term of imprisonment has expired, it removes what is left of the consequences of conviction. (Reyes, The Revised Penal Code: Book One, 2006, p.624) Pardon by the Chief Pardon by offended Executive party (Art. 36) (Art. 23) As to the crimes covered (1) impeachment cases; Applies only to crimes (2) cases that have not against chastity. yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC.

(Risos-Vidal vs. COMELEC and Estrada, G.R. No. 206666, January 21, 2015)

As to the effect on civil liability Cannot affect the civil The offended party can liability ex delicto of the waive the civil liability. offender. As to extinguishment of criminal liability Extinguishes criminal Marriages contracted liability. between the offender and the offended party in the crime of rape,5 as well as in the crime of abuse of chastity,6 to totally extinguish the criminal liability of and the corresponding penalty that may have been imposed upon those found guilty of the felony.

(People v De. Guzman, G.R. No. 185843 , March 3, 2010)

When granted Can be extended only Can be validly granted after conviction by final only before the institution judgment of the accused. of the criminal action. Pardon in the form of marriage will extinguish criminal liability if the marriage between the offended party and offender occurred when the criminal action is

already instituted or when a penalty has already been imposed. (Art. 344,

RPC; Campanilla, Criminal Law Reviewer: Volume I, pg. 432)

To whom granted To any or all of the In seduction, abduction accused. and acts of lasciviousness, it benefits the co–principals, accomplices and accessories. In adultery and concubinage, must include both offenders. As to whether it can be conditional May be absolute or Cannot validly be made if conditional. subject to a condition.

General Rule: When there is mitigating or aggravating circumstance, the penalty is lowered or increased by period only. Exception: When the penalty is divisible and there are two or more mitigating and without aggravating circumstances, in which case the penalty is lowered by degree. (Reyes, The Revised Penal Code: Book One, 2006, p. 695) Period – It is one of the three equal portions, called minimum, medium and maximum, of divisible penalty. General Rule: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. (Id.) Exceptions: The following accomplices are punished with same penalty imposed upon the principal:

d. APPLICATION AND GRADUATION OF PENALTIES RULES FOR GRADUATING PENALTIES (Art. 61) The penalty prescribed by law for the felony shall be lowered by one or two degrees, as follows (Article 50-57): 1. For the principal in frustrated felony – one degree lower; 2. For the principal in attempted felony – two degrees lower; 3. For the accomplice in consummated felony – one degree lower; 4. For the accessory in consummated felony – two degrees lower.

Principal Accomplice Accessory

Degree – it is one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided for in Article 71.

CONSUM MATED

FRUSTRATED

ATTEMPTED

0 1 2

1 2 3

2 3 4

Note: The figure “0” represents the penalty prescribed by law in defining a crime, which is to be imposed on the principal in a consummated offense, in accordance with the provisions of Article 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law.

a. The ascendants, guardians, curators, teachers and any person who by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slave trade or abduction. (Art. 346, RPC) b. One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268, RPC) Rules of Graduating Penalties under Article 61: 1. When penalty prescribed is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale in Art. 71; 2. When the penalty prescribed for the crime is composed of two indivisible penalties or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale; 3. When the penalty prescribed for the crime is composed of one or two indivisible penalties

and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum period of that immediately following in said graduated scale. EFFECT OF THE ATTENDANCE OF MITIGATING OR AGGRAVATING CIRCUMSTANCES AND OF HABITUAL DELINQUENCY

accomplices and accessories as to whom such circumstances are attendant. 4. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. 5. Habitual delinquency shall have the following effects: ●

Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules:

●

1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. (a) When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. (b) The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of 2 or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime. 2. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals,

●

Third conviction: The culprit is sentenced to the penalty for the crime committed and to the additional penalty of prision correccional in its medium and maximum period. Fourth conviction: The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its minimum and medium periods. Fifth or additional conviction: The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. (Art. 62, RPC)

NOTES: ●

●

● ●

●

In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years. (Reyes, The Revised Penal Code: Book One, 2006, p. 717) The imposition of the additional penalty on habitual delinquents is CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes. It is simply a punishment on future crimes on account of the criminal propensities of the accused. The imposition of such additional penalties is mandatory and is not discretionary. Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime. It applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime.

●

Commission of any of the specific felonies without first being convicted before committing the other will not make the accused a habitual delinquent. RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES

🕮 The imposable penalty for the crime of rape is reclusion perpetua. The accused being entitled to the privileged mitigating circumstance of minority, the imposable penalty is reclusion temporal in its medium period, absent any other mitigating or aggravating circumstance. (People vs. Galang, G.R No. 70713, June 29, 1989) Rules for the application of indivisible penalties: Penalty is single and indivisible The penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. Penalty is penalties:

composed

RULES FOR THE APPLICATION OF PENALTIES WHICH CONTAIN THREE PERIODS Rules for penalties:

Basis of penalty: number and importance. NOTE: If the penalty is reclusion perpetua to death, special mitigating circumstance cannot be appreciated to graduate the penalty by one degree. However, this penalty can be reduced by degree is there is a privilege mitigating circumstance such as minority.

application

divisible

1. No aggravating and No mitigating: medium period. 2. One mitigating: minimum period. 3. One aggravating: maximum period (but regardless of the number of aggravating circumstances, the courts cannot exceed the penalty provided by law in its maximum period). 4. Mitigating and aggravating circumstances present: - to offset each other according to relative weight. 5. Two or more mitigating and no aggravating: - one degree lower (has the effect of a privileged mitigating circumstance). (Art. 64, RPC) RULE IN CASES IN WHICH THE PENALTY IS NOT COMPOSED OF THREE PERIODS

indivisible

a. One aggravating circumstance present: HIGHER penalty. b. No mitigating circumstances present: LESSER penalty. c. Some mitigating circumstances present and no aggravating: LESSER penalty d. Mitigating and aggravating circumstances offset each other (Art. 63, RPC).

the

In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions. (Art. 65, RPC) Illustration of the computation when the penalty has three periods: Prision mayor which has a duration of 6 years and 1 day to 12 years i.

Subtract the minimum (disregarding the 1 day) from the maximum: 12 years – 6 years = 6 years

ii. Divide the difference by 3: 6 years / 3 = 2 years iii. Use the minimum of 6 years and 1 day of prision mayor as minimum of the MINIMUM PERIOD. Then add 2 years to

the minimum (disregarding the 1 day) to get the maximum of the MINIMUM PERIOD: Range of the MINIMUM PERIOD = 6 years and

1 day to 8 years

iv. Use the maximum of the minimum period as minimum of the MEDIUM PERIOD, and add 1 day to distinguish it from the maximum of the minimum period. Then add 2 years to the minimum of the medium period (disregarding the 1 day) to get the maximum of the MEDIUM PERIOD: Range of the MEDIUM PERIOD = 8 years and

1 day to 10 years

v. Use the maximum of the medium period as minimum of the MAXIMUM PERIOD, and add 1 day to distinguish it from the maximum of the medium period. Then add 2 years to the minimum of the maximum period (disregarding the 1 day) to get the maximum of the MAXIMUM PERIOD: Range of the MAXIMUM PERIOD = 10 years

and 1 day to 12 years

IMPOSITION OF FINES (Art. 66) 1. The court can fix any amount of the fine within the limits established by law. 2. The court must consider – a. The mitigating and aggravating circumstances; and b. More particularly, the wealth or means of the culprit. 3. The court may also consider: a. The gravity of the crime committed; b. The magnitude of its effects on the offender’s victim; c. The heinousness of its perpetration. (People vs. Manuel, G.R. Nos. 14648-61 July 6, 1957) The courts are not bound to divide the amount of fine prescribed by law into three equal portions as in the case of imprisonment. Position and standing of the accused may also be considered as aggravating in some cases. (e.g. gambling).

When the minimum of the fines is not fixed by law, the determination of the amount of fine is left to the sound discretion of the court, provided it shall not exceed the maximum authorized by law. (Reyes, The Revised Penal Code: Book One, 2017) WHEN NOT ALL REQUISITES OF ACCIDENT IS PRESENT Penalty to be imposed if the requisites of accident (Art. 12,[4]) are not all present: 1. GRAVE FELONY: arresto mayor maximum period to prision correccional minimum period. 2. LESS GRAVE FELONY: arresto mayor minimum period and medium period. (Art. 67, RPC) If all these conditions are not present, the act should be considered as: a. reckless imprudence if the act is executed without taking those precautions or measures which the most common prudence would require; and b. simple imprudence, if it is a mere lack of precaution in those cases where either the threatened harm is not imminent or the danger is not openly visible. The case will fall under Art. 365(1). The penalty provided in Art. 67 is the same as that in Art. 365. PENALTY TO BE IMPOSED UPON A PERSON UNDER 18 YEARS OF AGE This article which prescribes the penalty to be imposed upon a person under 18 years of age has been partly repealed by R.A. No. 9344, as amended, which provides that: 1. A child 15 years and under is exempt from criminal responsibility; and 2. A child above 15 years but below 18 years of age is exempt from criminal liability unless he/she has acted with discernment. (Art. 68, RPC)

R.A. No. 9344 was further amended by R.A. No. 10630 and provides the following, among others: A child under 15 years and under at the time of the commission of the offense is exempt from criminal liability. The child shall be immediately released to the custody of his/her parents or guardian, or the child’s nearest relative, and be subjected to a community-based intervention program supervised by the local social welfare and development officer (LSWDO), unless the best interest of the child requires the referral of the child to a youth care facility or “Bahay Pagasa”. (Sec. 6, R.A. No. 9344, as amended by R.A. No. 10630) Serious Crimes Committed by Children Who Are Exempt From Criminal Responsibility – A child who is above twelve (12) years of age up to fifteen (15) years of age and who commits parricide, murder, infanticide, kidnapping and serious illegal detention where the victim is killed or raped, robbery, with homicide or rape, destructive arson, rape, or carnapping where the driver or occupant is killed or raped or offenses under Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) punishable by more than twelve (12) years of imprisonment, shall be deemed a neglected child under Presidential Decree No. 603, as amended, and shall be mandatorily placed in a special facility within the youth care faculty or ‘Bahay Pag-asa’ called the Intensive Juvenile Intervention and Support Center (IJISC). (Sec. 20-A, R.A. No. 9344, as amended by R.A. No. 10630) Child who commits repetitive offenses -– A child who is above twelve (12) years of age up to fifteen (15) years of age and who commits an offense for the second time or oftener: Provided, That the child was previously subjected to a community-based intervention program, shall be deemed a neglected child under Presidential Decree No. 603, as amended, and shall undergo an intensive intervention program supervised by the local social welfare and development officer: Provided further, That, if the best interest of the child requires that he/she be placed in a youth care facility or ‘Bahay Pagasa’, the child’s parents or guardians shall execute written authorization for the voluntary commitment of the child. (Sec. 20-B, R.A. No. 9344, as amended by R.A. No. 10630)

Diversion vs. Intervention DIVERSION Refers to an alternative, child appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (Sec. 4[i],

supra.)

INTERVENTION Refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social wellbeing. (Sec. 4[l], supra.)

Automatic Suspension of Sentence – Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, that suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. (Sec. 38, R.A. No. 9344) Discharge of the Child in Conflict with the Law – Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. But this will not affect the civil liability resulting from the commission of the offense. (Sec. 39, supra.) Return of the Child in Conflict with the Law to Court – this is for execution of judgment. This happens when the court finds that: (a) the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled; or (b) if the child in conflict with the law has willfully failed to comply with the

conditions of his/her disposition or rehabilitation program. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether: a. To discharge the child; b. To order execution of sentence; or c. To extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. (Sec. 40, supra.)

Credit in Service of Sentence – The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. (Sec. 41, R.A. No. 9344)

PENALTY TO BE IMPOSED WHEN THE CRIME COMMITTED IS NOT WHOLLY EXCUSABLE Penalty: Lower by one or two degrees than that prescribed by law. (Art. 69, RPC) Application: When there is lack of some of the conditions required to justify the deed or to exempt from criminal liability in several cases mentioned in Art. 11 and 12; provided that majority of the conditions are present. Unlawful aggression is indispensable in self–defense, defense of relatives and defense of stranger, without which, the offender is NOT entitled to reduction. (US vs. Navarro, G.R. No. 1878, March 9, 1907) NOTE: Majority of the conditions must be present. The court has the discretion to impose one or two degrees lower than that prescribed by law for the offense. But in determining the proper period of the penalty one or two degrees lower, the court must consider the number and nature of the conditions of exemption or justification present or lacking.

SUCCESSIVE SERVICE OF SENTENCE This applies when the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. Otherwise, the order of their severity (under this article) shall be followed – so that they may be executed successively. Order of severity of penalties: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Death; Reclusion perpetua; Reclusion temporal; Prision mayor; Prision correccional; Arresto mayor; Arresto menor; Destierro; Perpetual absolute disqualification; Suspension from public office, the right to vote and be voted for, the right to follow profession or calling; and 11. Public censure. The penalties which can be simultaneously served are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Perpetual absolute disqualification; Perpetual special disqualification; Temporary absolute disqualification; Temporary special disqualification; Suspension; Destierro; Public Censure; Fine and Bond to keep the peace; Civil interdiction; and Confiscation and payment of costs.

Destierro CANNOT be served simultaneously with imprisonment. The penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. (Art. 70, RPC) GRADUATED SCALES In the case in which the law prescribed a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Art. 61 shall be observed in graduating such penalty.

The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty. The courts, in applying such lower or higher penalty, shall observe the following graduated scales: SCALE NO. 1: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Death, Reclusion perpetua; Reclusion temporal; Prision mayor; Prision correccional; Arresto mayor; Destierro; Arresto menor; Public censure; and Fine.

SCALE NO. 2: 1. Perpetual absolute disqualification 2. Temporal absolute disqualification 3. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling 4. Public censure 5. Fine (Art. 71, RPC) Effect of R.A. 9346 as to the Scale of Penalty under this Article – R.A. 9346 has expressly repealed all provisions of law in so far as they apply or impose the death penalty. Thus, it has in effect deleted the penalty of death under the scales of penalty provided in the RPC. Hence, its effect is to: ●

reckon the lower degree of penalty for accomplices and accessories from the penalty actually imposed. For instance, for qualified rape punishable with death originally, the penalty on the principal under the amendatory law shall be reclusion perpetua; for the accomplice, it shall be reclusion temporal and for the accessory, prision mayor. (Reyes, The Revised Penal Code: Book One, 2017)

Must destierro be applied only when it is specifically imposed by law? – No. Destierro may be imposed when it is the penalty next lower

and the circumstances require the imposition of a penalty one degree lower.

Destierro is not a higher penalty than arresto mayor which is imprisonment or complete deprivation of liberty whereas destierro means

banishment or only a prohibition from residing within a radius of 25 kilometers from the actual residence of the accused for a specified length of time. The respective severities of arresto mayor and destierro must not be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. Penologists have always considered destierro ligther than arresto mayor. In the graduated scale of Article 71 the lawmaker had placed destierro below arresto mayor. There is, therefore, no basis in fact or in law for holding that destierro is a higher penalty than arresto mayor and that an offense penalized with destierro, falls under the jurisdiction of the court of first instance. (Duarte, G.R. No. 88232, February 26, 1990) ARTICLES. 25, 70, AND 71, COMPARED ART. 25

ART. 70

ART. 71

Penalties are classified into (1) principal and (2) accessory penalties. The principal penalties are subdivided into

Classifies the penalties, for the purpose of the successive service of sentences, according to their severity.

Provides for the scale which should be observed in graduating the penalties in degrees in accordance with Art. 61.

Destierro

capital, afflictive, correctional, and light. is above arresto menor, because it is classified as correctional penalty. placed

placed

is under

arresto menor,

according to their respective severity.

is above arresto menor. place

Destierro

is considered lighter than arresto menor.

Destierro, being

Art. 70 speaks of “severity”.

Art. 71(2), speaks of “lower

classified as a correctional penalty, is higher than arresto menor, a light penalty.

or higher” penalty.

Purpose of Minimum and Maximum Term of the ISL

Different principal penalties provided for in Art. 25 are classified and grouped into two graduated scales. Under Scale No. 1, all personal penalties, such as deprivation of life and liberty, are grouped together. Under Scale No. 2 are grouped all penalties consisting in deprivation of political rights.

The minimum term must be served and thereupon, the convict becomes eligible for parole. When released, he is not actually discharged for the rest of his sentence is served out of prison under the supervision of a parole officer. If the conditions of parole were violated by the accused, he will serve the maximum term of the ISL.

PREFERENCE IN THE PAYMENT OF THE CIVIL LIABILITIES The order of payment of civil liabilities is not based on the dates of the commission of the offense, instead, it is satisfied by following the chronological order of the dates of the final judgments. (Art. 72, RPC; Reyes, The Revised Penal Code: Book One, 2017) i. INDETERMINATE SENTENCE LAW

[REPUBLIC ACT No. 4103, as amended by Act No. 4225 and R.A. 4203] AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR OTHER PURPOSES (Indeterminate Sentence Law). Indeterminate Sentence Law (ISLAW) – It is a law which modifies the imposition of penalties under the RPC and special laws. The courts are mandated in imposing a sentence to fix a minimum and a maximum period of penalty.

As a rule, ISL is mandatory except for: (ONE – LRT- PH FEES PRNT) 1. Any persons convicted of offenses punished with death penalty or life-imprisonment; 2. To those convicted of treason, conspiracy or proposal to commit treason; 3. To those convicted of misprision of treason, rebellion, sedition or espionage; 4. To those convicted of piracy; 5. To those who are habitual delinquents; 6. To those who have escaped from confinement or evaded sentence; 7. To those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; 8. To those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment. (Sec. 2, Act No. 4103, as amended by Act No. 4225) Note: If the maximum imposable penalty of the crime committed does not exceed one year, the accused cannot avail of the benefits of the law. The accused shall suffer a straight penalty and not be eligible for ISL. Thus, ISL is applicable if the imposable penalty exceeds one (1) year of imprisonment. ISL applies even if the penalty is a result of plea bargaining. 1. Those who are already serving final judgment upon the approval of the ISL. 2. Not applicable to indivisible penalties e.g., reclusion perpetua. (Please see discussions

under e. GRADUATION PENALTIES)

3. Use of trafficked victim. (Sec. 11 of R.A. No. 9208, as amended by R.A. No. 10364); 4. Those imposed non-prison sentence. (Sec. 1 enumerates the same such as destierro, suspension, and the like)

No. 181571, December 16, 2009, as cited in Campanilla, Criminal Law Reviewer Volume I, 2019, p. 383)

ISL is applicable to the following persons: 1. Recidivists are entitled to an indeterminate sentence. (People vs. Jaramilla, G.R. No. L-28547, February 22, 1974) 2. Those who committed a crime while on parole; 3. Those who availed of plea bargaining; and 4. When the maximum penalty is more than one year. (Boado, Notes and Cases under the Revised Penal Code, 2018) Why is the indeterminate?

sentence

Penalty Imposed by the RPC vs. Imposed by ISLAW Penalty imposed by Penalty imposed by RPC ISLAW Maximum Term That which could be Must not exceed the properly imposed under maximum term fixed by the RPC, considering the said law. aggravating and mitigating circumstances. Minimum Term Within the range of the Must not be less than the penalty one degree minimum term prescribed lower than that by the same. prescribed by the RPC, without considering the Note: It is anything circumstances. within the inclusive range of the prescribed penalty. Courts are given discretion in the imposition of the indeterminate penalty.

considered

Because it cannot be determined just exactly how long the convict will serve the sentence because he may be released on parole after serving the minimum penalty. Purposes of the law: 1. Uplift and redeem valuable human material. 2. Prevent unnecessary and excessive deprivation of liberty. 3. Promote economic usefulness. (Romero vs. People, G.R. No. 171644, November 23, 2011)  In cases where the application of the law on indeterminate sentence would be unfavorable to the accused, resulting in the lengthening of his prison sentence, said law on indeterminate sentence should not be applied. (People vs. Nang Kay, G.R. No. L-3565, April 20, 1951)  The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. (People vs. Nang Kay, G.R. No. L-3565, April 20, 1951) Note: there are two requisites to apply the ruling in Nang Kay: (1) the penalty for the crime under special law must be subject to the first rule of ISLAW. (People vs. Judge Lee, Jr., G.R. No. 66859, September 12, 1984, as cited in Campanilla, Criminal Law Reviewer Volume I, 2019, p. 383) (2) the accused deserves a lenient penalty because of confession. (Batitis vs. People, G.R.

The settled practice is to give the accused the benefit of the law even in crimes punishable with death or life imprisonment provided the resulting penalty, after considering the attending circumstances, is reclusion temporal or less. ISL under the Revised Penal Code The court shall sentence the accused to an indeterminate sentence: the maximum term of which shall be that which,  in view of the attending circumstances,  could be properly imposed under the rules of the Revised Penal Code,  and the minimum term shall be  within the range of the penalty next lower to that prescribed by the Code for the offense. (Sec. 1, Act. No. 4103) 

The court shall apply Article 64 on the application of divisible penalty, Art. 160 on quasi-recidivism, and Art. 308 on incremental penalty for theft and other provisions connected with the imposition of penalties. Simply put, the maximum penalty is

that fixed with the Revised Penal Code. (Campanilla, Criminal Law Reviewer: Volume I, p. 373) Parole – is the suspension of the sentence of a convict after serving the minimum term of the indeterminate penalty, without granting a pardon, prescribing the term upon which the sentence shall be suspended.

shall suffer the subsidiary imprisonment in case of insolvency. (People vs. Fajardo, G.R. No. 48460, May 25, 1938) PENALTY HIGHER THAN RECLUSION PERPETUA IN CERTAIN CASES Penalty of death must be specifically imposed by law as a penalty for a given crime. (Art. 74, RPC)

ISL Under the Special Laws Rules for application procedure when crime is punished by special law: Maximum Term: Must not exceed the maximum term fixed by the law. Minimum Term: Must not be less than the minimum term fixed by law. There are two possible instances: 1. If the imposable penalty under the Special Penal Laws is a range of period of time of imprisonment. A is convicted of illegal possession of firearms punishable by imprisonment of 1 year and 1 day to 4 years. a. Maximum Term – shall not exceed 4 years as fixed by law. b. Minimum Term – shall not be less than the minimum of 1 year and 1 day prescribed by law. (Sec. 1, Act No. 4103) 2. If the imposable penalty indicated in the SPL is the same penalty based on the nomenclature used by the RPC. Rule: Use the same rules for crimes under RPC for applying ISLAW.

Note: the death penalty was suspended under the virtue of R.A. No. 9346. INCREASING OR REDUCING THE PENALTY OF FINE BY ONE OR MORE DEGREES Fines are also graduated into degrees for the imposition of the proper amount of the fine on accomplices and accessories or on the principals in frustrated or attempted felonies. (Art. 75, RPC) Distinctions between Fine with minimum and Fine without minimum: 1. In both cases, law fixes the maximum of the fine; 2. When the law fixes the minimum of the fine, the court cannot change the minimum; whereas, when the law does not state the minimum of the fine but only the maximum, the court can impose any amount not exceeding such maximum. 3. When the law fixes both minimum and maximum, the court can impose an amount higher than maximum; whereas, when only the maximum is fixed, it cannot impose an amount higher than the maximum. LEGAL PERIOD OF DURATION OF DIVISIBLE PENALTIES (Art. 76)

e. ACCESSORY PENALTIES PRESUMPTION IN REGARD TO THE IMPOSITION OF ACCESSORY PENALTIES

Minimum

Medium

Maximum

Reclusion Temporal

12 years and 1 day to 14 years and 8 months

17 years, 4 months and 1 day to 20 years

Prision Mayor, absolute

6 years and 1

14 years, 8 months and 1 day to 17 years and 4 months 8 years and 1

The accessory penalties provided for in Art. 40 to 45 are deemed imposed by the courts without the necessity of making an express pronouncement of their imposition. (Art. 73, RPC) NOTE: Subsidiary imprisonment is not an accessory penalty and therefore, the judgment of conviction must expressly state that the offender

10 years and 1

disqualification and temporary disqualification

day to 8 years

Prision Correcional, suspension and destierro

6 months and 1 day to 2 years and 4 months

Arresto Mayor

Arresto Menor

1 month to 2 months

1 to 10 days

day to 10 years 2 years, 4 months and 1 day to 4 years and 2 months 2 months and 1 day to 4 months 11 to 20 days

day to 12 years 4 years, 2 months and 1 day to 6 years

of each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court. Rules as to subsidiary liability (Sec. 39) PENALTY IMPOSED Prision correccional or arresto AND fine.

4 months and 1 day to 6 months

Fine only.

21 to 30 days

Whenever the penalty prescribed does NOT have one of the forms specially provided for in this Code, the periods shall be distributed, applying by analogy the prescribed rules. (Art. 77, RPC) f. SUBSIDIARY IMPRISONMENT SUBSIDIARY PENALTY (Art. 39, As Amended by R.A. No. 10159) Subsidiary Penalty A subsidiary personal liability to be suffered by the convict who has no property with which to meet the fine. New Basis for Daily Computation of Subsidiary Penalty – He shall be subject to a subsidiary personal liability at the rate of one day

Subsidiary imprisonment is not to exceed 1/3 of the term of the sentence, and in no case to continue for more than one year. Fraction or part of a day shall not be counted. Subsidiary imprisonment: b. Not to exceed 6 months – if the culprit is prosecuted for grave or less grave felony; and

WHEN THE PENALTY IS A COMPLEX ONE COMPOSED OF THREE DISTINCT PENALTIES Complex Penalty – it is a penalty prescribed by law composed of three distinct penalties, each forming a period; the lightest of them shall be the minimum period, the next shall be the medium period, and the most severe shall be the maximum period (e.g. In reclusion temporal to death, the maximum period is death, the medium period is reclusion perpetua, and minimum period is reclusion temporal).

SUBSIDIARY PENALTY

Higher than prision correccional. If the penalty imposed is not to be executed by confinement, but of fixed duration.

Not to exceed 15 days – if prosecuted for light felony. No subsidiary imprisonment. Subsidiary penalty shall consist in the same deprivations as those of the principal penalty, under the same rules as nos. 1, 2, and 3 above.

In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact that the convict suffered subsidiary personal liability therefor. When the penalty prescribed for the offense is imprisonment, it is the penalty actually imposed by the Court, not the penalty provided for by the Code, which should be considered in determining whether or not subsidiary penalty should be imposed. Subsidiary penalty shall be proper only if the accused has no property with which to pay the fine and not as a matter of choice on his part by opting to go to jail instead of paying. A convict who has property not exempt from execution sufficient enough to meet the fine cannot choose to serve the subsidiary penalty. 

An accused cannot be made to undergo subsidiary imprisonment in case of insolvency



to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. (Ramos vs. Gonong, G.R. No. L–42010, August 31, 1961) Subsidiary penalty is not an accessory penalty which inheres to a principal penalty and may therefore be imposed even if it is not expressly provided in the sentence. It is a penalty in lieu of the penalty imposed in the sentence. Hence, unless the judgment or sentence expressly provides for subsidiary imprisonment, the culprit cannot be made to undergo the same.

No subsidiary penalty shall be imposed when: a. The penalty imposed is higher than prision

correccional or 6 years;

b. Additional penalty for habitual delinquency should be included in determining whether or not subsidiary penalty should be imposed; c. For failure to pay the reparation of the damage caused and indemnification of the consequential damages, d. For non–payment of the costs of the proceedings; e. Where the penalty imposed is fine and another penalty without fixed duration; f. The subsidiary penalty, though properly imposable is not expressly stated in the judgment; g. For non–payment of taxes in case of insolvency (People vs. Balagtas, GR No. L–10210, July 29, 1959); and h. In cases of censure since it has no fixed duration and is not to be executed by confinement. (Reyes, The Revised Penal Code: Book One, 2017) 5. EXECUTION AND SERVICE OF SENTENCE a. THREE-FOLD RULE THREE–FOLD RULE – the maximum duration of the convict’s sentence shall NOT be more than three times the length of time corresponding the most severe of the penalties imposed upon him. The maximum duration of the convict‘s sentence shall not be more than three times the length of

time corresponding to the most severe of the penalties imposed upon him. The phrase “the most severe of the penalties”

includes equal penalties.

The three-fold rule applies only when the convict has to serve at least four sentences. All the penalties, even if imposed by different courts at different times, cannot exceed threefold the most severe. Necessarily, the various offenses punished with different penalties must be charged under different information which may be filed in the same court or in different courts, at the same time or at different times. Subsidiary imprisonment forms part of the penalty. Indemnity is a penalty. Court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years. How is the three–fold penalty computed? (3:4:40) 1. Get the most severe penalty imposed following Art. 70; 2. Multiply by 3 the duration of the most severe penalty; 3. Add the duration of all the different sentences; 4. Compare the results of steps 2 and 3; 5. The accused to serve the lesser period which in no case shall exceed 40 years. If it exceeds 40 years, the penalty to be served is the maximum of 40 years only. When the penalty is indeterminate, how is the three–fold penalty computed? – It is three times the indeterminate sentence also. For instance, in the service of 12 penalties meted to defendant, the maximum penalty that he should serve is three times the indeterminate of 12 years to 17 years, or 36 years to 51 years. The maximum duration of his sentence should not exceed 40 years. (People vs. Sendaydiego, G.R. Nos. L–33252–54, January 20, 1978)

Where the Penalty Is Not Composed of 3 Periods:

themselves and other persons, the relief which they may receive, and their diet. (Art. 78[3], RPC)

Apply Art. 65. Rule in cases in which the penalty is not composed of three periods – in cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions.

The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. (Art. 78[4], RPC)

Different Systems of Penalty: a. The Material Accumulation System – established no limitation whatsoever and, accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life. Paragraphs 1, 2, 3 of Art. 70 follow this system. b. The Juridical Accumulation System – The service of the several penalties imposed on one and the same culprit is limited to NOT more than three-fold the length of time corresponding to the most severe and in no case to exceed 40 years. c.

The Absorption System – The lesser penalties are absorbed by the graver penalties. It is observed the imposition of the penalty in complex crimes (Art. 48), continuing crimes, and specific crimes like robbery with homicide, etc. (Reyes, The Revised Penal Code: Book One, 2006, p. 754-756) WHEN AND HOW A PENALTY IS TO BE EXECUTED

Only the penalties by final judgment can be executed. They shall be executed in the form prescribed by law and with any circumstances or incidents expressly authorized thereby. (Art. 78[1] and [2], RPC) In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among

SUSPENSION OF THE EXECUTION AND SERVICE OF THE PENALTIES IN CASE OF INSANITY (Art. 79)

See Notes in (b). EXEMPTING CIRCUMSTANCES (Art. 12) [Art. 80 is Repealed by PD 603, which was amended by R.A. No. 9344 and R.A. No. 10630] See Notes in Special Penal Laws for R.A. 9344 as amended by R.A. No. 10630. EXECUTION AND SERVICE OF OTHER PENALTIES The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. (Art. 86, RPC) DESTIERRO Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius specified which shall be not more than two hundred fifty (250) and not less than twenty-five (25) kilometers from the place designated. This means that the convict can go farther than the distance but not nearer than that specified by the court. (Art. 87, RPC) NOTE: Destierro is a principal, correctional and divisible penalty.

Destierro is imposed when: a. When death or serious physical injuries is caused or are inflicted under exceptional circumstances (Art. 247); b. When a person fails to give bond for good behavior (Art. 284); c. As a penalty for the concubine in the crime of concubinage (Art. 334); and d. When after lowering the penalty by degrees, destierro is the proper penalty.  Entering the prohibited area is evasion of the service of sentence. (People vs. De Jesus, G.R. No. L-1414, April 16, 1948) Destierro is considered as a principal, correctional and divisible penalty. Therefore, jurisdiction over crimes punishable with it lies with the Municipal Trial Court. In case the maximum penalty to which the accused may be sentenced is Destierro, he shall be released after 30 days of preventive imprisonment. ARRESTO MENOR The sentence is served in: ● Municipal Jail or; ● House of the defendant himself under the surveillance of an officer of law but only when: o the court so provides in its decision. (Art. 88, RPC) Factors in granting house detention: Health of the offender and other reasons satisfactory to the court. b. PROBATION LAW

[PRESIDENTIAL DECREE No. 968, as amended by R.A. No. 10707] ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES (Probation Law) Probation is a disposition under which a defendant, after conviction and sentence, is released subject to condition imposed by the

court and to the supervision of a probation officer. (Sec. 3[a], PD 968) Three-fold purpose of PD 968: a. Promote the correction and rehabilitation of an offender by providing him with individualized treatment; b. Provide an opportunity for the reformation of a penitent offender which might be less probable if he were a prison sentence; c. Prevent the commission of offenses. (Sec. 2, P.D. 968) Application: This shall apply to all offenders, except those entitled to benefit under the Child and Youth Welfare Code (P.D. No. 603) and similar laws (Sec. 1, P.D. 968). May be granted even if the sentence is fine only, but with subsidiary imprisonment in case of insolvency. (Sec. 4, P.D. 968) Criteria of placing an offender on probation The court shall consider: a. All information relative to the character, antecedents, environment, mental, and physical condition of the offender; and b. Available institutional and community resources. (Sec. 8, P.D. No. 968) Probation shall be denied if the court finds that: 1. The offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or 2. There is undue risk that during the period of probation the offender will commit another crime; or 3. Probation will depreciate the seriousness of the offense committed. (Sec. 8, P.D. No. 968) Disqualified offenders: 1. Sentenced to a maximum term of imprisonment of more than 6 years; 2. Convicted of any crime against national security; 3. Previously convicted by final judgment of an offense punished by imprisonment of not less

4. 5. 6.

7. 8.

than one month and one day and/or fine of not more than Php 1,000; Those who have once been on probation; Those who appealed; Those who are already serving sentence at the time the substantive provisions of the Decree became applicable pursuant to Sec. 33 thereof; Those convicted of drug trafficking or drug pushing (Sec. 24, R.A. No. 9165); and Convicted of election offenses under the Omnibus Election Code. (Sec. 261, B.P. 264)

Period of probation

2. 3. 4.

Reports to the probation officer at least once a month as such time and place specified by the officer.

2. Discretionary or Special – Additional conditions listed, which the courts may impose on the probationer. Enumeration is not exclusive, since probation statutes are liberal in character and enable the courts to designate any term it chooses provided the probationer’s constitutional rights are not jeopardized. (Sec. 10, P.D. No. 968 as amended by R.A. No. 107107) Termination of probation

a. If the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years. b. In all other cases, if he is sentenced to more than one year, probation shall not exceed six years. c. In case the penalty is fine only and the offender is made to serve subsidiary imprisonment, the probation shall be twice the total number of days of the subsidiary imprisonment. (Sec. 14, P.D. 968) What are the effects of Filing Grant/Denial of the Application?

●

and

FILING – operates as a waiver of the right to appeal. The order granting or denying the probation shall not be appealable. Accessory penalties – deemed suspended once probation is granted. Civil liability – not affected by the suspension of the sentence imposed on the accused who is granted probation; court must hear the civil aspect.

Conditions of Probation Two Kinds: 1. Mandatory or general – Once violated, the probation is cancelled. Probationer: ● Presents himself to the probation officer designated to undertake his supervision, at such place as may be specified in the order, within 72 hours from receipt of order.

The court may order the final discharge of the probationer, upon finding that, he has fulfilled the terms and conditions of his probation (Sec. 16, P.D. 968). Effects of termination of probation 1. The case is deemed terminated; 2. Restoration of all civil rights lost or suspended; and 3. Fully discharges liability for any fine imposed. (Sec. 16, P.D. No. 968) 

The mere expiration of the period for probation does NOT ipso facto terminate the probation. Probation is NOT co-terminus with its period. There must be an order issued by the court discharging the probationer. (Bala vs. Martinez, GR No. 67301, January 29, 1990) Distinguish Probation and Indeterminate Sentence Law Probation Sentence must not be more than 6 years. Penalty either imprisonment or fine. Sentence is suspended. Appeal forecloses probation. Available only once. A privilege; convict must apply for it.

ISLAW Maximum period of the sentence must be more than 1 year. Imprisonment only. Need for the minimum to be served. Appeal has no effect on the operation of ISLAW. Every time as long as offender is not disqualified. Mandatory; convict need not apply for it.

c. JUVENILE JUSTICE AND WELFARE ACT

[REPUBLIC ACT No. 9344, as amended by R.A. No. 10630, and in relation to P.D. 603] AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES (Juvenile Justice and Welfare Act of 2006) Definition of Terms: Child - refers to a person under the age of eighteen (18) years (Sec. 4[e], R.A. No. 9344).

Minimum Age of Criminal Responsibility (Sec. 6, R.A. 9344) Age 15 years of age or under at the time of the commission of the offense. Above 15 years but below 18 years of age without discernment Above 15 years but below 18 years of age with discernment.

Child at risk - refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances (Sec. 4[d], R.A. No. 9344). Child in Conflict with the Law - refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws (Sec. 4[e], R.A. 9344). Diversion - refers to an alternative, childappropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings (Sec. 4[i], R.A. 9344). Intervention - refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psychosocial well-being (Sec. 4[l], R.A. 9344).

Criminal Liability Exempt.

Civil Liability Subject to civil liability.

Exempt.

Subject to civil liability.

Subject to criminal liability but shall undergo diversion program.

Subject to civil liability.

XPN: Even if the same child committed a crime with discernment, he is exempted from criminal responsibility and no Information should be filed against the child if the offense committed are any of these: (a) status offenses; (b)vagrancy and prostitution under Sec. 202 of the RPC; (c) mendicancy under P.D. 1563; and (d) sniffing of rugby under P.D. 1619. (Revised

No civil liability because no private party affected.

Rules on Children in Conflict of Law) At least 18 years of age.

Subject to criminal liability.

Subject to civil liability.

Prohibition against Labeling and Shaming In the conduct of the proceedings beginning from the initial contact with the child, the competent

authorities must refrain from branding or labeling children as: young criminals, juvenile delinquents, ● prostitutes or ● attaching to them in any manner any other derogatory names. ● Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child’s class or ethnic origin. (Sec. 60, R.A. No. 9344, as amended by R.A. No. 10630) ● ●

Other Prohibited Acts The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: 1. Employment of threats of whatever kind and nature; 2. Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; 3. Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and 4. Compelling the child to perform involuntary servitude in any and all forms under any and all instances. (Sec. 61, R.A. No. 9344) NOTE: For purposes of suspension of sentence, the offender’s age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. So, although A was below 18 years old when he committed the crime, but he was already 23 years old when sentenced, he is no longer eligible for suspension of the sentence. Return of the Child in Conflict with the Law to Court – this is for execution of judgment. This happens when the court finds that: (a) the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled; or (b) if the child in conflict with

the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall: (a) determine whether to discharge the child in accordance with this Act, to order execution of sentence, or (b) to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. (Sec. 40, R.A. No. 9344) Credit in Service of Sentence – The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. (Sec. 41, R.A No. 9344) Probation as an Alternative to Imprisonment – The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. (Sec. 42, R.A. No. 9344) d. REPUBLIC ACT NO. 10592 AN ACT AMENDING ARTICLES 29, 94, 97, 98 AND 99 OF ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE This law provides for the reduction of sentence served by prisoners who show good behavior while serving his sentence or during preventive imprisonment. (Art. 94, RPC as amended by Sec.

2, R.A. No. 10592)

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30) years. (Sec. 1, R.A. No. 10592) Computation of preventive imprisonment for purposes of immediate release shall be the actual period of detention with good conduct time allowance provided that: a. If the accused is absent without justifiable cause at any stage of the trial, the court may motu proprio order the rearrest of the accused; and b. Recidivists, habitual delinquents, escapees and persons charged with

heinous crimes are excluded from the coverage of this Act. (Id.) Revised Penal Code R.A. No. 10592 During first two years of imprisonment 5 days deduction for 20 days deduction for each month of good each month of good behavior behavior During the third to fifth year of imprisonment 8 days deduction for 23 days deduction for each month of good each month of good behavior behavior During the following years until the tenth year of imprisonment 10 days deduction for 25 days deduction for each month of good each month of good behavior behavior During the eleventh and successive years of his imprisonment 15 days deduction for 30 days deduction for each month of good each month of good behavior behavior At any time during imprisonment No provision 15 days deduction for each month of study, teaching or mentoring service time rendered

improvement of a public work or promotion of a public service. (Art. 88a [3], RPC, as amended by Sec. 3, R.A. No. 11362) How imposed The court in its discretion may, in lieu of service in jail, require that the penalties of arresto menor and arresto mayor be served by the defendant by rendering community service in the place where the crime was committed:  



Under such terms as the court shall determine. Taking into consideration the gravity of the offense and the circumstances of the case, which shall be under the supervision of a probation officer. Provided, that the court will prepare an order imposing the community service, specifying:  The number of hours to be worked.  The period within which to complete the service. (Art. 88a [1], RPC, as amended by Sec. 3, R.A. No. 11362)

(Art. 97, RPC as amended by Sec. 3, R.A. No. 10592)

Effect of violation

In addition to the one-fifth deduction if prisoners who have evaded their preventive imprisonment or the service of their sentence due to a calamity like fire, earthquake, explosion, or other catastrophes surrender within two days from authorities’ declaration that such events are no longer present, a deduction of two-fifths of the period of his sentence shall be granted in case said prisoner chose to stay in the place of his confinement notwithstanding the existence of a calamity or catastrophe. (Art. 98, RPC as amended

If the defendant violates the terms of the community service, the court shall order his/her re-arrest and the defendant shall serve the full term of the penalty, as the case may be, in jail, or in the house of the defendant as provided under Article 88. (Art. 88a [4], RPC, as amended by Sec. 3, R.A. No. 11362)

by Sec. 4, R.A. No. 10592)

The Director of the Bureau of Corrections, the Chief of the Bureau of Jail Management and Penology and/or the Warden of a provincial, district, municipal or city jail may now grant irrevocable allowances for good conduct. (Art. 99,

RPC as amended by Sec. 5, R.A. No. 10592)

e. COMMUNITY SERVICE ACT (under R.A. No. 11362 which took effect on August 23, 2019) Community service – shall consist of any actual physical activity which inculcates civic consciousness, and intended towards the

Effect of compliance If the defendant has fully complied with the terms of the community service, the court shall order the release of the defendant unless detained for some other offense. (Art. 88a [5], RPC, as amended by Sec. 3, R.A. No. 11362) Can only be availed once The privilege of rendering community service in lieu of service in jail shall be availed of only once. (Art. 88a [6], RPC, as amended by Sec. 3, R.A. No. 11362)

EXTINCTION OF CRIMINAL LIABILITY TITLE FOUR: MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY

Two kinds of extinguishment of criminal liability: A. TOTAL EXTINGUISHMENT (Art.89, RPC) 1. 2. 3. 4. 5. 6. 7.

By the death of the convict; By service of the sentence; By amnesty; By absolute pardon; By prescription of the crime; By prescription of the penalty; and By the marriage of the offended woman as provided in Art. 344.

B. PARTIAL EXTINGUISHMENT (Art. 94, RPC, as amended by R.A. No. 10592) 1. By conditional pardon; 2. By commutation of sentence; 3. For good conduct allowances which the culprit may earn while he is undergoing preventive imprisonment or serving his sentence (as amended by R.A No. 10592) 4. By parole; and 5. By probation. A. TOTAL LIABILITY

EXTINCTION

CRIMINAL

contracts, and quasi-delicts. (People vs. Bayotas, G.R. No. 152007, September 2, 1994) 2. Service of sentence Crime is a debt incurred by the offender as a consequence of his wrongful act and the penalty is but the amount of his debt. When payment is made, the debt is extinguished. Service of sentence does not extinguish the civil liability. (Salgado vs. C.A., G.R. No. 89606, August 30, 1990) 3. Amnesty It is an act of the sovereign power granting oblivion or a general pardon for a past offense, and is rarely, if ever, exercised in favor of a single individual, and is usually exerted in behalf of certain classes of persons, who are subject to trial but have NOT yet been convicted. It completely extinguishes the penalty and its effect but civil liability is NOT extinguished. (Brown vs. Walker, 161 US 602) 4. Absolute Pardon Pardon is an act of grace proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed. (Reyes, The Revised Penal Code: Book One, 2017)

1. Death of the convict Death before or after final judgment – criminal liability is extinguished, because it is personal to the offender. Death before final judgment – pecuniary liabilities are extinguished. General Rule: Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as civil liability based solely on the offense committed. (People vs. Alison, G.R. No. L–30612, April 27, 1972)

Kinds of Pardon Absolute Pardon the total extinction of criminal liability of the individual to whom it is granted without any condition. It restores to the individual his civil and political rights and remits the penalty imposed for the particular offense of which he was convicted.

Conditional Pardon the exemption of an individual within certain limits or conditions from the punishment which the law inflicts for the offense he had committed resulting in the partial extinction of his criminal liability. (Id.)

(Id.)

Exception: if the claim for civil liability is predicated on a source of obligation other than delict, such as law, contracts, quasi-

Pardon vs. Amnesty PARDON Includes any crime and is exercised individually by the President. Exercised when the person is already convicted. Merely looks forward and relieves the offender from the consequences of an offense of which he has been convicted; it does not work for the restoration of the public rights to hold public office or the right of suffrage, UNLESS expressly restored by the terms of pardon. Private act of the President, must be pleaded and proved by the person pardoned. Does NOT extinguish the civil liability of the offender.

AMNESTY A blanket pardon to classes of persons or communities who may be guilty of political offenses. May be exercised even before trial or investigation. Looks backward and abolishes and puts into oblivion the offense itself; it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. Public act of which the courts should take judicial notice. Does NOT extinguish the civil liability of the offender.

(Campanilla, Criminal Law Reviewer: Volume I, 2019, p.440)

5. Prescription of the crime It is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time. (Art. 90, RPC) ARTICLE 90 PRESCRIPTION OF CRIME Definition: The forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain period of time. ● Based on the penalty prescribed by the RPC. ● In computing the period, first day is excluded, and last day included. General Rule: Prescription of the crime begins on the day the crime was committed. Exception: The crime was concealed, in which case, the prescription thereof would only commence from the time the offended party or

the government learns of the commission of the crime. Difference between Prescription of Crime and Prescription of Penalty PRESCRIPTION OF CRIME Forfeiture of the State to prosecute after a lapse of a certain time.

Question: When interrupted?

PRESCRIPTION OF PENALTY Forfeiture to execute the final sentence after the lapse of a certain time.

prescription

Answer: When proceedings are instituted against the guilty party, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. (Sec. 2, Act No. 3326) Prescription of crimes: a. 20 years

crimes punishable by death, reclusion perpetua and reclusion temporal b. 15 years crimes punishable by other afflictive penalty c. 10 years crimes punishable by correctional penalty d. 5 years crimes punishable by arresto mayor e. 1 year crimes of libel or other similar offenses f. 6 months oral defamation and slander by deed offenses; i. 6 months – grave slander ii. 2 months – simple slander g. 2 months light offenses h. Crimes punishable by fines i. 15 years – if it is afflictive ii. 10 years – if it is correctional iii. 2 years – if it is light 6. Prescription of the penalty It is the loss or forfeiture of the right of the Government to execute the final sentence after the lapse of a certain time.

Requisites: 1. That there be final judgment; and 2. That the period of time prescribed by law for its enforcement has elapsed. (Reyes, supra) 7. Marriage of the offended woman, as provided in Article 344 of this Code Marriage of the offender with the offended woman after the commission of any of the crimes of rape, seduction, abduction or acts of lasciviousness, as provided in Art. 344, must be contracted by the offender in good faith. Marriage contracted only to avoid criminal liability is devoid of legal effects. (People vs. Santiago, G.R. No. 27972, October 81, 1927) B. PARTIAL EXTINCTION OF CRIMINAL LIABILITY 1. Conditional Pardon Two Kinds of Pardon 1. Absolute Pardon

2. Conditional Pardon If delivered and accepted, it is a contract between the executive and the convict that the former will release the latter upon compliance with the condition. One usual condition is “not again violate any of the penal laws of the country.” Any person who has been granted conditional pardon shall incur the obligation of complying strictly with the conditions imposed therein. (Reyes, The Revised Penal Code: Book One, 2006, p.867)

Effects of Pardon of the President: a. A pardon shall not restore the right to hold public office or the right of suffrage. Exception: When any or both such rights is or are expressly restored by the terms of the pardon. b. It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an exception to this rule.

An act of grace, proceeding from the power entrusted with the execution of the laws. Exempts the individual from the penalty of the crime he has committed.

2. Commutation of Service

Effect of pardon on appointed public officer:

a. When the convict sentenced to death is over 70 years of age. b. When eight justices of the Supreme Court fail to reach a decision for the affirmance of death penalty.

a. Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. b. Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for a new appointment. (Monsanto vs. Factoran, G.R. No. 78239, February 9, 1989)

Effect of pardon by the offended party: A pardon of the offended party does not extinguish criminal action except as provided in Art. 344 of the RPC; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. (Article 23, RPC)

Specific cases where commutation provided for by the Code:

In either case, the degree of the penalty is reduced from death to reclusion perpetua. In commutation of sentence, consent of the offender is not necessary. The commutation of the original sentence for another of a different length and nature shall have the legal effect of substituting the latter in the place of the former. (Art. 96, RPC) 3. Allowance for Good Conduct (Art. 97) The good conduct of any offender qualified for credit for preventive imprisonment, or of any convicted prisoner in any penal institution, rehabilitation or detention center or any other

local jail shall entitle him to the following deductions from the period of his sentence: Years of Imprisonment 1. 2. 3. 4. 5.

During the first 2 years During the 3rd to 5th year During the following years until the 10th year (6th to 10th) During the 11th and successive years At any time during the period of imprisonment

Allowed Deduction (for each month of good behavior during detention) 20 days 23 days 25 days 30 days another deduction of 15 days (in addition to No. 1-4), for each month of study, teaching or mentoring service time rendered

(Art 97, RPC, as amended by R.A No. 10592)

An appeal by the accused shall not deprive him of entitlement to the above allowances for good conduct. Special Time Allowance for Loyalty (Art. 98) A deduction of one fifth (1/5) of the period of his sentence shall be granted to any prisoner who, having evaded his preventive imprisonment or the service of his sentence mentioned in Art. 158 of the RPC, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe. A deduction of two-fifths (2/5) shall be granted if the said prisoner chose to stay in the place of confinement notwithstanding the existence of calamity or catastrophe. Who grants allowances for good conduct: 1. Director of the Bureau of Corrections; 2. Chief of the Bureau of Jail Management and Penology; and 3. Warden of provincial, district, municipal, or city jail.

CIVIL LIABILITY IN CRIMINAL CASES

CIVIL LIABILITY OF A PERSON GUILTY OF FELONY Every person criminally liable for a felony is also civilly liable. (Art. 100, RPC) Civil liability ex–delicto means that every person criminally liable is also civilly liable, crime being one of the five sources of obligation under the Civil Code. However, if a person is acquitted from a criminal charge, it does not mean that he is civilly free also because quantum of proof required in criminal prosecution is beyond reasonable doubt whereas, in civil liability, it is merely preponderance of evidence. (People vs. Raga, G.R. No. 211166, June 5, 2017) Civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party, in the amount authorized by the prevailing judicial policy and apart from other proven actual damages, which itself is equivalent to actual or compensatory damages in civil law. (People vs. Jugueta, G.R. No 202124, April 5, 2016) Exceptions: 1. Victimless crimes; and 2. Flight to enemy country. (Estrada, Criminal Law Book One, 2011) Effect of acquittal – extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which civil liability might arise did not exist. (Sec. 1, Rule 111, 2000 Rules on Criminal Procedure) Effect of dismissal of case – the dismissal of the information or the criminal action does not affect the right of the offended party to institute or continue the civil action already instituted arising from the offense, because such dismissal or extinction of the penal action does not carry with it the extinction of the civil action. (Estrada, supra) Effect of death of the offender – if the offender dies prior to the institution of the action or prior to the finality of judgment, civil liability ex–delicto is extinguished. (De Guzman vs. People, G.R. No. 154579, October 8, 2003)

Question: What is the rule if the offender is acquitted, insofar as the civil liability is concerned? Answer: As a general rule, once the offender is acquitted, the civil liability is extinguished. Exceptions: 1. When the civil action is based on obligations not arising from the act complained of as felony; 2. Where the court states in its judgment that the case merely involves a civil obligation; 3. If the ground of the acquittal is that the guilt has not been proven beyond reasonable doubt. (Art. 29, NCC) 4. Acquittal is due to exempting circumstances in favor of an: o Imbecile or; o Insane person and; o A person under 15 years of age, or those over 15 but under 18, who has acted without discernment; o Those acting under the compulsion of an irresistible force or under the impulse of an uncontrollable fear of equal or greater injury. 5. When the court finds and states in its judgment that there is only civil responsibility; (Art. 101, RPC) and 6. When civil liability arises from other sources of obligations. (De Guzman vs. Alva, 51 O.G. 1311) 7. Where the civil liability is not derived or based on the criminal act of which the accused is acquitted. (Sapiera vs. CA, G.R. No. 128927, September 14, 1999) 8. In cases of independent civil actions. (Art. 31, 32, 33 and 34, NCC) People vs. Bayotas, G.R. No. 102007, September 2, 1994 (BAYOTAS DOCTRINE) ● Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. ● The claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of survives notwithstanding the death of accused, if the same may also be obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation

from which the civil liability may arise as a result of the same act or omission. ● Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Rules on Criminal Procedure, as amended. This separate civil action may be enforced either against the executor/ administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above. ● The private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription. RULES REGARDING CIVIL LIABILITY IN CERTAIN CASES Civil liability of persons exempts from criminal liability: 1. Persons who have legal authority, custody or

control of an imbecile or insane person or minor (under 9 or over 9 but below 15 years of age who acted without discernment) are primarily liable to pay the civil liability for acts committed by the latter if said persons are at fault or negligent. (Art. 101, Art. 12, RPC) NOTE: RA 9344 provides that a minor 15 years of age and below is exempt from criminal liability whether he acted with or without discernment. If there was no fault or negligence on their part, or if there was fault or negligence but are insolvent, the insane, imbecile or the minor shall be answerable with their own property not exempt from execution.

2. Civil liability of minor who acts with discernment devolve upon the parents. (PD 603)

3. In the case of state of necessity (Art. 11, par. 4), the ones benefited shall proportionately shoulder the civil liability. 4. In cases falling under subdivisions 5 and 6 of Art.12, the persons who used violence or caused fear shall be primarily and secondarily liable. If there be no such persons, the person doing the act shall be liable. (Art. 101, RPC) SUBSIDIARY LIABILITY OF INNKEEPERS, TAVERNKEEPERS, AND PROPRIETORS OF ESTABLISHMENTS In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. (Art. 102, RPC: Reyes, The Revised Penal Code: Book One, 2006, p.901) Elements: 1. That the innkeeper, tavernkeeper or proprietor of establishment or his employee committed a violation of municipal ordinance or some general or special police regulation; 2. That the crime is committed in such inn, tavern, or establishment; and 3. That the person criminally liable is insolvent. (Id.) SUBSIDIARY LIABILITY OF OTHER PERSONS The subsidiary liability established in Art. 102 shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. (Art. 103, RPC) Elements: 1. The employer, teacher, person, or corporation is engaged in any kind of industry; 2. Any of their servants, pupils, workmen, apprentices, or employees commits a felony while in the discharge of this duties; and 3. The said employee is insolvent and has not satisfied his civil liability. (Reyes, supra)

Subsidiary liability of the employer arises only after the conviction of the employee in the criminal action. (Estrada, supra) WHAT CIVIL LIABILITY INCLUDES WHAT IS INCLUDED IN CIVIL LIABILITY 1. Restitution; 2. Reparation of damaged caused; 3. Indemnification for consequential damages. (Art. 104, RPC) Restitution Restitution of the thing itself must be made whenever possible even when found in the possession of a third person except when acquired by such person in any manner under the requirements which, by law, bar an action for recovery. (Reyes, supra) Reparation of Damages Reparation will be ordered by the court if Restitution is not possible. The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party. (Id.) If there is no evidence as to the value of the thing unrecovered, reparation cannot be made. (Francisco vs. People, G.R. No. 146584, July 12, 2004) Example: An attacked B with a piece of wood and hit him several times. B was injured and his watch valued at Php 6,000 was destroyed. In addition to his criminal liability if found guilty, a shall also pay for the destroyed watch. This is reparation of the damage caused. In cases of physical injuries, the accused shall pay the hospital bills and doctor’s fees to the offended party. Reparation can be required only from the accused. (Estrada, Criminal Law Book One, 2011 in relation to Art. 106 of RPC) Indemnification for Damages This includes not only those caused by the injured party, but also, those suffered by his family or by

a third person by reason of the crime. (Reyes, supra)

income would thus be Php 688,080.00. (People vs. Bangcado, G.R. No. 132330, November 28, 2000)

Reparation of and indemnification for damages may be obtained only from the accused and his heirs. (Id.)

EXTINCTION OF CIVIL LIABILITY

The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured. (Id.) In a crime punished by perpetual or temporary disqualification, the court is empowered to order reinstatement because had he been found guilty, he would, aside from imprisonment, suffer the additional penalty of special perpetual disqualification. (People vs. Consigna, G.R. No. L18087, August 31,1965)

Civil liability is extinguished: 1. By payment or performance; 2. By condonation or remission of the debt; 3. By confusion or merger of the rights of the creditor or debtor; 4. By compensation; 5. By novation; and 6. Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription. (Art. 112, RPC; Art. 1231, NCC)

LE is equivalent to 2/3 the difference of 80 and the age of the deceased.

NOTE: Civil liability in criminal cases is not extinguished by the loss of the thing due because reparation will be ordered by the court in such cases. Except as provided in Article 112, the offender shall continue to be obliged to satisfy the civil liability arising from the crime committed by him. (Estrada, Criminal Law Book One, 2011)

LE = 2/3 x [80 – age at the time of death]

OBLIGATION TO SATISFY CIVIL LIABILITY

NEC is the remainder if the gross annual income (GAI) is reduced by the necessary living expenses (NLE) which is 50% of the GAI. NLE = 50% x GAI NEC = LE x NLE

The offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact:

Damages for loss of earning capacity, Life expectancy (LE) and Net Earning Capacity (NEC)

Example: Where life expectancy = 2/3 x (80 — age of deceased [37 years]) X = 2/3 x (80 - 37) x [(P4,000.00 x 12) (P4,000.00 x 12)50%]

x = 2/3 x 43 x [P48,000.00 - P24,000.00] x = [2/3 x 43] x P24,000.00 x = P28.67 x P24,000.00 x = P 688,080.00 Since Leandro Adawan was thirty-seven (37) years old at the time of his death, his life expectancy was 28.67 years. Considering that his average monthly income was Php4,000.00, his gross annual income would be Php48,000.00 using the above formula, the victim’s unearned

1. That he has served his sentence 2. That he has not been required to serve the same by reason of: a. Amnesty; b. Pardon; c. Commutation of sentence; and d. Any other reason. (Art. 113, RPC) Even if the criminal liability of the offender is totally or partially extinguished by reason of amnesty, pardon, commutation of service of sentence or any other reason, he is still civilly liable. (Estrada, supra) The grant of probation to the offender does not extinguish civil liability. Thus, where the accused pleaded guilty and applied for probation, that fact does not prevent the trial court from making pronouncement on his civil liability. (Id.)

II. CRIMES UNDER THE REVISED PENAL CODE A. CRIMES AGAINST NATIONAL SECURITY AND LAW OF NATIONS

(ARTICLES 114-123) ARTICLE 114 TREASON

Treason – the violation by a subject of his allegiance to his sovereign or to the supreme authority of the State. (US vs. Abad, G.R. No. 976, October 22, 1902) Nature: Treason is a continuing crime. Even if the offender commits several acts of the crime he can only be charged with one count of Treason. All such acts constitute a single offense. (Reyes, Revised Penal Code: Book Two, 2012, p.12)

NOTE: Treason cannot be committed in time of peace. (Concurring Opinion of Justice Perfecto, Laurel vs. Misa, G.R. No. 976, October 22, 1902) Two Ways of Committing Treason: 1. Levying War – requires: a. that there be an actual assembling of men; and b. for the purpose of executing a treasonable design by force. NOTES: ●

●

Elements: (FA-WWE) 1. Offender is a Filipino citizen or an Alien residing in the Philippines; 2. There is a War in which the Philippines is involved; and 3. The offender either: a. Levies War against the Government (Philippines); or b. Adheres to the Enemies, giving them aid or comfort within the Philippines or elsewhere (intent to betray). Allegiance – is meant the obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for the protection they receive. (Reyes, The Revised Penal Code: Book Two, 2017, p.3) Permanent Allegiance

Allegiance

PERMANENT / ABSOLUTE The obligation of fidelity and obedience which a citizen or subject owes to his government or sovereign.

vs.

●

Penal Code Book Two, 2011, pp. 6)

2. Adherence to the Enemies, Giving Them Aid or Comfort – an act which strengthens or tends to strengthen the enemy, and weakens or tends to weaken the power of the traitor’s country, in the conduct of war between them. (Cramer vs. US, 65 Sup. Ct. 918) The expression includes furnishing the enemy with arms, troops, supplies, information or means of transportation. (Reyes, The Revised Penal Code: Book Two, 2017, p.6) NOTES: ●

Temporary

TEMPORARY The obligation of fidelity and obedience which a resident alien owes to our government. (Laurel

vs. Misa, G.R. No. 976, October 22, 1902)

Actual arm encounter between the government forces and traitors are not required. (Campanilla, Criminal Law, 2019, p. 2) The war must be directed against the government with the intent to overthrow it and not merely to resist a particular statute or to repel a particular officer. (3 Wharton’s Criminal Law, 12th Ed.) The levying of war must be in collaboration with a foreign enemy. (Reyes, The Revised

●

Commandeering women to satisfy the lust of the enemies is not treason. Enemy soldiers can fight in a war with or without sex. (People vs. Perez, G.R. No. L-856, April 18, 1949) Emotional or intellectual attachment or sympathy to the enemy, without giving the enemy aid or comfort, is not treason. (People vs. Roble, G.R. No. L-433, March 2, 1949)

Two Ways of Proving Treason: a) Two–witness rule – Testimony of two witnesses, at least, to the same overt act. It is sufficient that the witnesses are uniform in their testimony on the overt act. It is not

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necessary that there be corroboration between them. (People vs. Concepcion, G.R. No. L–1553, October 25, 1949) NOTES: ●

●

If the overt act is separable, two witness to must also testify to each part of the overt act for conviction. (People vs. Adrriano, G.R. No. L4-77, June 30, 1947) Adherence to the enemy need not be proved by two witnesses. What is designed in the mind of an accused never is susceptible of proof by direct testimony. (Reyes, The Revised Penal Code: Book Two, 2017, p. 13) Adherence may be proved: (1) by one witness, (2) from the nature of the act itself, or (3) from the circumstances surrounding the act. (Cramer vs. U.S., supra, People vs. Canibas, G.R. No. L-2193, February 1, 1950)

b) Confession of guilt by the accused in open court. The confession in open court, upon which a defendant may be convicted of treason is a confession of guilt. The section cannot be extended so as to include admissions of fact, from which his guilt may be inferred, made by the defendant in giving his testimony after a plea of not guilty. (U.S. vs. Magtibay, G.R. No. 1317. November 23, 1903) Defenses Allowed: a) b)

Duress and fear of immediate death; (People vs. Bagalawis, G.R. No. L–262, March 29, 1947) and Obedience to a de facto government.

Defenses Not Allowed: a) b) c)

Suspended allegiance; Change in sovereignty; and Loss of citizenship by joining the army of the enemy. (People vs. Manayao, G.R. No. L–322, July 28, 1947)

Circumstances Inherent in Treason: 1. 2. 3.

Evident premeditation Superior Strength Treachery

Aggravating Circumstances in Treason: 1. 2. 3. 4.

Cruelty Ignominy Gravity of separate distinct acts of treason Amount or degree of aid (Reyes, The Revised Penal Code: Book Two, 2017, p. 16)

ARTICLE 115 CONSPIRACY AND PROPOSAL TO COMMIT TREASON Conspiracy to Commit Treason – is committed when in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. (Arts. 8 and 114) Elements: (WAD) 1. There is a War in which the Philippines is involved; 2. At least two persons come to an Agreement to – a. levy war against the government; or b. adhere to the enemies, giving them aid or comfort; and 3. They Decide to commit it. Proposal to Commit Treason – is committed when in time of war a person who has decided to levy war against the Government or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person or persons. (Arts. 8 and 114) Elements: (PWD) 1. There is a War in which the Philippines is involved; 2. At least one person Decides to – a. levy war against the government; or b. adhere to the enemies, giving them aid or comfort; 3. He Proposes its execution to some other persons. NOTES:

● As a general rule, conspiracy and proposal

to commit a felony is not punishable (Art. 8). Art. 115 is an exception as it specifically penalizes conspiracy and proposal to commit treason. The reason is that in treason the

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very existence of the state is endangered. (Reyes, The Revised Penal Code: Book Two, 2017, p.19) ●

●

Two-witness rule is not applicable since the conspiracy or proposal to commit treason is a separate and distinct offense from the crime of treason. (U.S. vs. Bautista, G.R. No. L-2189, November 3, 1906) Mere proposal even without acceptance is punishable. If the other accepts, it is already conspiracy. Mere agreement without a decision to commit the crime is not conspiracy to commit treason. Doctrine of Absorption - If actual acts of treason are committed after the conspiracy or proposal, the crime committed will be treason, and the conspiracy or proposal is considered as a means in the commission thereof.

Conspiracy to overthrow the government is not Proposal to Commit Treason when: 1. The person who proposes to commit treason is not decided to commit the felony; 2. There is no decided concrete proposal; 3. It is not the execution of treason that is proposed. ARTICLE 116 MISPRISION OF TREASON Misprision of treason - a Filipino citizen obtains knowledge of conspiracy to commit treason against the government but he conceals or does not disclose and make known such matters to proper authorities. Nature: Misprision of treason is a felony by omission. It is committed by the failure to do an act required by law. However, it is committed by means of dolo or intent. Note the words “he conceals or does not disclose and make known his knowledge” x x x as soon as possible. The offender shall be punished as an accessory to the crime of treason. Elements: (KFC) 1. Offender is a Filipino citizen; 2. He has Knowledge of any conspiracy to commit treason against the government; and

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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. NOTES: ● It does not apply when treason is already committed and the accused does not report its commission. It speaks of “knowledge of any conspiracy” against the government, not knowledge of treason actually committed. (Reyes, The Revised Penal Code: Book Two, 2017, p.20) ● The report can be made to any person in authority having equivalent jurisdiction a public authority is a person in authority. (Art. 152) ● A priest who heard the confession of a person who conspired with others to commit treason shall not be liable under Art. 116. ● The penalty imposed is that of an accessory to the crime of treason but the offender is a principal in the crime of misprision of treason. Misprision of treason is a separate and distinct offense from the crime of treason. (Ibid.) ● Art. 116 is an exception to the rule that mere silence does not make a person criminally liable. (Reyes, The Revised Penal Code: Book Two, 2017, p.21) ● When there is conspiracy to overthrow the government, the crime committed is conspiracy to commit rebellion. This is so because there is no war. If a person who knows the conspiracy to commit rebellion and does not report it to the authorities, he is not liable for misprision of rebellion because there is no such crime. ● If Treason had been committed and the person having knowledge of such commission concealed and did not disclose such knowledge to the authorities, the crime is not committed. In other words, failure to report knowledge of Treason already committed is not a crime. ● Relationship is not exempting. Even if the conspirators in treason are parents, children, or relatives, the one comes to know about the conspiracy is still mandated by law to report it. Love of country is superior to blood relationship. This exempting circumstance under Art. 20 of the RPC does not apply to Misprision of Treason because the law applies

only to accessories of the crime. The accused in Misprision of Treason are considered principals and not accessories. ARTICLE 117 ESPIONAGE Espionage – the offense of gathering transmitting, or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Republic of the Philippines or to the advantage of any foreign nation. (Reyes, The Revised Penal Code: Book Two, 2006, p.22) Nature: Espionage is a formal crime. There is no crime such as attempted espionage or frustrated espionage. Two ways of committing espionage: 1.

By any person who, without authority therefor, shall enter a warship, fort or naval or military establishment or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. Elements: (WON) a. The offender enters a Warship, fort, or naval or military establishment or reservation; b. He has No authority therefor; and c. The purpose of entry is to Obtain information, plans, photographs, or other data of a confidential nature relative to the defense of Philippines.

By a public officer, who shall disclose to a representative of a foreign nation the contents of articles, data or information of a confidential nature relative to the defense of the Philippines, which is in his possession by reason of his office. Elements: (P2D) a. The offender is a Public officer; b. He has in his Possession the articles, data or information referred to Art. 117(1), by reason of the public office he holds; and c. He Discloses their contents to a representative of a foreign nation.

NOTES: ● Espionage can be committed in times of war and in times of peace as Sec. 2 of Act No. 616, which punishes Espionage and other offenses against the National Security provides: “If committed in time of war, the penalty is death (now RP to death) or imprisonment for more than 30 years.” ● Espionage in the first mode is consummated by entering any of the enumerated establishment as long as the purpose of the offender is to obtain any of those materials which are vital to the defense of the country. ● It is not necessary that information have been obtained. It is sufficient that he has the intention to obtain information when he entered a warship, fort, or naval or military establishment. ● The concept of espionage may be embraced within the legal contemplation of treason. Disclosing confidential military information by a public officer to a representative of a foreign nation is espionage. But disclosing such information in adherence to an enemy in times of war constitutes treason and not espionage. (Campanilla, Criminal Law, 2019, pp. 8-9) Other acts of espionage under CA 616 (An act to punish espionage and other offenses against national security) 1. Unlawfully obtaining or permitting to be obtained information affecting national defense 2. Unlawful disclosing of information affecting national defense 3. Disloyal acts or words in times of peace 4. Disloyal acts or words in times of war 5. Conspiracy to violate preceding the above acts 6. Harboring or concealing violators of the law If the offender is not the custodian of the documents mentioned in the second mode of Espionage, the crime to be charged would be Violation under CA 616 if he discloses information relative to the defense of the country. If the information disclosed to a representative of a foreign nation does not relate to the defense of the Philippines and the offender is the custodian thereof, he is liable for Infidelity in the Custody of Public Records. (Chapter Five, Section Two, RPC)

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Espionage vs. Treason Espionage Treason (Art. 117) (Art. 114) As to citizenship Both crimes are not conditioned by the citizenship of the offender. As to time of commission May be committed both in Committed only in time of time of peace and in war. war. As to manner of commission May be committed in Committed in two ways: many ways. (1) levying war and (2) adhering to enemies, giving them aid or comfort.

(Reyes, The Revised Penal Code: Book Two, 2017, p.26-27)

ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Inciting to war or giving motives for reprisals – is committed by any public officer or employee or any private individual who by unlawful or unauthorized acts, provokes or gives occasion for a war involving or liable to involve the Philippine or exposes Filipino citizens to reprisals on their persons of property. Elements: (PPE) 1. That the offender Performs unlawful or unauthorized acts; 2. That such acts: a. Provoke or give occasion for a war involving or liable to invoke the Philippines; or b. Expose Filipino citizens to reprisals on their persons or property. NOTES: ●

● ●

Intention of offender is immaterial. The law considers the effects produced by the acts of the accused. Such acts might disturb the friendly relation that we have with a foreign country, and they are penalized even if they constitute a mere imprudence. (Reyes, The Revised Penal Code: Book Two, 2017, p.28) Crime is committed in times of peace. (Ibid.) In inciting to war, the offender can be any person. If the offender is a public officer, the penalty shall be higher. (Art. 118)

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●

Reprisals are not limited to military action, it could be economic reprisals, or denial of entry into their country. ARTICLE 119 VIOLATION OF NEUTRALITY

Elements: (NRV) 1. That there is a war in which Philippines is Not involved; 2. That there is a Regulation issued by competent authority for the purpose of enforcing neutrality; and 3. That the offender Violates such regulation. NOTES: ●

●

Neutrality is a state where a nation or power

takes no part in a contest of arms going on between others. (Reyes, The Revised Penal Code: Book Two, 2017, p.29) There must be a regulation issued by a competent authority (President or the Chief of Staff of the AFP) for the enforcement of neutrality. It is the violation of such regulation which constitutes the crime. (Ibid.) ARTICLE 120 CORRESPONDENCE WITH HOSTILE COUNTRY

Elements: (WC-CPU) 1. That it is made in time of War in which the Philippines is involved; 2. That the offender makes Correspondence with an enemy country or territory occupied by enemy troops; and 3. That the correspondence is either: a. Prohibited by the government; b. Carried on in Ciphers or conventional signs; or c. Containing notice or information which might be Useful to the enemy. Correspondence – a communication by means of letters, or it may refer to the letters which pass between those who have friendly or business relations. (Reyes, The Revised Penal Code: Book Two, 2017, p.30)

Circumstances qualifying the offense - The following must concur: 1. That the notice or information might be useful to the enemy. 2. That the offender intended to aid the enemy. (Ibid.) NOTES: ●

●

If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason, hence, the penalty is the same as that of treason. Even if correspondence contains innocent matters, if the correspondence has been prohibited by the government, it is punishable. Reason: Because of the possibility that some information useful to the enemy might be revealed unwittingly. (Reyes, The Revised Penal Code: Book Two, 2017, p.30) Prohibition by the Government is not necessary if: (a) The correspondence was carried on in ciphers or (2) The correspondence contains notice or information which might be useful to the enemy. (Ibid.) ARTICLE 121 FLIGHT TO ENEMY’S COUNTRY

Nature: This is a formal crime. There is no attempted nor frustrated stage. The crime is consummated by mere attempt. Elements: (WAAP) 1. There is War in which the Philippines is involved; 2. The offender owes Allegiance to the government; 3. The offender Attempts to flee or go to an enemy country; and 4. Going to the enemy country is Prohibited by competent authority. NOTES: ● An alien resident may be guilty, under this provision. Hence, allegiance under this article may either be permanent or temporary. (Reyes, The Revised Penal Code: Book Two, 2017, p.31)

●

Mere attempt, regardless of the intent or reason, to go to enemy country consummates the crime. (Ibid.) ARTICLE 122 PIRACY

Piracy – it is the crime committed by any person who, on the high seas or in Philippine waters, shall attack or seize a vessel or, not being a. Member of its complement nor a passenger, shall seize the whole or part o the cargo of the said vessel, its equipment, or personal belongings of its complement or passengers. Under P.D. 532, piracy is an attack on a vessel on the high seas by any person including its complement or passengers for the same purposes. Two Ways/Modes of Committing Piracy: 1. By attacking or seizing a vessel on the high seas or in Philippine waters; and 2. By seizing in the vessel while on the high seas or in the Philippine waters the whole or part of its cargo, its equipment, or personal belongings or its complement or passengers. Three kinds of Piracy: 1. Piracy in the high or open seas (RPC); 2. Piracy in the Philippine waters (P.D. No. 532 as amended by R.A. No. 7659, the Heinous Crime Law); 3. Air Piracy (under R.A. No. 6235) Definition of High Seas It refers to the body of water outside of the territorial waters of the Philippines, even if such is within the territorial waters of another country. (Reyes, The Revised Penal Code: Book Two, 2006, p.33) Complement – the full number of officers and crew needed to man a ship. Elements of piracy: (VANS) 1. Vessel is on high seas or Philippine waters; 2. The offenders are Not members of its complement or passengers of the vessel; 3. The offender’s either

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a. Attack or seize the vessel; or b. Seize the whole or part of the cargo, or its equipment, or personal belongings of the crew or passengers.

Even passengers and Can only be committed by members of the outsiders or strangers, not complement can member of the complement commit it. or passengers. Qualifying circumstances (Qualified Piracy)

Mutiny - is the unlawful resistance to a superior officer, or the raising of commotions and disturbances on board a ship against the authority of its commander. (Bouvier’s Law Dictionary, Vol. 2, p. 2283).

NOTE: There is a crime called qualified mutiny. Art. 123 specifies that it covers “any of the crimes referred to in the preceding article.” Although the title of the article specifies “qualified piracy”, since its text refers to both piracy and mutiny, the text should prevail.

Piracy vs. Mutiny Piracy under RPC

Either in Philippine waters or on the high seas. As to the offenders The person who attack a Committed by members vessel or seize its cargo of the crew or are strangers to the passengers. vessels. As to intention gain

is The offenders may only intend to ignore the ship’s officers or they may be prompted by a desire to commit plunder.

(Reyes, The Revised Penal Code: Book Two, 2006, p.34)

Piracy under PD 532 vs. Piracy under RPC Piracy under P.D. 532

Piracy under RPC

As to place of commission Punishes piracy Punishes piracy committed committed within aboard a vessel either in the Philippine waters only. high seas or Philippine waters. As to the person of offenders

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1. 2. 3.

Seizing a vessel by boarding or firing upon it; Abandoning victims without means of saving themselves; Accompanied by murder, homicide, physical injuries, or rape.

Abettors

Mutiny

As to place of commission

Intent to essential.

Seizing by firing upon or boarding a vessel; Abandoning the victims without means of saving themselves; Rape, murder, homicide, physical injuries or other crimes as a result or on the occasion of piracy.

Accomplices

Accessories

(Reyes, The Revised Penal Code: Book Two, 2017, p.36-37)

Note: The Anti-Heinous Crime Law widened the coverage of Art. 122 to include the offenses committed in “Philippine waters.”. (Sec. 3, R.A.

No. 7659)

Acts punished Hijacking Law:

under

6235

Anti-

1. Compelling the pilot of an aircraft of Philippine registry to change course or destination or otherwise usurping or seizing control while it is in flight. The aircraft is “in flight” when all the exterior doors thereof are closed following the embarkation until opened for disembarkation (although it has not moved away). 2. Compelling an aircraft of foreign registry to land in any part of Philippine territory or usurping or seizing control of such, while it is within Philippine territory. (There is no requirement that it be in flight.) In usurping control, it is not required that the aircraft be a public utility.

3. Carrying or loading on board a passenger aircraft operating as a public utility in the Philippines, substances which are corrosive, flammable, explosive, or poisonous. Here, mere carrying or loading of explosive, corrosive, etc., brings about criminal liability. 4. Shipping or loading such substances (referred in No. 3 above) on a cargo aircraft operating as a public utility in the Philippines in a manner not in accordance with the rules and regulations issued by the Air Transportation Office (ATO). What is penalized here is carrying substances mentioned in No. 3 above not in accordance with the rules and regulations issued by ATO.

(See further discussion under Art. 294, p. 201) ARTICLE 123 QUALIFIED PIRACY Qualifying Circumstances: (BAMPiHRa) 1. Whenever the offenders have seized a vessel by Boarding or firing upon the same; 2. Whenever the pirates have Abandoned their victims without means of saving themselves; or 3. Whenever the crime is accompanied by Murder, Homicide, Physical injuries, or Rape. NOTES: ●

Qualifying Circumstances

(applicable only on Crimes Mentioned in No. 1 and 2 under Anti Hijacking Law.) 1. Firing upon the pilot, crew, or passenger; 2. Exploding or attempting to explode any bomb or explosive to destroy the aircraft; or 3. The crime is accompanied by murder, homicide, serious physical injuries, or rape. ● If there is lack of evidence of conspiracy, the liability is that of an accomplice and not as principal (People vs. Tolentino, G. R. No. L-29419. August 31, 1971). Any doubt as to the participation of an individual in the commission of crime is always resolved in favor of lesser responsibility. (People vs. Corbes, G.R.

No. 113470, March 26, 1997).

Abetting Piracy (PD 532) – it is the crime committed by any person who: 1. Gives pirates information about the movement of peace officers of the government; 2. Acquires or receives property taken by the pirates or devices any benefit from it; 3. Directly or indirectly abets the commission thereof. Nature: Lack of knowledge that the item came from piracy is a defense.

●

Any circumstances mentioned under Art. 123 will give rise to the crime Qualified Piracy (take note of the word “or”). It is qualified piracy when the crime was accompanied by rape and the offenders abandoned their victims without means of saving themselves. The crime falls under the Art. 153(1) (now Art. 122) of the RPC in relation to Art. 154 (now Art. 123). There are present at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent means of saving themselves. (People vs. Lol-lo, G.R. No. 17958, February 27, 1922)

Qualified piracy is a special complex crime regardless of the number of victims. The number of persons killed on the occasion of piracy is not material. P.D. No. 532 considers qualified piracy, i.e. rape, murder or homicide is committed as a result or on the occasion of piracy, as a special complex crime punishable by death regardless of the number of victims. (People vs. Siyoh, G.R. No. L-57292 February 18, 1986) B. CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE (ARTICLES 124-133) Offender: the public officers except as to the last crime under Art. 133 – Offending Religious Feelings.

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Classes of Arbitrary Detention:

committing, or is attempting to commit an offense;  When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and  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 confine to another. (Rule 113, Sec. 5, ROC)

1. Arbitrary detention by detaining a person with legal ground. (Art. 124) 2. Delay in the delivery of detained persons to the proper judicial authorities. (Art. 125) 3. Delaying release. (Art. 126) NOTE: All classes have the same penalties, as provided in Art. 124. ARTICLE 124 ARBITRARY DETENTION Elements: (PWD) 1. Offender is a Public officer or employee; 2. He Detains a person; and 3. Detention is Without legal grounds.



The law does not fix any minimum period of detention. Arbitrary detention may be less than half an hour. (U.S. vs. Braganza, G.R. No. L-3971, February 3, 1908) or one hour. (U.S. vs. Agravante, G.R. No. L-3947, January 28, 1908)



The crime of arbitrary detention can be committed through imprudence. The offender is guilty of arbitrary detention through simple imprudence provided for and punished under Art. 365(2), of the RPC, in connection with Article 124(1), of the same Code. (People vs. Misa, C.A., 36 O.G. 3496)

Legal Grounds for Detention: 1. Commission of a crime 2. Violent insanity 3. Any other ailment requiring the compulsory confinement of the patient in a hospital. Detention – the actual confinement of a person in an enclosure or in any manner detaining and depriving him of his liberty. (People vs. Flores, G.R. No. 116488, May 31, 2001) NOTES: 

In arbitrary detention, the public officer must arrest a criminal suspect in pursuit of his authority to make arrest. The element of in pursuit of his duty to arrest is present if the purpose of the arrest is:   



to deliver the suspect to judicial authority; to conduct criminal investigation; or to determine if he committed the crime. (Campanilla, Criminal Law Reviewer vol 2, 2018, pp. 16-17)

Arrest without warrant is the usual cause of arbitrary detention. However, arrest without warrant is lawful:  When in his presence, the person to be arrested has committed, is actually

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Arbitrary detention vs. Kidnapping and Illegal detention Arbitrary detention (Art. 124)

Kidnapping and Illegal detention (Art. 267/268) As to classification Crime against the Crime against personal fundamental law of the liberty. state. As to offender Offender must be a public Offender must be a officer vested with private person. authority to arrest and detain a person. Note: Public officers who are not vested with Note: Private individuals authority to detain or who conspire with public order the detention of officers can be held liable persons accused of a as principals in the crime crime or exceed their of arbitrary detention. authority may be liable (People vs. Camerino, for illegal detention CA-G.R. No. 14207-R, because they are acting December 14, 1956) in their private capacity.

Arbitrary detention vs. Unlawful arrest Arbitrary detention (Art. 124)

Unlawful arrest (Art. 269)

As to classification Crime against the Crime against fundamental law of the liberty. state.

personal

As to offender The offender must be a public officer vested with authority to arrest and detain a person. (Reyes,

The offender may be either a private individual or public officer without authority to arrest and The Revised Penal Code: detain a person or who did Book Two, 2017, p.613) not act in his official capacity. (Reyes, The

Revised Penal Code: Book Two, 2017, p.613)

As to manner of commission Detains a person without Offender arrests or detains lawful cause. another person without reasonable grounds for the purpose of delivering him to the proper authorities.

ARTICLE 125 DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES Nature: This is a felony by omission. It is committed by the failure to perform a duty required by law. Elements: (PDF) 1. Offender is a Public officer or employee; 2. He Detained a person for some legal ground; and 3. He Fails to deliver such person to the proper judicial authorities within: a. twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; b. eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; or c. thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. NOTES: ●

If the offender is a private person, the crime is illegal detention. (Art. 267 or Art. 268) The periods of time in Art. 125 were applied to the arrests made by a private person. (People vs. Sali, 50 O.G. 5676)

●

Delivery to Proper Authorities means the filling of the correct information with the proper court or constructive delivery; does not consist in a physical delivery but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge. (Sayo vs. Chief of Police of Manila, G.R. No. L–2128, May 12, 1948)

●

Proper Judicial Authority includes the courts of justice or judges vested with judicial power to order temporary detention or confinement of a person charged with having committed a public offense, that is, the Supreme Court and other lower courts established by law. (Agbay vs. Deputy Ombudsman for the Military, G.R. No. 134503, July 2, 1999)

Arbitrary detention vs. Delay in Delivery Arbitrary detention (Art. 124)

Delay in Delivery (Art. 125)

As to when detention becomes illegal The detention is illegal The detention is legal in from the beginning. the beginning but the illegality of the detention starts from the expiration of any of the periods of time specified in Art. 125, without the person detained having been delivered to the proper judicial authority.

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●

City Fiscal is not a judicial entity or authority because he cannot issue a warrant of arrest. (Sayo vs. Chief of Police of Manila, G.R. No. L2128, May 12, 1948)

NOTE: Wardens and jailers are the persons most likely to violate this provision.

To be held liable for delay in the delivery of detained persons to the proper judicial authorities under Art. 125, the offended party must be detained for some legal ground. If the police officer detained him without legal grounds, the crime committed is arbitrary detention under Art. 124. (Campanilla, Criminal Law Reviewer Vol. 2, 2018, pp. 18)

1. Offender is a Public officer or employee; 2. There is a Judicial or executive order for the release of a prisoner or detention prisoner; or that there is a proceeding upon a petition for the liberation of such person; and 3. The offender without good reason Delays either: a. Service of the notice of such order to the prisoner; or b. Performance of such judicial or executive order for the release of a prisoner; or c. Proceedings upon a petition for the release of such person.

An election day or a special holiday should not be included in the computation of the period prescribed by Art. 125 for the filing of complaint or information in courts in cases of warrantless arrests, it being a “no-office day”. (Soria vs. Desierto, G.R. Nos. 153524-25, January 31, 2005) ●

●

A person arrested with legal ground has the right not to be detained beyond the period stated in Art. 125, however, such right can be waived under RA 7438 (Custodial Investigation Law). If the waiver is valid, apprehending officer cannot be held liable even though the person arrested has been detained beyond the period stated in Art. 125. If the waiver is invalid, apprehending officer may be held liable unless he honestly believed that the waiver is valid. Art. 125 applies only to a valid warrantless arrest. If the arrest is made with a warrant of arrest, the person arrested can be detained indefinitely until his case is decided by the court or he posts bail for his temporary release. (Reyes, The Revised Penal Code: Book Two, 2017, p.55) ARTICLE 126 DELAYING RELEASE

Punishable Acts: (PSP) 1. By delaying the Performance of a judicial or executive order for the release of a prisoner; 2. By unduly delaying the Service of the notice of such order to said prisoner; or 3. By unduly delaying the Proceedings upon any petition for the liberation of such person.

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Elements: (PJD-SPP)

ARTICLE 127 EXPULSION Punishable Acts: 1. By expelling a person from the Philippines; or 2. By compelling a person to change his residence. Elements: (CPEN) 1. Offender is a Public officer or employee; 2. He Expels any person from the Philippines, or Compels a person to change his residence; and 3. He is Not authorized to do so by law. Note: Only the court by a final judgment can order a person to change his residence. This can be illustrated by: 1. 2. 3. 4.

ejectment proceedings; expropriation proceedings; penalty of destierro; case of conviction for the commission of a crime involving deprivation of liberty; 5. grant of probation under the Probation Law of 1976 ; 6. grant of temporary or permanent protection where change of residence is one of the conditions imposed by the court; or 7. case of release on parole of a prisoner under the Indeterminate Sentence Law where one of the conditions for his release is change of residence.

Hence, the Mayor and the Chief of Police of Manila cannot force the prostitutes residing in that City to go and live in Davao against their will, there being no law that authorizes them to do so. (Villavicencio, et al. vs. Lukban, G.R. No. L-14639, March 25, 1919) Expulsion vs. Grave Coercion Expulsion (Art. 127)

Grave Coercion (Art. 286)

When the owner of the domicile did not stop the officer, he admitted to enter and thereafter, starts to search. If he stops the public officer and the latter continues to search, there is violation of domicile. Common elements of the punishable acts: 1. Offender is a public officer or employee; and 2. He is not authorized by judicial order.

As to classification Crime against the Crime against fundamental law of the security. state.

Implied grant of permission to enter (consented search)

personal

As to offender

NOTES: ●

"Not being authorized by judicial order" – when a public officer or employee is not armed with a search warrant duly issued by the court. (Reyes, The Revised Penal Code: Book Two, 2017, p. 65)

●

In the first mode, lack of consent would not suffice as the law requires that the offender’s entry must be over the owner’s objection. To constitute violation of domicile, the entry by the public officer must be against the will of the owner of the dwelling, which presupposes opposition or prohibition by said owner, whether express or implied. Thus, if public officer’s entry into the dwelling is not only made without previous consent of the owner, he is not liable for violation of domicile. (People vs. Sane, CA 40 OG Supp 5, 113)

The offender is a public The offender is a private officer or employee. person.

ARTICLE 128 VIOLATION OF DOMICILE Punishable Acts: (SER) 1. By Entering any dwelling against the will of the owner thereof; 2. By Searching papers or other effects found therein without the previous consent of such owner; or 3. By Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same. Meaning of entry against the will – when the offender ignores the prohibition of the owner which may be express or implied as when the door is closed even though not locked. When a person who admitted the public officer is one with sufficient discretion, the right of privacy is waived; hence, the prohibition thereafter made can no longer constitute Violation of Domicile; Permission once given cannot be recalled as to constitute violation of the article. When he is asked to leave and refuses to leave, it is unjust vexation.

In the second mode, mere lack of consent is sufficient. When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. (People vs. Malasugui, G.R. No. L-44335, July 30, 1936) In the third mode, what is punished is the refusal to leave when required to do so – not the entrance into the dwelling. (Reyes, The Revised Penal Code: Book Two, 2017, p.65)

111

●

To be held liable for violation of domicile, public officer must be acting in his official capacity. (US vs. Macaspac, G.R. No. 3878, November 16, 1907) If the public officer is one whose function does not include the duty to effect search and seizure, the crime is trespass to dwelling.

Instances where search is valid even without a warrant: There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would be inadmissible as evidence. 1. When the search was made incidental to a valid arrest; 2. Where the search was made on a moving vehicle or vessel such that the exigency of the situation prevents the searching officer from securing a search warrant; and 3. When the article seized is within the plain view of the officer making a search therefore.

include to effect search and seizure.

Violation of Domicile vs. Grave Coercion/ Unjust Vexation Violation of Domicile (Art. 128)

Grave Coercion (Art. 286)/Unjust Vexation (Art. 287)

As to classification Crime against the Crime against fundamental law of the security. state.

personal

As to place of commission A public officer searched papers or other effects found inside any dwelling without the previous consent of the owner.

A public officer searched a person “outside his dwelling” without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is either: (a) grave coercion if violence or intimidation is used; or (b) unjust vexation if there is no violence or intimidation.

Circumstances qualifying the offense: 1. Offense is committed at nighttime; or 2. Any papers or effects not constituting evidence are not returned immediately after the search made by the offender. (Reyes, The Revised Penal Code: Book Two, 2017, p.66) Violation of Domicile vs. Trespass to Dwelling Violation of Domicile (Art. 128)

Trespass to Dwelling (Art. 280)

As to classification Crime against the Crime against fundamental law of the security. state.

personal

As to offender The offender is a public The offender is a private officer or employee. person or a public officer whose function does not

112

ARTICLE 129 SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Punishable Act: 1. By procuring a search warrant without just cause. Elements: (PSN) a. Offender is a Public officer or employee; b. He procures a Search warrant; and c. There was No just cause. 2. By exceeding his authority or by using unnecessary severity in executing a search warrant legally procured. Elements: (PSE) a. Offender is a Public officer or employee;

b. He has legally procured a Search warrant; and c. He Exceeds his authority or uses unnecessary severity in executing the same. Search Warrant – it is 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. (Sec. 1, Rule 126, ROC) Requisites for issuance of Search Warrant: a. It must be issued upon probable cause. - i.e. reasons supported by facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the object sought in connection with the offense are in the place sought to be searched (Burgos vs. Chief of Staff, G.R. No. L–64261, December 26, 1984); b. The probable cause must be determined by the judge himself and not by the applicant or any other person; c. In the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and d. The warrant issued must particularly describe the place to be searched and persons or things to be seized. (Sec. 4, Rule 126, ROC)  The true test of lack of just cause is whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused. (Alvarez vs. Court of First Instance, G.R. No. 45358, January 29, 1937) Personal property to be seized: a. Subject of the offense; b. Stolen or embezzled and other proceeds or fruits of the offense; or c. Those used or intended to be used as the means of committing an offense. (Sec. 3, Rule 126, ROC)

Example of exceeding authority executing a search warrant

The evident purpose and intent of requirement (d) is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that "unreasonable searches and seizures" may not be made, — that abuses may not be committed. That the officers of the law believed that the books, papers, etc., which they seized might be used as evidence against the petitioners herein a criminal action against them for a violation of the Opium Law, is no reason or justification under the law for the seizure. (Uy Kheytin vs. Villareal, G.R. No. 16009, September 21, 1920) Example of using unnecessary severity in executing a search warrant If in searching a house, the public officer destroys furniture therein without any justification at all. (Reyes, The Revised Penal Code: Book Two, 2017, p.72) ARTICLE 130 SEARCHING DOMICILE WITHOUT WITNESSES Elements: (SONA) 1. That the Offender is a public officer or employee; 2. That he is Armed with search warrant legally procured; 3. That he Searches the domicile, papers or other belongings of any person; and 4. That the owner, or any member of his family, or two witnesses residing in the same locality are Not present. NOTES: ●

The papers or other belongings must be in the dwelling of their owner at the time the search is made. It does not apply to searches of vehicles or other means of transportation because the searches are not made in the dwelling. (Reyes, The Revised Penal Code: Book Two, 2017, p.74)

● Search of house, room, or premise to be

made in presence of two witnesses. — No

113

search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Sec. 8, Rule 126, ROC) Art. 128, 129 and 130, distinguished Violation of Domicile (Art. 128)

There is warrant.

Search warrants maliciously obtained and abuse in the service of those legally obtained (Art. 129)

no The public officer is armed with a warrant but such was maliciously obtained.

Searching domicile without witnesses (Art. 130)

(People vs. Calera and Cantela, C.A. 45 O.G. 2576)

●

Meeting must be peaceful and there must be no legal ground for prohibiting, dissolving or interrupting that meeting. (Reyes, The Revised Penal Code: Book Two, 2017)

●

Those holding peaceful meetings must comply with local ordinances.

●

The speeches uttered, delivered, and made by the members of the Communist Party of the Philippines in the public meetings or gatherings are highly seditious, in that they suggest and incite rebellious conspiracies and disturb and obstruct the lawful authorities in their duty. It must be considered that the respondent mayor, whose sworn duty it is "to see that nothing should occur which would tend to provoke or excite the people to disturb the peace of the community or the safety or order of the Government," did only the right thing under the circumstances, that is, cancel and withdraw, the permit previously issued by him to said Communist Party. (Evangelista vs. Earnshaw, G.R. No. 36453, September 28, 1932)

●

A city mayor, who denied an application for a permit to hold a political meeting on a certain day, is liable for prohibition of peaceful meetings. (Campanilla, Criminal Law Reviewer, vol. 2, 2018, pp. 52)

There was abuse in the implementation of a valid warrant.

ARTICLE 131 PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS Common Elements: 1. That the offender is a public officer or employee; and 2. That he performs any of the following acts: a. By prohibiting or by interrupting, without legal ground the holding of a peaceful meeting, or by dissolving the same; b. By hindering any person from joining any lawful association, or from attending any of its meetings; or c. By prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances. NOTES: ●

The offender must be a stranger, not a participant in the peaceful meeting. If he is a participant, then he is not guilty under Art. 131 but under Art. 287 for unjust vexation.

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Other possible crimes: 1. Tumults and other disturbances of public order (Art. 153) – if offender is a private person. 2. Unjust Vexation (Art. 287) – if the offender is a participant in the meeting. 3. Disturbance of proceedings of congress or similar bodies (Art. 144) – if the meeting of a legislative body is dissolved. ARTICLE 132 INTERRUPTION OF RELIGIOUS WORSHIP Elements: (PRO) 1. Offender is a public officer or employee;

2. The Religious ceremonies or manifestations of any religion are about to take place or are going on; and 3. The offender Prevents or disturbs the same.

ritual for or attempting to damage an object or religious veneration. (People vs. Baes, supra) ●

The construction of a fence, even though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful", as normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be. (People vs. Reyes, G.R. No. L-40577 August 23, 1934) The crime committed is only unjust vexation.

●

This is the only crime against the fundamental law of the state that may be committed by a private individual.

●

There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or rudeness is not enough.

●

Offense to feelings is judged from the complainant’s point of view. Whether or not the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith. (People vs. Baes, G.R. No. 46000, May 25, 1939)

NOTE: There must be actual religious ceremony being conducted on that occasion, either by itself or in conjunction with some other activity of the religious denomination. If the offense was committed only in a meeting or rally of a sect, it would be punishable under Art. 131. (People vs. Reyes, CA, G.R. No. 13663-R, July 27, 1955)  There was no celebration of any religious ceremony when the funeral passed in the courtyard of a different religion than that of the deceased. The standard that should be adopted is that of all religions, not of the particular complaining religion to avoid the constricted and prejudiced treatment of the provision. (People vs. Baes, G.R. No. L-46000, May 25, 1939) Circumstances qualifying the offense – if the crime is committed with violence or threats. (Reyes, The Revised Penal Code: Book Two, 2017, p.80) ARTICLE 133 OFFENDING THE RELIGIOUS FEELINGS Elements: (CAP- ON) 1. The Acts complained of were performed: a. In a Place devoted to religious worship, or b. During the celebration of any religious Ceremony; 2. The acts must be Notoriously Offensive to the feelings of the faithful. NOTES: ● Religious Ceremonies are those religious

acts performed outside of a church, such as procession and special prayers for burying dead persons. (Reyes, The Revised Penal Code: Book Two, 2017, p.81)

●

Notoriously Offensive Acts are those directly against religious practice or dogma or

Other Possible Crimes: 1. Unjust Vexation (Art. 287) – if the act is not directed to the religious belief itself and the act is not notoriously offensive. 2. Interruption of Religious Worship (Art. 132) – if the act is not directed to the belief itself and the meeting is interrupted by a public officer. C. CRIMES AGAINST PUBLIC ORDER (ARTICLES 134-160) ARTICLE 134 REBELLION OR INSURRECTION Nature: Rebellion is a continuing crime hence rebels can be arrested at any time without warrant.

115

Contra: According to Justice Isagani Cruz in the case of Umil vs. Ramos, G.R. No. 81567, July 9, 1990, arrest without warrant against rebels is a dangerous doctrine for it allows warrantless arrest despite the innocence of the acts of accused at the time they are arrested.

●

Persons merely acting as couriers or spies for the rebels are guilty of rebellion. (Reyes, The Revised Penal Code Book Two, 2011, pp. 88)

●

Giving aid or comfort is not an element of rebellion. (Reyes, The Revised Penal Code Book Two, 2011, pp. 89)

●

Appellant’s acts did not constitute acts of cooperation in the execution of the act of overthrowing the government. Even if considered an indirect help or aid in the rebellion, they cannot constitute previous or simultaneous acts or uprising or rebellion, for, unlike in the crime of treason, the acts giving comfort or moral is not criminal in the case of rebellion or insurrection, where the RPC expressly declares that there must be a public uprising and the taking up of arms. (Cariño vs. People, G.R. No. L-14752 April 30, 1963)

Elements: (PA-RE) 1. That there be: a. Public uprising; and b. taking Arms against the government (force/violence); and 2. That the purpose of the uprising or movement is either: a. to Remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) anybody of land, naval or other armed forces; or b. to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. Rebellion – the object of the movement is to completely overthrow and supersede the existing government. Insurrection – it is employed in reference to a movement which seeks merely to effect some change of minor importance, or to prevent the exercise governmental authority with respect to particular matters or subjects. (Reyes, The Revised Penal Code: Book Two, 2017, p.87)

Rebellion vs. Treason Rebellion (Art. 134)

As to classification Crime against public order.

If the act is to deprive the Judiciary of its powers or prerogatives, the crime committed is sedition. (Art. 139)

●

There is no complex crime of rebellion with murder and other common crimes, whether such crimes are punishable under a special law or general law (RPC) provided that such crimes are committed in furtherance or in pursuance of the movement to overthrow the government. (Ponce Enrile vs. Amin, G.R. No. 93335, September 13, 1990).

Crime against national security.

As to purpose 1.

NOTES: ●

Treason (Art. 114)

To remove from the allegiance to said Government or the laws the territory of the Philippines or body of land, naval or other armed forces; and To deprive the Chief Executive or Congress of any of their powers.

Violation by a subject of his allegiance to his sovereign or to the supreme authority of the State.

As to manner of commission 1. 2.

Public uprising; and 1. By taking arms against the 1. Government.

By levying war against the Government; and By adhering to the enemies of the Philippines, giving them aid or comfort.

As to time of commission

116

May be committed both Committed during time of during times of peace war. and war. As to proof needed for conviction Proved by showing the 1. purpose of the uprising; there must be proof beyond reasonable 2. doubt.

Testimony of two (2) witnesses, at least to the same overt act; or Confession of accused in open court.

(Reyes, The Revised Penal Code: Book Two, 2006, p.89)

ARTICLE 134-A COUP D'ETAT

As to person of the offender Participation is generally Any person belonging to carried out by civilians. the military or police or holding public office, with or without civilian participation. As to objective To overthrow the duly To destabilize or paralyze constituted government. the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. As to number of offenders

Elements: (MAD - S3TIV) 1. The offender is a person or persons belonging to the Military or police or holding any public office or employment; 2. It is committed by means of a Swift attack accompanied by Violence, Intimidation, Threat, Strategy or Stealth; 3. The attack is directed against duly constituted Authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities, or other facilities needed for the exercise and continued possession of power; and 4. The purpose of the attack is to seize or Diminish state power.

Requires a multitude of May be committed singly or people. collectively and does not require a multitude of people. As to manner of commission Can only be committed May be carried out not only through force and by force or violence but intimidation. also through stealth, threat or strategy.

ARTICLE 135 PENALTY FOR REBELLION, INSURRECTION OR COUP D'ETAT

Note:

Who are liable for rebellion, insurrection, and/or coup d’état:

The crime of coup d’etat may be committed with or without civilian participation. (Reyes, The Revised Penal Code: Book Two, 2017, p.93)

The leaders

Rebellion vs. Coup d’etat Rebellion (Art. 134)

Coup d’etat

(Art. 134-A)

As to necessity of public uprising The essence of the crime is public uprising and taking up arms against the government.

Public uprising is not necessary. The essence of the crime is the swift attack, accompanied by violence, intimidation, threat, strategy or stealth.

1. any person who promotes, maintains or heads a rebellion or insurrection; and 2. any person who leads, directs or commands others to undertake a coup d’etat. The participants 1. any person who participates, or executes the commands of others in rebellion, or insurrection; 2. any person in the government service who participates, or executes directions or commands of others in undertaking a coup d’etat; and

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3. any person not in the government service who participates, supports, finances, abets, or raids in undertaking a coup d’etat. NOTES: ●

●

Any person who in fact directed the others; spoke for them; signed receipts and other documents issued in their name; or performed similar acts, on behalf of the rebels shall be deemed the leader of the rebellion, insurrection, or coup d’etat in case he is unknown. A public officer must take active part to be liable; mere silence or omission is not punishable in rebellion. The silence of the defendants as regards the existence of some insurgents is not punishable as insurrection, however reproachful the silence of the defendant may be, it does not in itself constitute the crime of insurrection. (U.S. vs. Ravidas, G.R. No. 1503. March 14, 1905) Being a mere assistant to a principal, guilty of rebellion, the accused is guilty only as a participant in the commission of rebellion under Art. 135(2). (People vs. Lava, G.R. No. L4974-78, May 16, 1969) Membership in a rebel organization does not automatically qualify criminal acts as absorbed in rebellion. It must be conclusively demonstrated that the criminal acts were committed in furtherance of rebellion. (People vs. Lovedioro, G.R. No. 112235, November 29, 1995) Political offense doctrine - common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty. (Ocampo vs. Abando, G.R. No. 176830, February 11, 2014) Any ordinary act assumes a different nature by being absorbed in the crime of rebellion. Thus, when a killing is committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political complexion of rebellion as its mere ingredient and must be

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prosecuted and punished as rebellion alone. (Id.) ARTICLE 136 CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ETAT, REBELLION OR INSURRECTION Punishable Acts: 1. Conspiracy to commit rebellion – when two or more persons come into an agreement to rise publicly and take arms against the Government for any of the purposes of rebellion and decide to commit it; and 2. Proposal to commit rebellion – when the person who has decided to rise publicly and take arms against the Government for any of the purposes of rebellion proposes its execution to some other person/s. (Reyes, The Revised Penal Code: Book Two, 2017, p.100) NOTES: ●

Merely agreeing and deciding to rise publicly and take arms against the government for the purposes of rebellion or merely proposing the commission of said acts is already subject to punishment. (Ibid.)

●

Defendants had organized and were members of a society whose purpose was to overthrow the Government by force, but failed to disclose any overt acts of insurrection. The conviction for insurrection cannot be sustained, but the defendants may be convicted of conspiracy to overthrow the Government. (U.S. vs. Vergara, G.R. No. 1543, March 19, 1904) ARTICLE 137 DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES

Punishable Acts: (CAF) 1. Failing to resist rebellion by all means in the power of the public officer or employee; 2. Continuing to discharge the duties of their offices under the control of the rebels; and 3. Accepting appointment to office under them.

NOTES: ●

●

The crime presupposes the existence of rebellion by other persons. (Reyes, The Revised Penal Code: Book Two, 2017, p.102) The offender must not be in conspiracy with the rebels; otherwise, he himself will also be guilty of rebellion. (Ibid.) ARTICLE 138 INCITING TO REBELLION OR INSURRECTION

Elements: (SIP Not BREW) 1. The offender does Not take arms or is not in open hostility against the Government; 2. He Incites others to the execution of any of the acts of rebellion; and 3. The inciting is done by means of Speeches, Proclamations, Writings, Emblems, Banners or other Representations tending to the same end. Inciting to Rebellion vs. Proposal to Commit Rebellion Inciting to Rebellion (Art. 138)

Proposal to Commit Rebellion (Art. 136)

As to manner of commission In both crimes, the offender induces another to commit rebellion. As to offender’s decision to commit rebellion It is not required that the The person who offender has decided to proposes has decided to commit rebellion. commit rebellion. As to how incitement is made Act of inciting is done Person who proposes publicly. execution uses secret means. As to actual commission of rebellion In both, the crime of rebellion should not be actually committed by the persons to whom it is proposed or who are incited.

If they commit rebellion because of the proposal or inciting, the proponent or the one inciting may become a principal by inducement in the crime of rebellion.

(Reyes, The Revised Penal Code: Book Two, 2006, p.105)

ARTICLE 139 SEDITION Elements: (POT FOIL DEECAP) 1. That the Offenders rise: a. Publicly; and b. Tumultuously. 2. That they employ Force, Intimidation, or other means Outside of Legal methods; 3. That the offenders employ any of those means to attain any of the following objects: a. To prevent the Promulgation or Execution of any law or the holding of any popular election; b. To 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; c. To inflict any Act of hate or revenge upon the person or property of any public officer or employee; d. To Commit, for any political or social end, any act of hate or revenge against private persons or any social class; and e. To Despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof. NOTES: ● Sedition, in its general sense, is the raising of commotions or disturbances in the State. (People vs. Cabrera, G.R. No. 17748, March 4, 1922) ● The crime of sedition is committed by persons who rise publicly and tumultuously. The disturbance or interruption shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence. (Art. 153, RPC) ● Common crimes are not absorbed in sedition. (Reyes, The Revised Penal Code: Book Two, 2017, p.109)

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● If the purpose of the offenders is to attain the objects of rebellion or sedition by force or violence, but there is no public uprising, the crime committed is direct assault. (Art. 148,

RPC)

● There is conspiracy to commit sedition (Art. 141) but no proposal to commit sedition. Sedition vs. Treason Sedition (Art. 139)

ARTICLE 141 CONSPIRACY TO COMMIT SEDITION Conspiracy to commit sedition – is committed by two or more persons, who come to an agreement concerning the commission of sedition and decide to commit it. NOTE: ●

Treason (Art. 114)

As to presence of war Internal conflict.

Philippines must be at war with another country. As to essence

In its more general sense, it is the raising of commotions or disturbances in the State. Causing disturbances in one’s country.

In its more general sense, it is the violation by a subject of his allegiance to its sovereign. Violation of allegiance.

oath

As to purpose Levying a war is not necessary (e.g. civil uprising).

The purpose of levying war is to help the enemy.

Rebellion (Art. 134)

As to presence of public uprising In both, there must be public uprising. As to manner of commission It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. Government. As to purpose The purpose of the The purpose is always offenders may be political political. or social.

Different acts of inciting to sedition: 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.

Not necessarily against Always against the government. government.

a. The offender does Not take a direct part in the crime of sedition; b. He Incites others to the Accomplishment of any of the acts which constitute sedition; and c. That the inciting is done by means of Speeches, Proclamations, Writings, Emblems, Cartoons, Banners, or other Representations tending to the same end (purpose: cause commotion not exactly against the government; actual disturbance not necessary). 2. Uttering seditious words or speeches which tend to disturb the public peace are punishable when: Elements: (RIDE)

As to whom directed

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ARTICLE 142 INCITING TO SEDITION

Elements: (BPO SAW NotICE)

Sedition vs. Rebellion Sedition (Art. 139)

●

There must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition. (Reyes, The Revised Penal Code: Book Two, 2017, p.110) Only conspiracy to commit sedition is punishable, there is no crime for proposal to commit sedition. (Ibid.)

the

a. They tend to disturb or obstruct any lawful officer in Executing the functions of his office; b. They tend to Instigate others to cabal and meet together for unlawful purposes;

They suggest or incite Rebellious conspiracies or riots; and d. They lead or tend to stir up the people against the lawful authorities or to Disturb the peace of the community, the safety and order of the government. 3. Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace. NOTES: ●

“Scurrilous” means low, vulgar, mean or foul.

●

A State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. (Gitlow vs. New York, 268 U.S. 652, 1925)

CRIMES AGAINST POPULAR REPRESENTATION (Articles 143-145) ARTICLE 143 ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES Elements: (PAFF) 1. There be a Projected or Actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board; and 2. The offender who may be any persons prevents such meeting by Force or Fraud. NOTES: ●

The offender doesn’t have to actually prevent the meeting. If his acts tend to prevent the meeting, the crime is consummated.

●

Chief of police and mayor who prevented the meeting of the municipal council are liable under Art. 143 when the defect of the meeting is not manifest.

Rules Relative to Seditious Words: 1. Clear and Present Danger Rule It is required that there must be reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one. There must be the probability of serious injury to the State. (Reyes, The Revised Penal Code: Book Two, 2017, p.114) Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must only be probable but very likely. 2. Dangerous Tendency Rule There is inciting to sedition when the words uttered or published could easily produce disaffection among the people and a state of feeling in them incompatible with a disposition to remain loyal to the Government and obedient to the laws. The dangerous tendency rule is generally adopted in the Philippines. (Reyes, The Revised Penal Code: Book Two, 2017, p.115)

Any stranger, even if he be the municipal president himself or the chief of the municipal police, must respect the meeting of the municipal council which for the time being, at least, raises the presumption that no defect exists to render it illegal. (People vs. Alipit, G.R. No. L-18853, August 22, 1922) ARTICLE 144 DISTURBANCE OF PROCEEDINGS Elements: (MID) 1. That there be a Meeting of Congress or any of its committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; and 2. That the offender does any of the following acts: a. He Disturbs any of such meetings; or b. He behaves while in the presence of any such bodies in such a manner as to

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Interrupt its proceedings or to impair the respect due it. NOTE: ●

It must be a meeting of a legislative body or of provincial board or city or municipal council or board which is disturbed. (Reyes, The Revised Penal Code: Book Two, 2017, p.119) ARTICLE 145 VIOLATION OF PARLIAMENTARY IMMUNITY

Punishable Acts: 1. By using force, intimidation, threats, or frauds to prevent any member of Congress from: a. attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof; b. expressing his opinions; or c. casting his vote. Elements: (PASS – PM) 1. The offender is a Public officer or employee; 2. He Arrests or Searches any member of Congress; 3. Congress, at the time of arrest or search, is in a regular or special Session; and 4. That the member searched has not committed a crime punishable under the code by a penalty higher than Prision Mayor. NOTES: ●

●

It is not necessary that the member is actually prevented from exercising any of his functions. It is sufficient that Congress is in session and the offender, in using force, intimidation, threats, or frauds, has the purpose to prevent a member of the National Assembly from exercising any of such prerogatives. (Reyes, The Revised Penal Code: Book Two, 2017, p.121) Parliamentary immunity does not protect members of Congress from responsibility before the legislative body itself. (Osmena Jr. vs. Pendatun, G.R. No. L–17114, October 28, 1960)

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ARTICLE 146 ILLEGAL ASSEMBLIES Illegal assemblies - Any meeting attended by armed persons for the purpose of committing a crime under the RPC. Nature: The punishable offense here is mere gathering for the unlawful purpose relating to the crime punishable under the RPC. If the offense is punishable under special law, illegal assembly is not committed. (Boado, Notes and Cases on the Revised Penal Code, 2018, pp. 455) Requisites: (MAC) 1. That there is a Meeting, a gathering of a group of persons, whether in a fixed place or moving; 2. That the meeting is attended by an Armed person; and 3. That the purpose of the meeting is to commit any of the Crimes punishable under the code. NOTE: Not all the persons present at the meeting of the first form of illegal assembly must be armed. It is sufficient that at least two persons are armed. (Reyes, The Revised Penal Code: Book Two, 2017, p.124) a. 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 a person in authority or his agents. Requisites: (MARTIS) 1. That there is a Meeting, a gathering of a group of persons, whether in a fixed place or moving; and 2. That the audience, whether armed or not, is incited to the commission of the crime of Treason, Rebellion, or Insurrection, Sedition or Assault. NOTE: It is necessary that the audience is actually incited. If in the meeting the audience is incited to the commission of rebellion or sedition, the crimes committed are illegal assembly as regards the organizers or leaders or persons merely present and inciting to rebellion or sedition insofar as the one inciting them is concerned. (Id.)

Who are liable: 1. Organizers or leaders of the meeting. 2. Persons merely present in the meeting. NOTE: ●

If a group of armed men gathered and conspired for the purpose of committing kidnapping, illegal assembly is committed not because of the conspiracy but because of the gathering of armed men. (Estrada, Criminal Law Book Two, 2011)

If a person present at the meeting carries an unlicensed firearm, it is presumed that: a. The purpose of the meeting is to commit a crime under the RPC; and b. He is considered the leader or organizer of the meeting. ARTICLE 147 ILLEGAL ASSOCIATIONS Illegal associations: 1. Associations organized totally or partially for the purpose of committing any of the crimes in RPC; or 2. Associations organized totally or partially for some purpose contrary to public morals.

although not armed, are incited to the commission of treason, rebellion, sedition, or assault upon a person in authority or his agent. As to acts punishable The meeting attendance at meeting that punished.

and The act of forming or such organizing, and are membership in the association are punished.

As to persons liable Persons liable are the organizers and leaders, and other persons present at the meeting.

Persons liable are the founders, directors, president, and the members of the associations totally or partially organized.

(Reyes, The Revised Penal Code: Book Two, 2017, p.128)

ARTICLE 148 DIRECT ASSAULTS Two ways of committing direct assaults: 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition. (Victim need not be person in authority).

Persons liable: 1. Founders, directors and president of the association . 2. Mere members of the association . Illegal Assembly vs. Illegal Association Illegal Assembly (Art. Illegal Association (Art. 146) 147) As to necessity of actual meeting Necessary that there is Not necessary that there is an actual meeting or an actual meeting. assembly of armed persons for the purpose of committing any of the crimes punishable under the Code, or of individuals who,

Elements: (FIRST) a. The offender employs Force or Intimidation; b. The aim of the offender is to attain any of the purposes of the crime of Rebellion or any of the objects in the crime of Sedition; and c. There is no public uprising. 2. Without public uprising, by attacking, 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.

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Elements: (NAP2AKA - FAIR) a. That the offender: (1) makes an Attack, (2) employs Force, (3) makes a serious Intimidation, or (4) makes a serious Resistance; b. Person assaulted is a Person in Authority or his Agent; c. At the time of the assault, the person in authority or his agent is (1) engaged in the Actual performance of official duties (motive is not essential) or (2) is assaulted by reason of the Past performance of official duties (motive is essential); d. That the offender Knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties; and e. That there is No public uprising. Persons in Authority: a. Those, who are directly vested with jurisdiction, are persons in authority. b. One vested with jurisdiction can be an individual (e.g. chief of police or mayor), a member of a court (e.g. a judge), or a member of board, commission or government-owned or controlled corporation (e.g. Social Security Commissioner). c. A division superintendent of schools is directly vested with jurisdiction since he has the authority of general supervision over schools in his division, with the right to appoint teachers and to fix their salaries. (People vs. Benitez, G.R. No. 49396, September 11, 1942) d. Teachers, professors, and supervisors of schools, colleges and universities, and lawyers are also persons in authority. However, they are only persons in authority for purposes of direct assault and resistance. (People vs. Tac-an, G.R. Nos. 76338-29, February 26, 1990) e. Punong Barangay, members of the Sangguniang Barangay, and Lupong Tagapamayapa in their jurisdictions are deemed persons in authority. (Sec. 388, Local Government Code)

direct provision of law, election, or appointment by competent authority shall be deemed agents of person in authority. (Art. 152, RPC) b. To be considered as an agent of a person in authority, the function of the public officer must be connected in any way with the preservation of law, peace, and order. (People vs. Dite, CA, G.R. No. 17639, September 22, 1958) c. Barangay officials and members who are charged with the maintenance of public order, protection and security of life and property, or of a desirable and balanced environment by law or ordinance shall be deemed agents of a person in authority. (Sec. 388, LGC) d. Persons who come to the aid of persons in authority shall be deemed agents of a person in authority. (Art. 152, RPC) e. Barangay members who come to the aid of persons in authority shall be deemed agents of a person in authority. (Sec. 388, LGC) NOTES: ●

●

Agents of a Person in Authority: a. Persons who are charged with the maintenance of public order and the protection and security of life and property by

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●

It is important to determine whether the victim is a person in authority or his agent. If the victim is a person in authority, the degree of force employed against him is immaterial as the mere laying of hands on him is sufficient. (US vs. Gumban, G.R. No. L– 13658, November 9, 1918) If the victim is an agent of a person in authority, the violence, intimidation, or resistance employed by the offender must be serious. (US vs. Tabiana, G.R. No. L–11847, February 1, 1918) Even the person in authority or his agent agrees to fight, an attack made by accused constitutes direct assault, except when the attack is made in lawful defense, the character of a person in authority or his agent is not laid off at will but attaches to him until he ceases to be in office. (Justo vs. CA, G.R. No. L–8611, June 28, 1956) If direct assault is committed and as a result, the person in authority or his agent is killed, the crime shall be the complex crime of direct assault with homicide or murder, as the case may be. (People vs. Gayrama, G.R. Nos. 39270–71, October 30, 1934) The crime of slight physical injuries is absorbed in direct assault against an agent of the person in authority. (People vs. Acierto, G.R. No. 36595, November 28, 1932)

●

Under Art. 48, a grave or less grave felony cannot be complexed with a light felony like slight physical injury. If committed against a PA, it will be considered as a separate offense. If the laying of hands is during or by reason of the performance of duties of a PA and results to less serious physical injuries, a complex crime of Direct Assault with less serious physical injuries is committed. (Boado, Notes and Cases on the Revised Penal Code, 2018, pp. 463) If the injury is other than less serious physical injuries, and if it is not DA, the generic aggravating circumstance of rank may be appreciated. (Boado, Criminal Law, supra) If the victim is an APA, the generic aggravating circumstance of rank is appreciated. (Boado, Criminal Law, supra) Knowledge of the accused that the victim is a PA or APA is essential. (People vs. Rellin, C.A. Nos. 71 and 72, February 28, 1947) The crime of direct assault is not committed when the PA or APA is suspended or under suspension when he is attacked. Direct assault cannot be committed in times of rebellion or sedition because the Article specifically provides that the assault would be “without public uprising”. (People vs. Abalos, G.R. No. 88189, July 9, 1996)

Two kinds of direct assault: 1. Simple 2. Qualified Direct assault is qualified: a. When the assault is committed with a weapon; b. When the offender is a public officer or employee; or c. When the offender lays hands upon a person in authority. NOTES: ● ●

The circumstance only applies to a PA. it does not include laying hand upon an APA. If resistance is not serious, crime committed may be that under Art. 151 of resistance and disobedience. Resistance and disobedience

●

to a PA is always serious; whereas to an APA, it may or may not be serious. The act of the offender is merely a reaction not an aggression required in Direct Assault. Art. 265 makes the laying of hands upon a PA qualifying provided that the crime committed thereby is not DA. That is, if the laying of hands is not by reason of his being a PA, or due to the performance of his function, the crime is qualified less serious physical injuries. (Boado, Notes and Cases on the Revised Penal Code, 2018, pp. 463) ARTICLE 149 INDIRECT ASSAULT

Elements: (DAIF) 1. That a person in authority or his agent is the victim of any of the forms of Direct assault defined in Art. 148. 2. That a person comes to the Aid of such authority or his agent. 3. That the offender makes use of Force or Intimidation upon such person coming to the aid of the authority or his agent. NOTES: 1. Because of the amendment in Art. 152 by R.A. No. 1978, a private individual coming to the aid of a person in authority is himself deemed an agent of the person in authority. Thus, the rules are: 1. If the victim is a PA who is subject of a direct assault, and the third person coming to his aid (who then becomes an APA) is likewise attacked, the crime committed against the third person will be direct assault, resistance or disobedience depending on the degree of force or violence used by the offender; 2. If the victim is an APA, it depends: a. If direct assault is being committed against the APA, the attack against the third person will constitute indirect assault; or b. If only resistance or disobedience is being committed against the agent, the attack against the third person is either physical injuries or coercion as the case may be.

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2. The offended party in indirect assault may be a private person. Art. 149 states that the use of force or intimidation must be made “upon any person coming to the aid of a person in authority. (Reyes, The Revised Penal Code: Book Two, 2017, p.49) 3. Indirect assault can be committed only when a direct assault is also committed. (Ibid.) ARTICLE 150 DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS Punishable Acts: (SAWI2) 1. Refusing without legal excuse to obey Summons; 2. Refusing to be sworn or placed under Affirmation; 3. Refusing to answer any legal Inquiry to produce books, records etc.; 4. Restraining another from attending as Witness in such body; and 5. Inducing disobedience to summons or refusal to be sworn by any such body or official. NOTE: Any of the acts punished herein may also constitute contempt. (Arnault vs. Nazareno, G.R. No. L–3820, July 18, 1950)  The Court finds that the period of imprisonment under the inherent power of contempt by the Senate during inquiries in aid of legislation should only last until the termination of the legislative inquiry under which the said power is invoked. In Arnault (supra.), it was stated that obedience to its process may be enforced by the Senate Committee if the subject of investigation before it was within the range of legitimate legislative inquiry and the proposed testimony called relates to that subject. Accordingly, as long as there is a legitimate legislative inquiry, then the inherent power of contempt by the Senate may be properly exercised. Conversely, once the said legislative inquiry concludes, the exercise of the inherent power of contempt ceases and there is no more genuine necessity to penalize the detained

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witness. (Balag vs. Senate, G.R. No. 234608, July 03, 2018) ARTICLE 151 RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON Resistance – is committed by any person who resists a person in authority, or his agents, while engaged in the performance of official duties provided that the act is not constitutive of direct assault. Disobedience – is committed by any person who disobeys a person in authority, or his agent, while engaged in the performance of official duties provided that the act does not constitute direct assault. Elements of Resistance Disobedience: (NERD)

and

Serious

1. A person in authority or his agent is Engaged in the performance of official duty or gives a lawful order to the offender; 2. The offender Resists or seriously Disobeys such person in authority or his agent; and 3. The act of the offender is Not included in the provisions of arts. 148, 149 and 150. Elements of Simple Disobedience: (END) 1. An agent of a person in authority is Engaged in the performance of official duty gives a lawful order to the offender; 2. The offender Disobeys such agent of a person in authority; 3. That such disobedience is Not of a serious nature. NOTES: The accused must have knowledge that the person arresting him is a peace officer. (Reyes, The Revised Penal Code: Book Two, 2017, p.153) The order given must be lawful; otherwise the resistance is justified. Resisting arrest without intent to defy the law and its representative at all hazard is simple resistance, but resisting arrest with intent to defy the law and its representative at all hazard is

direct assault. (Campanilla, Criminal Law Reviewer, vol. 2, 2018, pp. 64)

PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY

Direct Assault vs. Resistance or Disobedience

Public Officer – is any person who takes part in the performance of public functions in the government. (Art. 203, RPC)

Direct Assault (Art. 148)

Resistance or Disobedience (Art. 151)

As to time of commission PA/ APA must be engaged Only in actual in the performance of performance of duties. official duties or he is assaulted by reason or past performance of duty. As to degree of force Force employed is serious. Use of force is not so serious. When a person being apprehended by a police officer resists or uses force that is not dangerous, grave, or severe, the offense is not direct assault under Article 148 of the Revised Penal Code. Instead, the proper offense is resistance and disobedience to an agent of a person in authority, penalized under Article 151 of the Revised Penal Code. (Mallari vs. People,

G.R. No. 224679, February 12, 2020) As to use of force Attack or employment of Attack or employment of force is deliberate. force is not so deliberate. As to manner of commission Committed in any of the Committed by resisting or following ways: seriously disobeying a PA 1. By attacking; or APA. 2. By employing force; 3. By seriously intimidating; or 4. By seriously resisting a person in authority or his agent.

ARTICLE 152

Person in Authority – is any person directly vested with jurisdiction or the power and authority to govern and execute the laws, whether as an individual or as a member of some court or government corporation, board or commission. The following are persons in authority: a. b. c. d. e. f. g. h. i.

The municipal mayor; Division superintendent of schools; Teacher–nurse; Public and private school teachers; President of sanitary division; Provincial Fiscal; Barrio captain and barangay chairman; Members of Sangguniang Barangay; and Members of Lupong Tagapamayapa and Pangkat Tagapagkasundo.

Agent of a person in authority – 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 of the security of life and property. ARTICLE 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER - TUMULTUOUS DISTURBANCE OR INTERRUPTION LIABLE TO CAUSE DISTURBANCE Punishable Acts: (BOPIS) 1. Causing any Serious disturbance in a public place, office or establishment; 2. Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if the act is not included in Art 131 and 132; 3. Making any Outcry tending to incite rebellion or sedition in any meeting, association or public place; 4. Displaying placards or emblems which Provoke a disturbance of public order in such place; and

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5. Burying with pomp the body of a person who has been legally executed.

the outburst described above.

(Reyes, The Revised Penal Code: Book Two, 2006, p.164)

NOTES: If the disturbance or interruption is of tumultuous character, the crime shall be qualified and the penalty next higher in degree shall be imposed. Tumultuous disturbance – is committed if the disturbance or interruption of public disorder is of a tumultuous character or caused by at least four (4) armed persons or provided with means of violence. If the purpose of the uprisers in causing a tumultuous disturbance in a public place is to attain a political or social objective mentioned in Art. 139 and they employ force, intimidation, or other means outside of legal methods to attain such purpose, the crime committed is sedition. If the purpose is not one of those stated in Art. 139, the crime committed is tumultuous disturbance under Art. 153. If the disturbance is slight and not serious, the crime committed is alarm and scandal under Art. 155. Public Disorder vs. Inciting to Rebellion or Sedition Public Disorder (Art. 153)

Inciting to Rebellion or Sedition (Art. 138)

ARTICLE 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES Punishable Acts: (FAME) 1. Publishing or causing to be published, by means of printing, lithography or any other means of publication as news, any False news which may endanger the public order, or cause damage to the interest or credit of the State. 2. Encouraging disobedience to the law or to the constituted authorities or by praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches. 3. Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially. 4. Printing, publishing or distributing or (causing the same) books, pamphlets, periodicals or leaflets which do not bear the real printer’s name or which are classified as Anonymous. NOTES: ●

As to the making of an outcry The outcry is more less unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition.

The outcry displaying of emblems or placards should have been done with the idea aforethought of inducing his hearers or readers to commit the crime of rebellion or sedition.

As to when meeting becomes unlawful At the outset the meeting is lawful but becomes unlawful after

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At the outset, the meeting is unlawful.

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If the printer/owner of the printing establishment took part in the preparation and publication of the libelous writings he shall be liable under Art. 360 (Persons liable for libel). Actual public disorder or actual damage to the credit of the State is not necessary. The mere possibility of causing such damage is sufficient. (Reyes, The Revised Penal Code: Book Two, 2017, p.165) If the publication is both obscene and anonymous, the offenses cannot be complexed as they involve different acts separately punished under this Article and Art. 201 on obscene publications. The offender must know that the news is false. (Ibid.) ARTICLE 155

ALARMS AND SCANDALS NOTES: Punishable Acts: (COINED) 1. Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause alarm or danger; 2. Instigating or taking active part in any Charivari or Other disorderly meeting offensive to another or prejudicial to public tranquility; 3. Disturbing the public peace while wandering about at Night or while Engaged in any other nocturnal amusement; and 4. Causing any disturbance or scandal in public places while Intoxicated or otherwise, provided Art 153 is not covered.

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Variant Crimes can arise from the use of firearms 1.

Alarms and scandals (Art. 155) – offender

Attempted or frustrated homicide or murder

3. 4. 5.

discharges a firearm in public place but the firearm is not pointed to a particular person when discharged.

- when the discharge is with intent to kill, the crime is at least attempted homicide or murder. Physical injuries – if the person was injured but there was no intent to kill. Threat – if the weapon is not discharged but aimed at another. (Light treat if drawn in a quarrel but not in self-defense) Grave coercion - if the threat was direct, immediate, and serious and the person is compelled or prevented to do something against his will. Illegal possession of firearm – if the firearm is a loose firearm (unlicensed).

Creating noise and annoyance may bring the following crimes: 1. Alarms and scandals – disturbing the public in general by playing or singing karaoke noisily during midnight in the neighborhood. 2. Unjust vexation – the noise is directed to a particular person or family (light coercion under Art. 287).

The discharge of firearm should not be aimed at a person; otherwise, the offense would fall under Art. 254 punishing discharge of firearms. (Id.) Charivari includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, or other utensils designed to annoy and insult. (Id.) If the disturbance is of a serious nature, the case will fall under Art. 153 as tumultuous disturbance. (Id.) the crime of alarms and scandals constitutes only one crime. Scandal here does not refer to moral scandal in the contemplation of Art. 200. This provision deals with disturbance of public peace and tranquility. (Estrada, Criminal Law Book Two, 2011) ARTICLE 156 DELIVERING PRISONERS FROM JAIL

Elements: 1. That there is a person confined in a jail or penal establishment; and 2. That the offender removes therefor such person, or helps the escape of such person. NOTES: 1.

2. 3.

The person confined may be a mere detention prisoner (Art. 29) or convict serving sentence. The prisoner may also, by final judgment. (Id.) If the escapee is a detention prisoner, he is not criminally liable. If the escapee is serving final judgment, he is guilty under Art. 157 on evasion of service sentence. Violence, intimidation, or bribery is not necessary. (Id.) A person, who substituted for a prisoner by taking his place in jail, is liable for delivering prisoners from jail. (Campanilla, Criminal Law Reviewer, vol. 2, 2018, pp. 70) One, who furnished a detention prisoner with the material means or tools which greatly facilitate his escape, is liable for delivery of prisoner from jail. (Id.) Delivery of prisoners from jail can take place outside the penal establishments by taking the guards by surprise. (Id.)

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Delivering prisoners from jail and Infidelity in the custody of prisoners, distinguished Delivering prisoners from jail (Art. 156)

Infidelity in the custody of prisoners (Art. 223)

As to the person of the offender Usually committed by an Public officer who had the outsider. prisoner in his custody or charge who was in It may also apply to an connivance with the employee of the penal prisoner in the latter’s establishment, provided escape. he does not have custody or charge of such person.

(Reyes, The Revised Penal Code: Book Two, 2006, p.170)

As to the person of the prisoner He may be a convict by final judgment or by a detention prisoner.

ARTICLE 157 EVASION OF SERVICE OF SENTENCE Elements: (DECS) 1. That the offender is a Convict by final judgment; 2. That he is Serving his sentence which consists in Deprivation of liberty (destierro included); and 3. That he evades the service of his sentence by Escaping during the term of his sentence (fact of return immaterial). Circumstances qualifying the offense: If such evasion or escape takes place: a. By means of unlawful entry (by “scaling”); b. By breaking doors, windows, gates, walls, roofs or floors; c. By using picklocks, false keys, disguise, deceit, violence or intimidation; or d. Through connivance with other convicts or employees of the penal institution.

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NOTES: This crime cannot be committed by a detention prisoner because there is yet no sentence to evade. (Estrada, Criminal Law Book Two, 2011)  This article is not applicable to a sentence executed by deportation because the convict is not imprisoned and thereafter would break jail. (Reyes, The Revised Penal Code: Book Two, 2017, p.172) However, this article was made applicable by the Supreme Court to a convict who was sentenced of destierro by virtue of final judgment. He was prohibited from entering the City of Manila but he entered said City. (People vs. Abiong, G.R. No. L-1960, November 26, 1948)  The crime evasion of service of sentence is a continuing offense which may be prosecuted in any place where the offender may be found. (Paulan vs. Director of Prisons, G.R. No. L28519, February 17, 1968) The prisoner serving sentence may still be liable for this crime even if he returned to jail not long after he escaped. His voluntary return does not exculpate him from criminal liability. It will be considered as mitigating circumstance. ARTICLE 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES Elements: (LCD 48) 1. That the offender is a Convicted by final judgment who is confined in a penal institution; 2. That there is Disorder, resulting from: (a) conflagration, (b) earthquake, (c) explosion, (d) similar catastrophe, or (e) mutiny in which the offender has not participated; 3. That the offender evades the service of his sentence by Leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; and 4. That the offender fails to give himself up to the authorities within 48 hours following the

issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. NOTES: ●

Evasion lies in the failure to return, not in leaving the penal establishment: (a) Leaving without returning – 1/5 addition to the remaining sentence which should not be more than six months, that is 1/5 of the balance of the sentence to be served or six months whichever is lesser. (b) Not leaving – 2/5 deduction from sentence. (c) Leaving and thereafter returning 48 hours after the proclamation by the President of the end of calamity – 1/5 deduction from his sentence. (Art. 158, as amended by R.A. No. 10592)

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The deduction for loyalty under Art. 98 should be based on the original sentence as the article did not qualify the word “sentence” unlike in Art. 158 which expressly stated that the sentence to be added shall be based on the period “still remaining to be served.” Art. 158 specified that the additional sentence should exceed 6 months showing the intent of the Congress to limit the penalty to the accused.

Summarized Rules among Art. 156, 157, and 158 in relation to Art. 223, 224, and 225

Evasion of service of sentence is committed by: 1. A prisoner in confinement by final judgment who escaped from his confinement; 2. A pardonee violating the conditions of his pardon; and 3. A convict sentenced to destierro who entered the prohibited area. Infidelity in the custody of prisoner is committed by: 1. A public officer who consented or connived in the escape of convict or detention prisoner (Art. 223) and is the custodian of the prisoner; 2. A public officer-custodian of the prisoner whose negligence caused the evasion (Art. 224); 3. A private person to whom the custody of the prisoner was confided who consented, connived or was negligent causing the evasion

(Art. 225).

ARTICLE 159 OTHER CASES OF EVASION OF SERVICE OF SENTENCE Elements: (ViC2) 1. That the offender was a Convict; 2. That he was granted a Conditional pardon by the Chief Executive; and 3. That he Violated any of the conditions of such pardon. Penalty for violation of conditional pardon

Delivery of prisoner from jail is committed by:

Depends upon the penalty remitted by the granting of pardon:

1. A detention prisoner if he participated in the plan to make him escape or at least acquiesced thereto; 2. A convict whose conviction is not yet final or on appeal under the same condition; and 3. A person rescuing prisoner from jail. He can be a civilian or a public officer who is not the prisoner’s custodian.

a. If the unexpired portion of the penalty is higher than 6 years, the convict shall suffer such unexpired portion. b. If the unexpired portion is not higher than 6 years, the convict shall then suffer the penalty of prision correccional in its minimum period. NOTES: ●

If the remitted portion of the sentence is less than six (6) years or up to six (6) years, there is an added penalty of prision correccional

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minimum. Hence, the violation is a substantive offense because in this case, a new penalty is imposed for the violation of the conditional pardon. ●

However, if the remitted portion of the sentence exceeds six (6) years, the violation of the conditional pardon is not a substantive offense because no new penalty is imposed for the violation.

Violation of conditional pardon and evasion of service of sentence, distinguished Violation of conditional pardon (Art. 159)

Evasion of service of sentence (Art. 157)

ARTICLE 161 COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINES ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE Punishable Acts: (S3) 1. Forging the great Seal of the Government; 2. Forging the Signature of the President; or, 3. Forging the Stamp of the President. Counterfeiting – refers to money or currency; Forgery – refers to the instruments of credit and obligations and securities issued by the Philippine government or any banking institution authorized by the Philippine government to issue the same.

As to manner of commission Violates the terms of the An attempt to evade the conditional pardon. penalty inflicted by the courts upon criminals.

As to effect on public order Does not order.

affect

public Disturbs public order.

ARTICLE 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE (QUASI-RECIDIVISM)

(Please see discussion under Multiple Offenders at pp. 69-70) D. CRIMES AGAINST PUBLIC INTEREST (ARTICLES 161-189) The crimes under this title are in the nature of fraud upon the public in general. The essence of these crimes is against public interest. There is deceit perpetrated upon the public.

Falsification – can only be committed on documents. However, an unauthorized use of the genuine seal of the government or the genuine signature of the President to the prejudice of another person is Estafa under Art. 315 (2) of the RPC. NOTE: When in a Government document, the signature of the President is forged, it is NOT called falsification. Art. 161 supplied the specific provision to govern the case. The name of the crime is forging the signature of the Chief Executive. (Reyes, The Revised Penal Code: Book Two, 2017, p.190) It would seem that if the Chief Executive left with his secretary a signature in blank, and a document is written above it, the crime committed is NOT covered by Art. 161. The one applicable is Art. 171 or Art. 172. (Ibid.) ARTICLE 162 USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP Elements: (KCUF) 1. That the Great Seal of the Republic has been Counterfeited or that the signature of the President has been Forged by another person; 2. The offender Knew of the counterfeiting or forgery; and

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3. He Used the counterfeited seal or forged signature or stamp.

NOTE: Former coins withdrawn from circulation may still be counterfeited under Art. 163.

Note: The offender should not be the forger; otherwise, he will be penalized under Art. 161. In using forged signature or stamp of the Chief Executive, or forged seal, the participation of the offender is in effect that of an accessory, and although the general rule is that he should be punished by a penalty two degrees lower, under Art. 162 he is punished by a penalty only one degree lower. (Reyes, The Revised Penal Code: Book Two, 2017, p.191)

The reason for punishing the fabrication of a coin withdrawn from circulation is not alone the harm that may be caused to the public in case it goes into circulation again, but the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation. (People vs. Kong Leon, C.A., 48, O.G. 664)

ARTICLE 163 MAKING AND IMPORTING AND UTTERING FALSE COINS

Punishable Acts: MuCon

Elements: (FaCoMCon) 1. That there be a False or Counterfeited coin; 2. The offender either Made, imported or uttered such coins; and 3. That in case of uttering such false or counterfeited coins, he Connived with the counterfeiters or importers. False or counterfeited coin – if it is forged or if it is not authorized by the Government as legal tender, regardless of its intrinsic value. (Id.) Counterfeiting – means the imitation of a legal or genuine coin. It may contain more silver than the ordinary coin. (Reyes, The Revised Penal Code: Book Two, 2017, p.193)  There must be an imitation of the peculiar design of a genuine coin. (U.S. vs. Basco, G.R. No. L-2747, April 11, 1906) To import fake coins – is the act of bringing them into port. The importation is complete even before entry at the Customs house. (U.S. VS. Lyman, 26 Fed. Cas. 1024) Utter – to pass counterfeited coins. It includes their delivery or the act of giving them away. A counterfeited coin is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utter may not obtain the gain he intended. (Decisions of the Supreme Court of Spain January 11, 1913; January 4, 1893; November 12, 1888; and December 24, 1885)

ARTICLE 164 MUTILATION OF COINS

1. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another; or 2. Importing or uttering such mutilated coins, with the further requirement that there must be Connivance with the mutilator or importer in case of uttering. Mutilation – to take off part of the metal either by filing it or substituting it for another metal of inferior quality. (Reyes, The Revised Penal Code: Book Two, 2017, p.195) ●

It is to diminish by ingenuous means the metal in the coin. (People vs. Tin Ching Ting, G.R. No. L-4620, January 30, 1962)

NOTE: Mere possession of a counterfeited or mutilated coin is not a crime. There must be an intent to utter or distribute it in circulation to make it a crime. Legal Tender – the currency which has been suitable by law for the purpose of a tender of payment of debts. Notes and coins issued and circulating in accordance with RA No. 265 as amended and/or RA No. 7653, which when offered for the payment of public or private debt must be accepted. (BSP Circular No. 61 Series of 1995) NOTE: The coin must be of the legal currency or current coins of the Philippines. If coin mutilated is legal tender of a foreign country, it is not a crime of mutilation under the RPC. (Reyes, The Revised Penal Code: Book Two, 2017, p.195)

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ARTICLE 165 SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE Punishable Acts: 1. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. Elements: (PIK) a. Possession; b. With Intent to utter; and c. Knowledge. 2. Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. Elements: (KA) a. Actually uttering; and b. Knowledge. NOTES: ●

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Possession of or uttering false coin does not require that the counterfeited coin is legal tender. (People vs. Tin Ching Ting, G.R. No. L4620, January 30, 1962) The possession prohibited in Art. 165 of the RPC is possession in general, that is, not only actual, physical possession, but also constructive possession or the subjection of the thing to one’s control, otherwise offenders could easily evade the law by the mere expedient of placing other persons in actual, physical possession of the thing although retaining constructive possession or actual control thereof. (Reyes, The Revised Penal Code: Book Two, 2006, p.198) The accused must have knowledge of the fact that the coin is false. The fact that a person received a false coin in payment of his goods and placed it in his drawer shows that he did not know that such coin was false. (People vs. Go Po, G.R. No. 42697, August 1985)

ARTICLE 166 FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING, AND UTTERING SUCH FALSE OR FORGED NOTES, AND DOCUMENTS Punishable Acts: (FImU) 1. Forging or falsification of treasury, bank notes or other documents payable to bearer; 2. Importation of such false or forged obligation or notes; or 3. Uttering of such false or forged obligations or notes in connivance with forgers or importers. NOTES: Forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document; or by erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or sign contained therein. (Art. 169) Importation of false or forged obligations or notes means to bring them into the Philippines, which presupposes that the obligations or notes are forged or falsified in a foreign country. (Reyes, The Revised Penal Code: Book Two, 2017, p.199) Uttering of false or forged obligations or notes means offering obligations or notes knowing them to be false or forged, whether such offer is accepted or not, with a representation, by words or actions, that they are genuine and with an intent to defraud. Uttering forged bill must be with connivance to constitute a violation of Art. 166. (People vs. Valencia, G.R. No. L-39864, December 8, 1933) “Obligation or security” of the Philippines – shall be held to mean bonds, certificates of indebtedness, national bank notes, coupons, treasury notes, fractional notes, certificates of deposits, bills, checks, drafts for money, and other representatives of value issued under any Act of Congress. (Reyes, The Revised Penal Code: Book Two, 2017, p.199) Notes and obligations and securities that may be forged or falsified under Art. 166 are treasury or

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bank notes, certificates and other obligations and securities payable to bearer. An instrument is payable to bearer when: a. It is expressed to be so payable; b. It is payable to a person named therein or bearer; c. It is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable; d. The name of the payee does not purport to be the name of any person; or e. The only or last indorsement is an indorsement in blank. (Sec. 9, Negotiable Instruments Law) ARTICLE 167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER Elements: (COFI-CU) 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 instrument; and 3. That in case of uttering, he Connived with the forger or importer. NOTES: An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. (Sec. 8, NIL)  Reason for punishing forgery: to maintain the integrity of the currency and to insure the credit standing of the government and prevent the imposition on the public and the government of worthless notes or obligations. (People vs. Galano, C.A., 54 O.G. 5897)  Connivance is not required in uttering if the utterer is the forger, for he can be held liable as a forger of the instrument. (People vs. Orqueza, 14 C.A. Rep, 730)

ARTICLE 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT Elements: (ForFal – PUK) 1. Any treasury or bank note or certificate or other obligation and certificate payable to bearer or any instrument payable to order or other document of credit not payable to bearer is Forged or Falsified by another person; 2. The offender Knows that any of those instruments is forged or falsified; and 3. That he performs any of these acts: a. Using any of such forged or falsified instruments; or b. Possession with intent to use, any of the forged or falsified instruments. NOTE: Possession of false treasury or bank notes alone is not a criminal offense. For it to constitute an offense, possession must be with intent to use said false treasury or bank notes. (People vs. Digoro, G.R. No. L–22032, March 4, 1966) Mere possession of false money bill, without intent to use it to the damage of another, is not a crime. There must be intent to use it to the damage of another. However, the accused has the burden to give satisfactory explanation of his possession of forged bills. (Reyes, The Revised Penal Code: Book Two, 2017, p.206) ARTICLE 169 HOW FORGERY IS COMMITTED 1. By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document; or 2. By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or sign contained therein. NOTE: This provision contemplates not only situations involving spurious, false or fake document, but also situations involving originally true and genuine documents which have been withdrawn or demonetized, or have outlived their usefulness. The forgery consists in the addition of a word in an effort to give to the present document the appearance of a true and genuine

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certificate that it used to have before it has withdrawn or has outlived its usefulness. (People vs. Galana, G.R. No. 111806, March 9, 2000)

ARTICLE 171 FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER

Acts of Falsification

Elements: Forgery

Falsification

As used in Art. 169, forgery refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to the bearer or to order.

It is the commission of any of the eight acts mentioned in Art. 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages.

1. 2. 3.

The offender is a public officer or a notary public or an ecclesiastical minister; He takes advantage of his official position; He falsifies a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric;

Requisites: The essence of forgery is giving a document the appearance of a true and genuine document. Hence, mere change on a document does not amount to this crime. (People vs. Galana, supra) ARTICLE 170 FALSIFICATION OF LEGISLATIVE DOCUMENTS Elements: (BANC) 1. There is a Bill, resolution or ordinance enacted or approved or pending approval by Congress or any Provincial Board or Municipal Council which includes City Council or Municipal Board; 2. The offender Alters the same; 3. The offender has No proper authority therefore; and 4. The alteration has Changed the meaning of the document. NOTES: ●

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In relation to this Article, the bill, resolution or ordinance must be genuine. A fabricated or simulated legislative document is not covered by Art. 170. (Reyes, The Revised Penal Code: Book Two, 2017, p.211) As to the offender, such may be any person who has no proper authority to make the alteration. Therefore, the offender may be a private individual or a public officer. (Ibid.) The act of falsification in legislative document is limited to altering it which changes its meaning. (Ibid.)

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1. There is an intent to imitate or attempt to imitate; and 2. That the two signatures or handwritings, the genuine and the forged, bear some resemblance to each other. (U.S. vs. Rampas, G.R. No. 9146, November 26, 1913) 1. Counterfeiting – imitating any handwriting, signature or rubric. Imitating (feigning) – forgery of a signature, handwriting, or rubric out of one which does not in fact exist. (Reyes, The Revised Penal Code: Book Two, 2017, p.217) 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; Requisites: 1. That the offender caused it to appear in a document that a person or persons participated in an act or proceeding; and 2. That such person or persons did not in fact so participate in the act or proceeding. NOTE: When committed by a private individual, Art. 172 should be applied. (Id.) 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by such person/s; Requisites: 1. That a person or persons participated in an act or a proceeding;

2. That such person or persons made statements in that act or proceeding; and 3. That the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. 4. Making untruthful statements in a narration of facts; Requisites: 1. That the offender makes in a document statements in a narration of facts; 2. That he has a legal obligation to disclose the truth of the facts narrated by him; 3. That the facts narrated by the offender are absolutely false; and 4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. NOTES:  It is merely an account or description of the particulars of an event or occurrence. Hence, the use of words or figures or numbers or any combination of two or three said things, as long as it describes an event or occurrence is sufficient to make a narration of facts as defined under Art. 171 (4) of the RPC. (Bartolo vs. Sandiganbayan, G.R. No. 172123, April 16, 2009) “Legal obligation” means that there is a law requiring the disclosure of the truth of facts narrated. (Reyes, The Revised Penal Code: Book Two, 2017, p.221) The promulgation of Central Bank Circular 133 wiped away the legal obligation of the applicants for foreign exchange to disclose the truth of the facts narrated in the documents supporting their application. As there is no more legal obligation of the applicant to disclose such truth, an untruthful statement therein no longer constitutes the crime of falsification perpetrated by making false statements in a narration of facts. (Ramirez vs. Court of Appeals, G.R. No. L-2358788, June 10, 1976)  Wrongful intent not essential when the document falsified is public document.

(People vs. Po Giok To, G.R. No. L-7236 April 30, 1955)

5. Altering true dates;  Date must be essential such as it affects either the veracity of the document or the effects thereof. (Decisions of the Supreme Court of Spain of February 25, 1885, and June 21, 1886, cited in the case of People vs. Reodica and Cordero, G.R. No. 42557, December 7, 1935) 6. Making any alteration or intercalation in a genuine document which changes its meaning; NOTES:  Alteration which speaks the truth is not falsification. The idea of deception is inherent in the word alteration – of making the instrument speak something which the parties did not intend it to speak. (US vs. Mateo, G.R. No. 8025, September 17, 1913)  In falsification, the document need not be an authentic official paper since its simulation, in fact, is the essence of falsification. (Nizurtado vs. Sanganbayan, G.R. No. 107383, December 7, 1994) 7. Issuing in an authenticated form a document purported to be a copy of an original document when no such original exist; or including in such copy a statement contrary to or different from that of the genuine original; and NOTES: ● The acts of falsification mentioned in this paragraph can be committed only by a public officer or notary public who takes advantage of his official position, since the authentication of a document can be made only by the custodian or the one who prepared and retained a copy of the original document.

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 A private person who cooperates with a public officer in the falsification of a public document is guilty of this crime and incurs the same liability and penalty as the public officer. (U.S. vs. Ponte, G.R. No. L-5952, October 24, 1911)  Intent to gain or prejudice is not necessary, because it is the interest of the community which is intended to be guaranteed by the strict faithfulness of the officials charged with the preparation or preservation of the acts in which they intervene. (Reyes, The Revised Penal Code: Book Two, 2017, p.228) 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.  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. (Reyes, The Revised Penal Code: Book Two, 2006, p.215) ARTICLE 172 FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS Punishable Acts: (F2U) 1. Falsification of public, official or commercial documents by a private individual; 2. Falsification of private document by any person; or 3. Use of falsified document in a judicial proceeding or in any other proceeding. Elements of Falsification of public, official or commercial documents by a private individual: 1. Offender is a private individual or public officer or employee who did not take advantage of his official position; 2. He committed any acts of falsification under Art. 171; and

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3. Falsification was committed in a public or official, or commercial document. Importance documents:

the

classification

a) In private documents, criminal liability will not arise, unless there is damage caused or it has been established that the accused acted with intent to cause damages. Mere falsity will not bring about criminal liability but only civil liability. b) In public documents or commercial documents, criminal liability can arise although nobody suffered damage out of the falsification and it is not necessary to prove that the accused acted with intent to cause damage. Document – is any written statement by which a right is established or an obligation extinguished or by which a fact may be proved or affirmed. Four Kinds of Documents: 1. Public document – one that has been notarized, one that is part of public record, any instrument authorized by a notary public or a competent public official, with the solemnities (Cacnio vs. Baens, G.R. No. 2116, March 16, 1906); 2. Official document – the execution of which a public official takes part, a document which is issued by a public official in the exercise of the functions of his office. An official document is also a public document. It falls within the larger class called public documents (U.S. vs. Asensi, G.R. No. 11165, August 15, 1916); 3. Commercial document – these are documents used by merchants or businessmen to promote or facilitate trade or credit transactions such as certificate of time deposit (Amibito vs. People, G.R. No. 127327, February 13, 2009), loan documents (People vs. Go, G.R. No. 191015, August 6, 2014) and sales invoice (People vs. Monteverde, G.R. No. 139610, August 12, 2002). Also, these are documents defined and regulated by commercial law such as promissory note and check. (Campanilla, Criminal Law Reviewer Volume II, 2019, p. 88); and

4. Private document – the execution of which only private individuals take part, a deed or instrument executed by a private person without the intervention of a notary public or other person legally authorized, by which document some disposition or agreement is proved, evidenced or set forth. (US vs. Orera, G.R. No. 3810, October 18, 1907) Elements of Falsification document by any person:

private

1. Offender committed any of the acts of falsification except Art. 171(7); 2. It was committed in any private document; and 3. Falsification caused damage to a third party or at least the falsification was committed was intent to cause such damage. NOTES: Damage need not be material, damage to one’s honor is included. (People vs. Marasigan, G.R. No. 6040, October 18, 1940) Generally, falsification is consummated when the genuine document is altered or the moment the false document is executed. It is immaterial that the offender did not achieve his objective. There is no complex crime of estafa through falsification of private document because the immediate effect of falsification of private document is the same as that of estafa. (Reyes, The Revised Penal Code: Book Two, 2006, p.242) There is no falsification of private document through reckless imprudence since there is at least intent to cause damage, that is, there must be malice. (Reyes, The Revised Penal Code: Book Two, 2006, p.241) Elements of Use of falsified document in a judicial proceeding or in any other proceeding: 1. Introducing in a judicial proceeding: a. Offender knew that a document was falsified by another person; b. The false document is embraced in Art. 171 or in any subdivisions No. 1 or 2 of Art. 172;

He introduced the said document in evidence in any judicial proceeding.

2. Use in any other transaction: a. Offender knew that a document was falsified by another person; b. The false document is embraced in Art. 171 or in any of the subdivision no. 1 or 2 of Art. 172; c. He used such document but not in a judicial proceeding; and d. The use of false document caused damage to another or at least it was used with intent to cause damage to another. NOTE: If a person makes, presents or uses any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases, such person is liable under P.D. No. 1829 (Obstruction of Justice Law). Art. 171 vs. Art. 172 (ODD) Art. 171

Art. 172 As to Offender

The offender is a public The offender includes a officer, notary public or private individual. ecclesiastical minister. As to Document falsified The document falsified is a public document, such that: (1) Document falsified by public officer is a public or official document; (2) The document a notary public is a notarized document, which is a public document; (3) The only document that can be falsified by ecclesiastical minister is marriage contract, which is a public document.

The document falsified is classified into public, official and commercial, on the one hand, and private on the other.

As to Damage as element

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Damage is not an element but the erosion of public faith in the documents.

Damage is an element in the case of falsification and in the use of falsified document not in judicial proceedings.

ARTICLE 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES Punishable Acts: (UFU) 1. Uttering fictitious wireless, telegraph or telephone messages; 2. Falsifying wireless, telegraph or telephone messages; and Common elements for the two acts: a. The offender is an officer or employee of the government or private corporation engaged in the service of sending and receiving wireless cable or telephone message; and b. Offender commits any of the above acts. 3. Using such falsified messages. Elements: a. Accused knew that wireless, cable, telegraph or telephone message was falsified by any persons specified in the Art. 173(1); b. The accused used such falsified dispatch; c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice. ARTICLE 174 FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERIT OR SERVICE, ETC. Persons liable: a. Physician or surgeon – in connection with the practice of his profession, shall issue a false certificate (crime is False Medical Certificate by a physician); b. Public officer – issue a false certificate of merit of service, good conduct or similar circumstances (crime is False Certificate of Merit or Service by a public officer); and

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Private person – falsify a certificate failing within the classes mentioned in the two preceding subdivisions (crime is False Medical Certificate by a private individual, False Certificate of Merit or Service or by a private individual).

Certificate – is any writing by which testimony is given that a fact has or has not taken place. (Bouvier’s Law Dictionary) ARTICLE 175 USING FALSE CERTIFICATES Elements: (PhyKU) 1. A Physician or surgeon had issued a false medical certificate, or a public officer had issued a false certificate of merit or service, good conduct or similar circumstances or a private person had falsified any of said certificates; 2. The offender Knew that the certificate was false; and 3. He Used the same. NOTE: When any of the false certificates mentioned in Art. 174 is used in the judicial proceeding, Art. 172 does not apply, because the use of false document in judicial proceeding under Art. 172 is limited to those false documents embraced in Art. 171 & 172. (Reyes, The Revised Penal Code: Book Two, 2017, p.250) ARTICLE 176 MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION Punishable Acts: 1. Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification; 2. Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person. NOTE: The possession prohibited in Articles 165 and 176 of the RPC is possession in general, that is, not only actual, physical possession, but also

constructive possession or the subjection of the thing to one’s control. (Ibid.) ARTICLE 177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS Punishable Acts: 1. Usurpation of Authority - By knowingly and falsely representing oneself to be an officer, agent or representative of any department or agency of the Philippine government or of any foreign government. 2. Usurpation of Official Functions - By performing any act pertaining to any person in authority or public officer of the Philippine Government or of a foreign government or any agency thereof, under the pretense of official position, and without being lawfully entitled to do so. NOTE: There must be positive, express, and explicit representation. The crime is not committed if the accused merely did not deny that he was an agent of the Philippine Government when introduced as such by public officials. (People vs. Calinisan, 8 C.A. Rep., 20) ARTICLE 178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME Punishable Acts:

Fictitious Name – any other name which a person publicly applies to himself without authority of law is a fictitious name. (U.S. vs. To Lee Piu, G.R. No. 11522, September 26, 1916) The signing of a fictitious name in an application for passport, is publicly using such fictitious name in an application. (Id.) Damage must be to public interest. If damage is to private interest, the crime will be estafa under Art. 315 2(a). Elements of Concealing true name: a. The offender conceals his true name and all other personal circumstances; and b. The purpose is only to conceal his identity. Use of fictitious name vs. Concealing true name Use of fictitious name

Concealing true name

As to Purpose Purpose is either to Purpose is merely conceal a crime, to evade conceal identity. execution of judgment, or to cause damage.

As to necessity of Publicity as an element The element of publicity The element of publicity is is present. not necessary.

1. Using fictitious name 2. Concealing true name

(Reyes, The Revised Penal Code: Book Two, 2006, p.261)

Elements of using fictitious name: (UP – ConEC)

ARTICLE 179 ILLEGAL USE OF UNIFORMS OR INSIGNIA

a. The offender Uses a name other than his real name; b. He uses the fictitious name Publicly; and c. The purpose of the offender is: i. To Conceal a crime; ii. To Evade the execution of a judgment; or iii. To Cause damage to public interest.

Elements: (IUD-IN)

NOTES:

1. The offender makes use of Insignia, Uniform or Dress; 2. The insignia, uniform or dress pertains to an office Not held by the offender or to a class of persons of which he is not a member; and 3. The said insignia, uniform or dress is used publicly and Improperly.

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Wearing the uniform of an imaginary office is not punishable. (Reyes, The Revised Penal Code: Book Two, 2017, p.262)

b. In civil cases (Art. 182); and c. In other cases, (special proceedings, administrative proceedings) (Art. 183).

An exact imitation of the dress or uniform is unnecessary.

Penalty to be imposed:

 Exact imitation is not necessary. A colorable resemblance calculated to deceive the common run of the people – not those thoroughly familiar with every detail or accessory thereof – is sufficient. (People vs. Romero, G.R. No. 20249–R and 20250, October 6, 1961) The term “improperly” means that the offender has no right to use the uniform or insignia. Using naval, military, police or other official uniform, decoration or regalia of foreign state with intent to deceive or mislead is punished by RA 75. Wearing insignia, badge or emblem of rank of the members of the Armed Forces of the Philippine or Constabulary is punished by RA 493 except if used in playhouse or theater or in moving picture films. ARTICLE 180 FALSE TESTIMONY AGAINST A DEFENDANT Elements: (Crim FACK) 1. There is a Criminal proceeding; 2. The offender testifies Falsely under oath against the defendant therein; 3. The offender who gives false testimony 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. False testimony – is committed by a person who, being under oath and required to testify as the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. (Reyes, The Revised Penal Code: Book Two, 2017, p.263) Forms of False Testimony: a. In criminal cases (Art. 180-181);

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It depends upon the sentence imposed to the accused. This crime is committed whether the accused is convicted or acquitted. It is not punishable however, if the accused is charged with a light felony. A light felony is an infraction of the law for the commission of which the penalty of arresto menor or a fine not exceeding forty thousand pesos or Php 40,000.00 or both is provided. (Art. 9[3], R.A. No. 10951 or RPC as amended on August 29, 2017) NOTES: Defendant must be sentenced at least to (1) a correctional penalty, or (2) a fine, or (3) must be acquitted. (Reyes, The Revised Penal Code: Book Two, 2017, pp. 265) The witness who gave false testimony is liable even if the court did not consider his testimony. ARTICLE 181 FALSE TESTIMONY FAVORABLE TO THE DEFENDANT Elements: 1. There is a criminal case; 2. A person gives false testimony; 3. In favor of the defendant (accused). NOTES: False testimony favorable to the defendant is equally repugnant to the orderly administration of justice. (Reyes, The Revised Penal Code: Book Two, 2017, p.266) The false testimony in favor of defendant need not directly influence the decision of acquittal. (Ibid.) The false testimony favorable to the defendant need not benefit the defendant. It is sufficient that the false testimony was given with intent to favor the defendant. (Ibid.)

Conviction or acquittal of defendant in principal case is not necessary. (Ibid.) Rectification made spontaneously after realizing mistake is not false testimony. (Ibid.) Penalty to be imposed: The penalty imposable to the false witness depends upon the classification of the felony and the penalty imposable. ARTICLE 182 FALSE TESTIMONY IN CIVIL CASES Elements: (Civ FaKMI) 1. The testimony must be given in a Civil case; 2. It must relate to the Issues presented in said case; 3. It must be False; 4. It must be given by the defendant Knowing the same to be false; and 5. The testimony must be Malicious and given with an intent to affect the issues presented in said case. NOTES: ●

●

As a rule, Art. 182 is applicable only to ordinary or special civil actions and supplementary or ancillary proceedings, but not applicable when the false testimony is given in special proceedings. (Id.) The penalty depends on the amount of the controversy. (Id.)

Effect on Prescriptive Period on the nature of false testimony: Whether the testimony is in favor or against the accused determines when the prescriptive period begins to run when: 1. In favor – right after the witness testified, the period commences to run because the basis of the penalty on the false witness is the felony charged to the accused regardless of whether the accused is acquitted or convicted or the trial has terminated. 2. Against – period will not begin to run as long as the case has not been decided with finality because the basis of the penalty on the false witness is the sentence on the

accused. When the accused is acquitted, there is also a corresponding penalty on the false witness for his false testimony. ARTICLE 183 FALSE TESTIMONY IN OTHER CASES AND PERJURY Elements of perjury: (MOWR) 1. Accused made a statement under oath or executed an affidavit upon a Material matter; 2. The statement or affidavit was made before a competent Officer, authorized to receive and administer oaths; 3. The accused made a Willful and deliberate assertion of a falsehood; and 4. That the sworn statement or affidavit containing the falsity is Required by law or authorized by law. Two ways of committing perjury: 1. Falsely testifying under oath; and 2. Making a false affidavit. NOTES: Oath – any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. (Reyes, The Revised Penal Code: Book Two, 2006, p.273) Affidavit – a sworn statement in writing, a declaration in writing, made upon oath before an authorized magistrate or officer. (Id.) Material matter – it is the main fact which is the subject of the inquiry or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject inquiry, or which legitimately affects the credit of any witness who testifies. (U.S. vs. Estraña, G.R. No. 5751, September 6, 1910)  Subornation of Perjury – procures another to swear falsely and the witness committed perjury. There is no crime of subordination of perjury. The crime is now treated as plain perjury with the one inducing another as the principal by inducement and the latter, as principal by direct participation. (People vs. Pudol, G.R. No. L-45618, October 18, 1938)

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Art. 183 governs false testimony given in cases other than those punished in Art. 180–182, and in actions for perjury. There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate. (Reyes, The Revised Penal Code: Book Two, 2017, p.275) ARTICLE 184 OFFERING FALSE TESTIMONY IN EVIDENCE Elements: (EJK) 1. Offender offered in Evidence a false witness or false testimony; 2. He Knew the witness or the testimony was false; and 3. The offer was made in any Judicial or official proceeding. NOTES: ● This article 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. (Reyes, The Revised Penal Code: Book Two, 2017, p.279) ● The felony is consummated the moment a false witness is offered in any judicial or official proceeding. Looking for a false witness is not punished by law as that is not offering a false witness. ● The false witness need not be convicted of false testimony. A mere offer to present him is sufficient. ● Mere inconsistencies or contradictions on material points in a testimony or affidavit would not be enough to convict an accused for false testimony or perjury. It is incumbent upon the prosecution to prove the statement is false by other evidence. (Id.) ARTICLE 185 MACHINATIONS IN PUBLIC AUCTIONS Nature: No crime of attempted or frustrated machination in public auctions. Attempting to do overt act consummates the crime.

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Acts punishable: 1. By soliciting any gift or promise as a consideration for refraining from taking part in any public auction; and 2. By attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice. Elements of soliciting gift or promise: (SIRA) 1. That 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 thing auctioned. Elements of attempting to cause bidders to stay away: (TRAP) 1. That there be a Public auction; 2. That the accused Attempted to cause the bidders to stay away from that public auction; 3. That it was done by Threats, gifts, promises, or any other artifice; and 4. That the accused has the intent to cause the Reduction of the price of the thing auctioned. NOTES: ● The crime is consummated by the mere act of soliciting a gift or promise, and it is not required that the person making the proposal actually refrains from taking part in any public auction. (Reyes, The Revised Penal Code: Book Two, 2017, p.282) ● Mere attempt to cause prospective bidders to stay away from the auction is sufficient to constitute an offense. The threat need not be effective nor the offer or gift accepted. (Id.) ● Reason for the provision: Execution sales should be opened to secure the maximum benefit for the debtors. (Diaz vs. Kapunan, December 8, 1923)

ARTICLE 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

449 are repealed insofar as they are inconsistent with PD 1602, which provides for stiffer penalties for violation of the Gambling Laws.

Art. 186 has been repealed by the R.A. No. 10667 – Philippine Competition Act

Art. 199. Illegal Cockfighting – the provision has been modified or repealed by PD 449 or the Cockfighting Law of 1974.

NOTES: ● The act of a person distributing papers and proclamations spreading subversive and fanatic ideas that unless people would lower the prices of needful commodities, they would be visited by flood and other calamities is an example of spreading false rumors or making use of any artifice to restrain free competition in the market. (U.S. vs. Fulgueras, G.R. No. 2176, April 18, 1905) ● The theory of the law in penalizing monopolies and combinations in restraint of trade is that competition, not combination, should be the law of trade. (Reyes, The Revised Penal Code: Book Two, 2017, p.294) ● When offense is committed by a corporation or association, the president and directors or managers are liable when: o They knowingly permitted; or Failed to prevent the commission of such offenses. Reyes, The Revised Penal Code: Book Two, 2017, p.295) TITLE FIVE. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS (ARTICLES 190-194)

[Repealed by R.A. No. 9165] R.A. No. 9165 – Dangerous Drugs Act (See further discussion on Special Laws) provides that provisions of RPC shall not apply to the provisions of this Act (R.A. No. 9165), except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. E. CRIMES AGAINST PUBLIC MORALS (ARTICLES 195-202) PD 1602 or Gambling Law and R.A. No. 9287 – ILLEGAL NUMBERS GAMES (See further discussion on Special Laws) repealed Articles 195–199 and provisions of PD 483 and

ARTICLE 200 GRAVE SCANDAL Elements: (P2H-Not) 1. That the offender Performs an act or acts; 2. That such act or acts be Highly scandalous as offering against decency or good customs; 3. That the highly scandalous conduct is Not expressly falling within any article of this Code; and 4. That the act or acts complained of be committed in a public place or within the Public knowledge or view. NOTES: 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 witnessed the same. (Reyes, The Revised Penal Code: Book Two, 2017, p.372) If the act or acts of the offender are punished under another article of this code, Article 200 is not applicable. (Reyes, The Revised Penal Code: Book Two, 2017, p.372) The acts must be performed in a public place OR within public knowledge or view. For being committed within the public knowledge, it may occur even in a private place. But when the act complained of was committed at night, and at a time when no one was present except the accused, the mistress of the house and one servant, these circumstances do not constitute the degree of publicity which is an essential element of the crime. (U.S. vs. Catajay, G.R. No. 2785, August 23, 1906) The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be

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of such character as to cause public scandal to those witnessing it. ARTICLE 201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS* as amended by P.D. Nos. 960 and 969 2

Persons Liable: (Ex OS) a. Those who shall publicly Expound or proclaim doctrines openly contrary to public morals; b. Authors of Obscene literature, published with their knowledge in any form, editors publishing such literature, and the owners/operators of the establishment selling the same; c. Those who, in theaters, fairs, cinematographs or any other place shall Exhibit indecent or immoral plays, scenes, acts or show, whether live or in film, which shall: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race, or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decree and edicts. d. Those who Sells, gives away, or exhibit films, prints, engravings, sculptures, or literature which are offensive to morals. NOTES:  Publicity is essential. The mere possession of obscene literature is not punishable. There must be publishing, selling, exhibiting, or giving away (distribution) of such literature. This is to consider that the purpose of the law is to prohibit the dissemination of obscene materials to the public. (Fernando vs. CA, G.R. No. 159751, December 6, 2006) ● Tests 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 whether or not such publication or act shocks the ordinary and common sense of men as an indecency.

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(U.S. vs. Kottinger, G.R. No. L-20569, October 29, 1923)

● Pictures with slight degree of obscenity, not used for art’s sake but for commercial purposes, fall under this article. (Reyes, 2017; People vs. Go Pin, G.R. No. L-7491, August 8, 1955) ● Disposition of prohibited articles: a. Upon conviction of offender – to be forfeited in favor of the government to be destroyed. b. Acquittal of offender – to be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by Chief Constabulary. The aggrieved may, within 15 days after receipt of a copy of the decision in forfeiture proceedings, appeal the matter to the Secretary of National Defense. The decision of the latter shall be final and unappealable.

(Sec. 2, P.D. No. 969)

In case the offender is a government official or employee, the penalty imposed herein shall be imposed in the maximum period and, in addition, the accessory penalties be provided for in the RPC, as amended, shall likewise be imposed .

(Sec. 4 P.D. No. 969)

R.A. 9995 or the Anti-Photo and Video Voyeurism Act of 2009 (See further discussion on Special Laws) prohibits the taking, copying, selling, publishing or broadcasting of photos or videos of sexual acts. ARTICLE 202 VAGRANTS AND PROSTITUTES Republic Act No. 10158 decriminalizes vagrancy and provides that “Women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes”. (Sec. 1, R.A. No. 10158) All persons serving sentence for violation of the provisions of Art. 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained for any other offense or felony. (Sec. 3, R.A. No. 10158)

NOTES: Carnal knowledge of a child below 12 years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation/deprivation of reason of the victim becomes irrelevant. (People vs. Jalosjos, G.R. Nos. 132875-76. November 16, 2001) The term prostitution is not applicable to a man. A man who engages in the same conduct is not a prostitute but a vagrant. However, he may be punished under city/municipal ordinance. RA 9208 or The Anti-Trafficking in Persons Act of 2003 (See further discussion on Special Laws) includes in the unlawful acts trafficking in persons for purposes of prostitution. F. CRIMES COMMITTED BY PUBLIC OFFICERS (ARTICLES 203-245) ARTICLE 203 WHO ARE PUBLIC OFFICERS Requisites: (PLEA) To be a public officer, one must be: 1. Takes part in the Performance of public functions in the government, or performing in said government or in any of its branches public duties as an employee, agent, and subordinate official of any rank or class. 2. His authority to take part in the performance of public functions or to perform duties must be: a. By direct provision of Law; b. Popular Election; or c. Appointment by competent authority. Dereliction of duty – misconduct in office or prevarication, such as rendering an unjust judgment knowingly. Misfeasance – the performance of some act which might lawfully done. Malfeasance – the improper performance of some act which ought not to be done.

Nonfeasance – omission of some act which ought to be performed. (Words and Phrases, Permanent Edition, No. 27)  The term public officers embrace every public servant from the highest to the lowest. For the purposes of the RPC, it obliterates the standard distinction under administrative law of public officers between officer and employee. For purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official. (Maniego vs. People, G.R. No. L– 2971, April 20, 1951) One appointed as laborer in government is not a public officer but temporary performance of public functions by a laborer makes him a public officer. (Reyes, The Revised Penal Code: Book Two, 2017, p.392) ARTICLE 204 KNOWINGLY RENDERING UNJUST JUDGMENT Elements: (JR-UK) 1. The offender is a Judge; 2. He Renders judgment in a case submitted to him for decision; 3. Judgment is Unjust; and 4. Judge Knows that his judgment is unjust.  Judgement is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding. (Gotamco vs. Chan Seng, et al., G.R. No. L-22737, November 28, 1924)  Unjust judgement is one which is contrary to law, or is not supported by the evidence, or both. The source of unjust judgement may either be 1) error or 2) ill-will or 3) revenge, or 4) revenge. (Reyes, The Revised Penal Code: Book Two, 2017, pp.394-395)  The judge must render the judgment with conscious and deliberate intent to do an injustice. (De Guzman vs. Dy, A.M. No. RTJ– 0301755, July 3, 2003)  Art. 204 has no application to members of a collegiate court (e.g. Supreme Court, Court of

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Appeals, Sandiganbayan and Court of Tax Appeals) who reached their conclusions in consultation and accordingly render their collective judgment after due deliberation. (In Re: Laureta, G.R. No. 68635, May 14, 1987) No liability at all for mere error. Bad faith is the ground of liability. (Reyes, The Revised Penal Code: Book Two, 2017, p.395) There must be evidence that the decision rendered is unjust. It cannot be presumed. (Ibid.) Abuse of discretion or mere error of judgement cannot likewise serve as basis for rendering an unjust judgment in the absence of proof or an allegation of bad faith. (Ibid.)  Judges are not administratively accountable for every erroneous ruling or decision rendered provided he acts in good faith and without malice.— However, since it is a fundamental rule of long standing that a judicial officer when required to exercise his judgment or discretion is not criminally liable for any error he commits provided he acts in good faith, that in the absence of malice or other wrongful conduct on the part of the respondent in issuing an order, the judge cannot be held administratively responsible therefor even if the appellate court upholds a different view and finds his conclusion to be erroneous for "no one, called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment," and "and to hold a judge administratively accountable for every erroneous ruling or decision he renders assuming that he has erred, would be nothing short of harassment or would make his position unbearable. (Mendoza vs. Villaluz, Adm. Case No. 1797-CCC, August 27, 1981) ARTICLE 205 JUDGMENT RENDERED THROUGH NEGLIGENCE Elements: (JuManRI) 1. The offender is a Judge; 2. He Renders judgment in a case submitted to him for decision; 3. The judgment is Manifestly unjust; and

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4. It is due to his Inexcusable negligence or ignorance. NOTES: Manifestly Unjust Judgment – means it is so manifestly contrary to law, that even a person having a meager knowledge of the law cannot doubt the injustice. (Reyes, The Revised Penal Code: Book Two, 2006, p.378) Therefore, there is no need for “a final and authoritative judicial declaration” that the decision or order in question is indeed “unjust”.  A mere error of judgment cannot serve as basis for a charge of knowingly rendering an unjust judgment, where there is no proof or even allegation of bad faith, or ill motive, or improper consideration. (Yaranon vs. Judge Rubio, A.M. No. 449-MJ, August 7, 1975) ARTICLE 206 UNJUST INTERLOCUTORY ORDER Elements: (Ju-KIPer) 1. The offender is a Judge; and 2. He Performs any of the following acts: a. Knowingly renders unjust interlocutory order or decree; or b. Renders a manifestly unjust interlocutory order or decree through Inexcusable negligence or ignorance. Notes:

Interlocutory order is any order issued by a judge

that does not finally disposes of a case or a matter pending before him. It refers to any order issued by a judge from the inception of a case until its final determination. (Reyes, The Revised Penal Code: Book Two, 2017, p.398)  The test in determining whether an order or judgment is interlocutory or final is: if it leaves something to be done in the trial court with respect to the merits of the case, it is interlocutory, if it does not, it is final. (Kapisanan ng mga Manggagawa sa Maynila Railroad Company vs. Yard Crew Union, et al., G.R. Nos. L-16292-94, L-16309 and L-16317-18, October 31, 1960)

ARTICLE 207 MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE Elements (Ju-ProMaDe): 1. The offender is a Judge; 2. There is a Proceeding in Court; 3. He Delays the administration of justice; and 4. The delay is Malicious, that is, the delay is caused by the Judge with deliberate intent to inflict damage on either party in the case. Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. Mere delay without malice is not a felony under this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.398) ARTICLE 208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE Acts punishable: (Ref-Tol) 1. By maliciously Refraining from instituting prosecution against violators of the law; or 2. By maliciously Tolerating the commission of offenses. Elements: (P-DerMa) 1. Offender is a Public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offense; 2. There is a Dereliction of the duties of his office: knowing the commission of the crime, he does not cause the prosecution of the criminal; and knowing that a crime is about to be committed, he tolerates its commission; and 3. The offender acts with Malice and deliberate intent to favor the violator of the law.

Prevaricacion – applies to public officers who

violate their oaths of office by not carrying out the duties of their office. It applies to public officers in general who maliciously refrain from exercising the duties of their office. It is commonly used to define dereliction of duty.

It covers all instances of dereliction of duty where a public official violates his oath of office. ● Officer of the law – all those who, by reason of the position held by them, are duty-bound to cause the prosecution and punishment of the offenders. ● Public officer – extends to officers of the prosecution department whose duty is to institute criminal proceedings for felonies upon being informed of their perpetration e.g., fiscal or prosecutor, law enforcers. ● A dereliction of duty caused by poor judgment/ honest mistake is not punishable. The offender must act with malice. (Reyes, The Revised Penal Code: Book Two, 2017, p.400) ● Not applicable to revenue officers. (Ibid.) ● Crime must be proved before the conviction for dereliction. (U.S. vs Mendoza, G.R. No. 7540, September 23, 1912) ARTICLE 209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR Acts punishable: (DaBIRU) 1. By causing Damage to his client by either: a. Any malicious Breach of professional duty; or b. Inexcusable negligence or ignorance. 2. By Revealing any of the secrets of his client learned by him in his professional capacity; and 3. By Undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of said first client, or after having received confidential information from said client. ● Betrayal of trust by an attorney about the client’s future criminal acts are not privileged. ● Under the 1st act: when the attorney acts (1) with malicious abuse of his professional duty, or (2) inexcusable negligence or imprudence, there must be damage to his client. (Reyes, The Revised Penal Code: Book Two, 2017, p.402) ● Under the 2nd act: Damage is not necessary. (Id.)

The term prevaricacion is wider in scope. It is not limited only to dereliction of duty under Art. 208.

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ARTICLE 210 DIRECT BRIBERY

● The crime is applicable even to a temporary appointee or a de facto officer.

Nature: No attempted or frustrated bribery, because, if the officer refuses to be bribed, the offeror alone is liable and not for attempted bribery but for attempted corruption of a public official under Art. 212 in relation to Art. 6.

● For the purpose of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public officer.

Elements: (PAS:CER-Con) 1. Offender is a Public officer within the scope of Art. 203; 2. He Accepts an offer or promise or receives a gift or present by himself or through another; 3. Such offer or promise be accepted, or gift or present received by the public officer: a. With a view to committing some Crime; b. In consideration of the Execution of an act which does not constitute a crime but the act must be unjust; or c. To Refrain from doing something which it is his official duty to do so; 4. That the act which the offender agrees to perform or which he executes be Connected with the performance of his official duties. **Bribery - the act of the receiver; Corruption of public officials - act of the giver. Acts punishable: (PER) 1. By agreeing to Perform or by performing in consideration of any offer, promise, gift or present – an act constituting a crime, in connection with the performance of his official duties; 2. By accepting a gift in consideration of the Execution of an act – which does not constitute a crime but is unjust in connection with the performance of his official duty; 3. By agreeing to Refrain, or by refraining from doing something which is his official duty to do in consideration of a gift or promise. NOTES:

● Official duties include in any action which is authorized. The acts referred to in law, which the offender agrees to perform or execute, must be related to or linked with the performance of his official duties. (Tad-y vs. People, G.R. No. 148862, August 11, 2005) ● Gift or Present may be received by public officer or third person. (Reyes, The Revised Penal Code: Book Two, 2017, p.405) ● Gift is either: a) voluntarily offered by private person, or b) solicited by a public officer. (Id.) ● Gift or present need not be actually received by the public officer, as an accepted promise or offer is sufficient. But in case there is only an offer of gift or promise, it must be accepted by the public officer, otherwise, only the person offering the gift/ present is liable. (Id.) ● Gift is given for the fear of the consequences which would result if the officer performs his functions. ● Gift or Present must have a value or capable of pecuniary estimation. (Id.) Any value is sufficient. ● Public officer shall suffer the penalty corresponding to the crime agreed upon, if the same shall have been committed (2 crimes and penalties). ● No Bribery if the act is in discharge of a mere moral duty or act agreed upon is foreign to the duties of the office as to lack even the color of authority. (Reyes, The Revised Penal Code: Book Two, 2006, p.389)

● Public Officer – every public servant from the higher to the lowest. (Reyes, The Revised Penal Code: Book Two, 2017, p.404)

● 2nd Par. Of Bribery – mere agreement or promise is not sufficient.

● Bribery cannot be consummated without the corresponding crime of corruption of public officer;

● 3rd Par. Of Bribery – different from prevaricacion. In Direct Bribery, offender refrained from doing official duty in

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consideration of a gift received/ promise. This element is not necessary in the crime under Art. 208. ● Direct Bribery is a crime involving moral turpitude. (Reyes, The Revised Penal Code: Book Two, 2017, p.411)  The fact that the offender agrees to accept a promise or gift, and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. (Magno vs. COMELEC, G.R. No. 147904, October 4, 2002) ARTICLE 211 INDIRECT BRIBERY Elements: (PAO) 1. The offender is a Public officer; 2. He Accepts gifts (with clear intention to take the gift); and 3. The gifts are offered to him by reason of his Office. NOTES: ● Mere physical receipt unaccompanied by any other sign or act to show acceptance is insufficient. ● There is no attempted or frustrated indirect bribery because it is committed by accepting gifts offered to the public officer by reason of his office, if he does not accept the gift, he does not commit the crime. If he accepts it, the crime is consummated. (Reyes, The Revised Penal Code: Book Two, 2017, p.412) ● Act may be considered indirect bribery even if there was a sort of an agreement between public officer and giver of gift. (People vs. Pamplona, C.A., 51 O.G. 4116) ● In connection with Indirect Bribery, Presidential Decree 46 prohibits the giving and acceptance of gifts by a public officer even during anniversaries, Christmas, New Year or

any other gift-giving occasion. The law punishes both the giver and the receiver. The prohibition extends also to gifts given by reason of past or future services (Reyes, The

Revised Penal Code Criminal Law Book Two, 2017, pp. 413-414). Direct Bribery and distinguished (P3CA) Direct Bribery

Indirect

Bribery,

Indirect Bribery

As to act of Public Officer The public officer receives a gift. As to Purpose of gift The act desired by the Gifts are offered and briber to be done by the received by reason of the public officer is in office. connection with the performance of the latter’s official duties. As to Consummation of the crime Mere promise of a gift is It is necessary that the sufficient. public officer actually receives the gifts offered to him by reason of his office. As to existence of Agreement There is an agreement Usually, between the officer and exists. the giver.

agreement

As to Participation of offender The offender agrees to perform an act or refrain 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 gifts offered to him by reason of his office.

(Reyes, The Revised Penal Code: Book Two, 2006, p.393)

ARTICLE 211-A QUALIFIED BRIBERY Elements: (PRO) 1. Offender is a Public officer entrusted with law enforcement;

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2. He Refrains from arresting or prosecuting an offender who committed a crime punishable by reclusion perpetua and/or death; and 3. The offender refrains from arresting or prosecuting in consideration of any Offer, promise, gift, or present. NOTE: Crime must be punishable by reclusion perpetua, otherwise it is not considered as Qualified Bribery, only Dereliction. (Art. 208, RPC) ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS Elements: (ML) 1. Offender Makes, offers, promises or gives gifts or presents to a public officer; and 2. The offers or promises are made or the gifts or presents given to a public officer under circumstances that will make the public officer Liable for direct bribery or indirect bribery. Notes: The offender is the person who made the offer or promise or gave the gift, even if the gift was demanded by the public officer and the offer was not made voluntarily prior to demand by public officer. (Reyes, The Revised Penal Code: Book Two, 2017, p.415) Bribery is usually proved by evidence acquired entrapment. (Ibid.) When a public officer refuses to be corrupted, the crime committed is attempted corruption of public official only. When the public official allowed himself to be corrupted, the corruptor becomes liable for consummated corruption of public official and the public officer is equally liable for consummated bribery. Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act (See further discussion on Special Laws) was enacted to deter public officials and employees from committing acts of dishonesty and improve the tone of morality in public service. (Morfe vs. Mutuc, G.R. No. L-20387, January 31, 1968)

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Republic Act No. 7080 – Anti Plunder Act (See further discussion on Special Laws) defines and penalizes the crime of plunder. ARTICLE 213 FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES Elements of fraud against public treasury (par. 1): (PA2D) 1. Offender is a Public officer; 2. He should have taken Advantage of his office (he intervened in the transaction in his official capacity; 3. He entered into an Agreement with any interested party or speculator or made use of any other scheme with respect to: a. The furnishing of supplies; b. The making of contracts; or c. The adjustment or settlement of accounts relating to public property or funds; and 4. The accused had intent to Defraud the government. Punishable acts: 1. Entering into an agreement with any Interested party or speculator, or making use of any other scheme, to defraud the Government, in dealing with any person or with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property funds (fraud against public treasury); 2.

Demanding. directly or indirectly, the payment of sums different from or larger than those authorized by law, in the collection of taxes, licenses, fees and other imposts (illegal exaction);

3. Failing voluntarily to issue a receipt as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts (illegal exaction); and 4. Collecting or receiving directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by Jaw, in the collection of taxes,

licenses, fees and other imposts (illegal exaction). NOTES: ● Public officer must act in his official capacity. (Reyes, The Revised Penal Code: Book Two, 2017, p.436) felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government. (Ibid.)

payment in checks. That will tantamount to illegal exaction. A tax collector who collected a sum larger than that authorized by law and spent all of them is giving them is guilty of 2 crimes: a) illegal exaction and b) malversation. (Reyes, The Revised Penal Code: Book Two, 2017, p.438)

● The

Elements of illegal exactions (pars. 2–4): (TaG:DFAC) 1. Offender is a public officer entrusted with the collection of Taxes, licenses, fees and other imposts; 2. He is Guilty of any of the following acts or omissions: a. Demanding directly, or indirectly, the payment of sums different from or larger than those authorized by law; b. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; c. Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law. NOTES: Mere demand for larger or different amount is sufficient to consummate a crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.437) Collecting officer must issue official receipt, otherwise, he is guilty of illegal exaction. (Ibid.) When there is deceit in demanding greater fees than those prescribed by law the crime committed is estafa and not illegal exaction. (US vs. Lopez, et al, G.R. No. 3968, March 21, 1908) Officer or employee of Bureau of Internal Customs is not covered by Art. 213, the National Internal Revenue Code or the Administrative Code applies. (Art. 213, last par.) If the law requires that payment should be in case, it is unlawful for a public officer to receive

ARTICLE 214 OTHER FRAUDS Elements: (FAP) 1. The offender is a Public officer; 2. He takes Advantage of his official position; and 3. He commits any of the Frauds or deceit enumerated in Arts. 315 to 318. NOTES: Other frauds are: 1) estafa; 2) other forms of swindling; 3) swindling a minor; and 4) other deceits. The Regional Trial Court (RTC) has jurisdiction when this article is involved regardless of the amount involved, because the MTC has no jurisdiction to impose penalty of disqualification. Under this article, the penalty of disqualification is imposed as principal penalty. (Reyes, The Revised Penal Code: Book Two, 2017, p.439) ARTICLE 215 PROHIBITED TRANSACTIONS Elements: (TApIn2) 1. The offender is an Appointive public officer; 2. He becomes Interested, directly or indirectly, in any transaction of exchange or speculation; 3. The transaction takes place within the Territory subject to his jurisdiction; and 4. He becomes interested in the transactions during his Incumbency. NOTES: The transaction must be one of exchange or speculation, such as buying and selling stocks commodities, land, etc., hoping to take advantage of the expected rise or fall in price.

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The appointive public officer should not devote himself to commerce.

Section 13, Article VII -The President, VicePresident, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office; and

Section 2, Article IX-A - No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government. or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Purchasing of stocks or shares in a company is simply an investment and is not a violation of this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.440) Examples of Appointive public officer: Justices, judges, fiscals, employees engaged in the collection and administration of public funds. (Ibid.) ARTICLE 216 POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER Persons liable: (PEx-Gu) 1. Public officer who, directly or indirectly, become interested in any contract or business in which it was his official duty to intervene; 2. Experts, arbitrators and private accountants who, in like manner, shall take part in any conduct or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted; and 3. Guardians and executors with respect to the property belonging to their wards or estate. NOTES: ● Actual fraud is not necessary, the act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party which he represents. (US vs. Udarbe, G.R. No. 9945, November 12, 1914)

Prohibited Transactions vs. Prohibited Interest (PSD) Prohibited Transactions

As to Persons liable

● Intervention must be by virtue of public office held. (Reyes, 2017; People vs. Meneses, C.A., 40 O.G., Supp. 11, 134)

Appointed officer.

● Constitutional provisions prohibiting interests:

With jurisdiction.

Section 14, Article VI - Members of Congress cannot personally appear as counsel; cannot be interested financially in any franchise or special privilege granted by government; cannot intervene in any matter before office of Government;

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Prohibited Interest

Public officer/ individual.

private

As to Scope territorial No territorial jurisdiction.

As to existence of Duty to intervene Duty to intervene is a With duty to intervene. contract necessary.

ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY Acts Punishable: (ATCANG) 1. By 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; and 4. By being otherwise Guilty of the misappropriation or malversation (embezzlement) of such funds or property. Common Elements to all Acts Malversation under Art. 217 (PCAA)

1. Offender is Public officer; 2. He had the Custody or control of funds or property by reason of the duties of his office; 3. Those funds or property were public funds or property for which he was Accountable; and 4. He Appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them. DOCTRINES:  Accountable officers are government officers whose duties require them to possess or be in custody of government funds or properties. They are in charge of the safekeeping of the funds or properties under their custody. Presidential Decree No. 1445 makes cashiers liable for the value of the money or property in their custody in case they were lost because of negligence or unlawful deposit, use, or application. (Gutierrez vs. COA, G.R. No. 200628, January 13, 2015)  It is the nature of the duties, not the relatively important name given to the office, which is the controlling factor in determining whether or not the accused is an accountable public officer. (U.S. vs. Velasquez, G.R. No. L10935, February 1, 1916)  A public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be

liable for malversation or illegal use of public funds or property if such public officer or private individual CONSPIRES with an accountable public officer to commit malversation or illegal use of public funds or property. (Barriga vs. Sandiganbayan, G.R. nos. 161784-86, April 26, 2005)  Government funds include not only revenue funds but also trust funds. (People vs. Ramos, C.A., 38 O.G. 817)  The provision applies to administrator or depositary of funds or property attached, seized, or deposited by public authority, even if such property belongs to a private individual. (People vs. De la Serna, C.A., 40 O.G. Supp. 12, 159)  Funds or property must be received in official capacity, a public officer having only a qualified charge of government property without authority to part with physical possession of it, unless upon order from his immediate superior, cannot be held liable for malversation. (US vs. Solis, G.R. No. 2828, December 14, 1906) Presumption of malversation: The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use (Quinon vs. People, G.R. No. 136462, September 19, 2002). Such may be rebutted. Presumption is deemed overthrown if the accountable public officer satisfactorily proves that not a single centavo of the missing funds was used by him for his personal interest. (Cabello vs. Sandiganbayan, G.R. No. 93885, May14, 1991)  Restitution of the amount or property where malversation is already committed does not affect his criminal liability, as payment is not one of elements of extinction of criminal liability, though, at most, payment of the amount malversed will serve as a mitigating circumstance. (Perez vs. People, G.R. No. 164763, February 12, 2008)  At the very moment when the shortage is discovered, the accountable officer is notified thereof and he at once presents the money,

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no prima facie evidence of the crime of

malversation can be established. (U.S. vs. Feliciano, G.R. No. 5623, February 3, 1910)  Demand merely raises a prima facie presumption that missing funds have been put to personal use. The demand itself, however, is not an element of, and not indispensable to constitute malversation. (Morong Water District vs. Office of the Deputy Ombudsman, G.R. No. 116754, March 17, 2000) The penalty for malversation in the provision is based on the amount involved, not on the amount of the damage caused to the government. (Reyes, The Revised Penal Code: Book Two, 2017, p.460) Lack of proof would affect only the civil liability. (People vs. Chavez, CA-G.R. No. 44398, October 16, 1936) Malversation vs. Estafa with Abuse of Confidence (OPMDD) Malversation (Art. 217)

Private funds/properties.

Offender is a public officer Offender is a private who is accountable for the individual or a public public funds/properties. officer not accountable for public funds/properties. As to the Means Employed Crime is committed by misappropriating, converting, or denying having received money, goods, or other personal property.

As to the presence of Damage No element of damage.

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There is damage.

Estafa

Qualified Theft

As to the Person of the offender Can be committed by public officers over public funds, except that in malversation, it cannot be committed against private property except for private property in custodia legis. As to offender’s Accountability Offender must Must NOT be Must not be be accountable accountable. accountable. over the funds. As to Qualification of each crime Taking of public funds is malversation if the public officer is accountable therefor.

Confidence (Art. 315)

As to the Person of the Offender

Crime is committed by appropriating, taking, or misappropriating or consenting or through abandonment or negligence, permitting any other person to take the public funds or properties.

Malversation

Estafa with Abuse of

As to the Object of the crime Public funds/properties.

Malversation, Estafa and Qualified Theft, distinguished (PAQ)

Taking of public funds is estafa if he has acquired juridical possession of it and took it with abuse of confidence or deceit.

If the offender who has mere physical or material possession took the property with abuse of confidence.

ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS Elements: (PuReFA) 1. The offender is a Public officer, whether in the service or separated therefrom; 2. He must be an Accountable officer for public funds or property; 3. He is required by law or regulation to Render accounts to the Commission on Audit, or to a provincial auditor; and 4. He Fails to do so for a period of two months after such accounts should be rendered. NOTES: Demand for accounting not necessary. It does not require that there be a demand by the Commission on Audit or provincial auditor that the public officer should render an account. It is sufficient that there is a law or regulation requiring him to render account. (Reyes, The Revised Penal Code: Book Two, 2017, p.461)

Resignation does not relieve the public officer from his responsibility to render accounts. Thus, he is criminally liable. (Estrada, Criminal Law Book Two, 2011)

 No technical malversation if there is no law or ordinance appropriating public funds or property for a particular purpose. (Abdulla vs. People, G.R. No. 150129, April 6, 2005)

It is not essential that there be misappropriation. If there is misappropriation, he would be liable also for malversation under Art. 217. (Reyes, The Revised Penal Code: Book Two, 2017, p.462)

 Public funds or property must be appropriated by law or ordinance for a particular purpose. (People vs. Montemayor, et al., G.R. No. L-17449, August 30, 1962)

ARTICLE 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY

 Authorization by DBM is not an ordinance or law contemplated in Art. 220.(Abulla vs. People, G.R. No. 150129, April 6, 2005)

Elements: (PAU) 1. Offender is a Public officer; 2. He must be an Accountable for public funds or property; and 3. He must have Unlawfully left (or be at the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled. NOTE: The act of leaving the country must be unauthorized or not permitted by law to be liable under this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.463) ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (TECHNICAL MALVERSATION) Elements: (PAPA) 1. Offender is a Public officer; 2. There are Public funds or property under his administration; 3. Such funds or property has been Appropriated by law or ordinance; and 4. He applies the same to Any public use other than for which such fund or property has been appropriated by law or ordinance. DOCTRINES:  A different penalty is imposed if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service.

 Criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular public purpose to another public purpose. (Ysidro vs. People, G.R. No. 192330, November 14, 2012) Technical Malversation vs. Malversation (PPA) Technical Malversation

Malversation

As to the Person of the Offender Offenders accountable officers.

are Offenders are accountable public public officers.

As to Profit from proceeds of the crime Does not derive any In certain cases, profits personal gain or profit. from the proceeds of the crime. As to where public fund is Applied for The public fund or Public fund or property is property is applied to applied to the personal use another public use. of the offender or another person.

ARTICLE 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY Acts Punishable: (FaRe) 1. Failing to make payment by a public officer who is under obligation to make payment from government funds in his hands or possession.

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Elements: (GUM) a. The public officer has Government funds in his possession; b. He is Under obligation to make payment from such funds; and c. He Maliciously fails to make the payment. 2. Refusal to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration. ARTICLE 222 OFFICERS INCLUDED IN THE PRECEDING PROVISIONS Private individuals who may be liable under Art. 217-221: a. Private individuals who, in any capacity whatsoever, have charge of any national, provincial or municipal funds, revenues, or property; and b. Administrator or depositary of funds or property, attached, seized or deposited by public authority, even if such property belongs to a private individual. NOTES: ● The words “administrator” and “depositary” include the sheriffs and receivers. Thus, if they misappropriate money or property under their custody, they are liable for malversation. (Reyes, The Revised Penal Code: Book Two, 2017, p.467) ● Judicial administrator appointed to administer the estate of a deceased person not included as “administrator” in the provision because he is not in charge of any property attached, impounded or placed in deposit by public authority. (Ibid.) ● In his capacity as public custodian of funds or properties that are attached or seized, said funds or properties are in custodia legis with the character of public properties. If the private person misappropriates said funds or properties, he is liable for Malversation. (Ibid.)

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ARTICLE 223 CONNIVING WITH OR CONSENTING TO EVASION Elements: (ConPCuEs) 1. The offender is a Public officer; 2. He had in his Custody or charge, a prisoner, either detention prisoner or prisoner by final judgment; 3. Such prisoner Escaped from his custody; and 4. He was in Connivance with the prisoner in the latter’s escape – this is an indispensable element of the offense. (US vs. Bandino, G.R. No. L-9964, February 11, 1915) Classes of Prisoners Involved: 1. Fugitive sentenced by final judgment to any penalty; and 2. Fugitive held only as detention prisoner for any crime or violation of any law or municipal ordinance. NOTES: ● In the existence and commission of the crime, it is essential that there should have been, on the part of the custodian, connivance in the escape of the prisoner. If the public officer charged with guarding the fugitive did not connive with him, then he did not violate the law and is not guilty of the crime of faithlessness in the discharge of his duty to guard the prisoner. ● Detention Prisoner – A person becomes a detention prisoner from the moment he is booked. This refers to the accomplishment of the booking sheet and filling out of a form where he is finger printed. From that time on, he is already a detention prisoner even if he is not yet incarcerated.  The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. (People vs. Lancanan, G.R. No. L-6805, June 30, 1954). Neither is mere leniency or laxity in the performance of duty constitutes of infidelity. (People vs. Evangelista, C.A., 38 O.G. 158)

 There is real and actual evasion of service of a sentence when the custodian, failing intentionally or maliciously to perform the duties of his office, and conniving with the prisoners, permits him to obtain a relaxation of his imprisonment and to escape the punishment of being deprived of his liberty, thus making the penalty ineffectual, although the convict may not have fled, and where the prisoner's leaving the jail and his evasion of service of the sentence were effected with the consent and tolerance of the custodian, or rather in agreement and connivance with him. (US vs. Bandino, G.R. No. 9964, February 11, 1915) ARTICLE 224 EVASION THROUGH NEGLIGENCE Elements: (PCP) 1. The 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; and 3. Such Prisoner escapes through his negligence. NOTES:  Not every negligence or distraction of a guard is penalized. It is only that positive carelessness that is short of deliberate nonperformance of his duties as guard that is the gravamen of the crime of infidelity under Art. 224 – May be dealt with administratively only. (People vs. Reyes, et al., C.A., 59 O.G. 6664)  The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation. (People vs. Quisel, C.A., 52 O.G. 6975)

ARTICLE 225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER Elements: (PCEC) 1. The offender is a Private person; 2. The conveyance or custody of a prisoner or person under arrest is Confided to him; 3. The prisoner or person under arrest Escapes; and 4. The offender Consents to the escape of the prisoner or person under arrest, or that escape takes place through his negligence. NOTE: Art. 225 is not applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested, but is liable under P.D. No. 1829. ARTICLE 226 REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS (INFIDELITY OR DESTRUCTION OF DOCUMENT) Elements: (PRED) 1. Offender is a Public officer; 2. He Removes, destroys, or conceals documents or papers; (destroying or concealing does not require proof of illicit purpose) 3. Such documents or papers should have been Entrusted to such public officer by reason of his office; and 4. Damage, whether serious or not, to a third party or to the public interest should have been caused. NOTES:

If the fugitive is serving sentence by reason of final judgment, he is liable for evasion of the service of sentence under Art. 157; or

● The public officer must officially be entrusted with the documents or papers and the document must be complete and one which a right could be established or an obligation could be extinguished. (People vs. Camacho, G.R. No. 18688, February 10, 1923).

If the fugitive is only a detention prisoner, he does not incur criminal liability. (Reyes, The Revised Penal Code: Book Two, 2006, p.453)

 A document is a written instrument by which something is proven or made of record. A package containing a book, sent through mail

Liability of escaping prisoner:

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by C.O.D. System, is not a document. (People vs. Agnis, G.R. No. 19676, February 7, 1923)

crime is committed. (Reyes, The Revised Penal Code Book Two, 2011, pp. 460)

 The removal must be for an illicit purpose (Manzanaris vs. People, G.R. No. L–64750, January 30, 1984). It is for an illicit purpose when the intention of the offender is: a. To tamper with it; b. To profit by it; or c. To commit an act constituting a breach of trust in the official care thereof. (Kataniag vs. People, G.R. No. 48398, November, 28, 1942)

Damage or intent to cause damage is not necessary.

 Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished. (Kataniag vs. People, G.R. No. 48398, November. 28, 1942) ● Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose. (Reyes, The Revised Penal Code: Book Two, 2017, p.480)  Delivering the document to the wrong party is infidelity in the custody thereof. (People vs. Irineo, C.A., 53 O.G. 2827) ● Other possible crimes: Malversation – if object (money) becomes part of public funds. ARTICLE 227 OFFICER BREAKING SEAL

ARTICLE 228 OPENING OF CLOSED DOCUMENTS Elements: (PEOD) 1. Offender is a Public officer; 2. Any closed papers, documents or objects are Entrusted to his custody (by reason of office); 3. He Opens or permits to be opened said closed papers, documents, or objects; and 4. He Does not have the proper authority. NOTE:  Damage or intent to cause damage is not an element of the offense. (Reyes, The Revised Penal Code: Book Two, 2006, p.462)  The closed documents must be entrusted to the custody of the accused by reason of his office. (People vs. Lineses, C.A. 40 O.G., Supp. 14, 4773) ARTICLE 229 REVELATION OF SECRETS BY AN OFFICER Acts Punishable (RD) 1. By Revealing any secrets, known to the offending public officer by reason of his official capacity.

Elements: (PSPB)

Elements: (PKRC)

1. Offender is a Public officer; 2. He is charged with the custody of Sealed papers or property; 3. These papers or property are sealed by Proper authority; 4. He Breaks the seals or permits them to be broken.

1. The offender is a Public officer; 2. He Knows of a secret by reason of his official capacity; 3. That he Reveals such secret without authority or justifiable reasons; and 4. The damage, great, or small, be Caused to the public interest.

NOTE: It is the breaking of the seal, not the opening of a closed envelope, which is punished under this article. Breaking should not be interpreted in a literal sense. Even if the seal is not broken because the custodian opened the document by slicing open the side of the envelop and closing it after reading the contents, the

2. By Delivering wrongfully papers or copies of papers of which he may have charged and which should not be published.

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Elements: (PuWro PuCNoT) 1. The offender is a Public officer; 2. He has Charge of the papers;

3. Those papers should Not be published; 4. He delivers those paper or copies thereof to a Third person; 5. The delivery is Wrongful; and 6. Damage caused to Public interest. NOTES:

The papers contain The papers do not contain secrets and therefore secrets but their removal is should not be published, for an illicit purpose. and the public officer having charge thereof removes and delivers them wrongfully to a third person.

● The "secrets" referred to in this article are those which have an official or public character, the revelation of which may prejudice public interest. They refer to secrets relative to the administration of the government and not to secrets of private individuals (Reyes, The Revised Penal Code Criminal Law Book Two, 2017, p. 485).

(Reyes, The Revised Penal Code: Book Two, 2006, p.464)

● This article punishes minor official betrayals, infidelities of little consequence, affecting usually the administration of justice, execution or official duties, or the general interest of the public order. (Reyes, The Revised Penal Code: Book Two, 2017, p.485)

1. The offender is a Public officer; 2. He Knows of the secrets of a private individual by reason of his office; and 3. He Reveals such secrets without authority or justifiable reasons.

● Charge means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article. (Ibid.) ● Damage is essential to the act committed. (Reyes, The Revised Penal Code: Book Two, 2017, p.486) ● It shall be unlawful for any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under Human Security Act of 2007. (Sec. 46, R.A. No. 9372) Distinguished from infidelity in the custody of document or papers by removing the same Revelations of secrets by an officer

Infidelity in the custody of documents or papers by removing the same

As to the Contents of the Paper

ARTICLE 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL Elements: (PKR)

NOTES: ● Revelation to one person is sufficient, for public revelation is not required. (Reyes, The Revised Penal Code: Book Two, 2017, p.487) ● Damage to private individual is not necessary. The reason of this provision is to uphold faith and trust in public service. (Ibid.) ● The reason for this provision is to uphold public faith and trust in public service. (Ibid.) Other possible crimes: 1. Betrayal of Trust by an Attorney or Solicitor (Art. 209) - if committed by an Attorney or Solicitor. 2. Discovering Secrets through Seizure of Correspondence (Art. 290) or Revealing Secrets with Abuse of Office (Art. 291) – if committed by a private individual. ARTICLE 231 OPEN DISOBEDIENCE Elements: (JEJ-JuRe) 1. Offender is a Judicial or Executive officer; 2. There is a Judgment, decision or order of a superior authority; 3. Such judgment, decision or order was made within the scope of the Jurisdiction of the

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superior authority and issued with all the legal formalities; and 4. Offender, without any legal justification, openly Refuses to execute the said judgment, decision or order which he is duty bound to obey. NOTE: Open disobedience is committed when judicial or executive officer shall openly refuse to execute the judgment, decision, or order of any superior authority. (Reyes, The Revised Penal Code: Book Two, 2017, p.489) ARTICLE 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER, WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER Elements: (POSDD) 1. Offender is a Public officer; 2. Order is issued by his superior officer for execution; 3. He has for any reason Suspended the execution of such order; 4. His superior Disapproves the suspension of the execution of the order; and 5. The offender Disobeys his superior despite the disapproval of the suspension. If the order of the superior is illegal, the subordinate has a legal right to refuse to execute such order, for under the law, obedience to an order which is illegal is not justified and the subordinate who obeys such order may be held criminally liable. (Art. 11[6]) ARTICLE 233 REFUSAL OF ASSISTANCE Elements: (PCFaM)

● There must be demand from competent

authority. (Reyes, The Revised Penal Code: Book Two, 2006, p.468)

ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE Elements: (ERN) 1. Offender is Elected by popular election to a public office; 2. He Refuses to be sworn in or discharge the duties of said office; and 3. There is No legal motive for such refusal to be sworn in or to discharge the duties of said office. NOTE: Refusal to discharge the duties of an appointive office is not covered by Art. 234.

(Reyes, The Revised Penal Code: Book Two, 2006, p.470) ARTICLE 235 MALTREATMENT OF PRISONERS Elements: (PUM) 1. Offender is a Public officer or employee; 2. He has Under his charge a prisoner or detention prisoner; 3. He Maltreats such prisoner in either of the following manners: (OM) a. By Overdoing himself in the correction or handling of a prisoner of detention prisoner under his charge either: (ImIn) i. By the Imposition of punishment not authorized by the regulations, or ii. By Inflicting such punishment (those authorized) in a cruel and humiliating manner; or b. By Maltreating such prisoner to extort a confession or to obtain some information from the prisoner.

1. Offender is a Public officer; 2. Competent authority demands from the offender that he lends his Cooperation towards the administration of justice or other public service; and 3. Offender Fails to do so Maliciously.

Higher Penalty: If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner.

NOTES:

Person to commit the crime:

● Damage to public interest or to a third party is essential. (Reyes, The Revised Penal Code: Book Two, 2006, p.469)

Not all public officers or employees may commit this crime. This crime can be committed only by public officers charged with the custody of

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prisoner. If the public officer is not the custodian of the prisoner he commits physical injuries. (Reyes, The Revised Penal Code: Book Two, 2006, p.471) Examples of punishments that are not authorized: 1. 2. 3. 4. 5.

Drinking urine; Eating earthworm; Water cure; Public stoning; Hanging of a sign on a prisoner’s neck saying, "I am an illegal recruiter.”

Punishments that are authorized: 1. Incarceration in isolation; 2. Putting iron balls on the legs of a convict. Prisoner refers to a detention prisoner or a person against whom the court has accomplished a detention mittimus. A person becomes a detention prisoner the moment he is brought to the police station and he is booked by the police authorities and is made to fill out a form with his fingerprints taken. From that time on, he becomes a detention prisoner. After the accused is arrested and brought to the jurisdiction of the court, the accused is also made to fill out a form, his fingerprints taken and the court issues a detention mittimus addressed to the jail warden that the accused is detained by orders of the court. After the booking, the accused becomes a detention prisoner even if he is not yet put behind bars. R.A. No. 9745 – Anti Torture Act of 2009 – See further discussions in Special Penal Laws. TWO-TIERED PENALTY It occurs when the law provides that a penalty to a particular crime is in addition to the penalty imposable for another crime committed which results from the commission of such particular crime such as:

medium period to prision mayor in its minimum period, in addition to his liability for the physical injuries shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention officer under his charge. 2. Direct Bribery (Art. 210) – any public officer who shall agree to perform an act constituting a crime in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its minimum and medium periods and a fine of not less than three times the value of the gift, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. 3. Occupation of real property or usurpation of real rights in property (Art. 312) – any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another, in addition to the penalty incurred for the acts of violence executed by him shall be punished by a fine from 50 to 100 per centum of the gain which he shall have obtained, but not less than 75 pesos. NOTES: ● Offender may also be liable for physical injuries or damage caused, if any is caused by his maltreating the prisoner. (Reyes, The Revised Penal Code: Book Two, 2017, p.494) ● There is no complex crime of maltreatment of prisoners with serious or less serious physical injuries. (Ibid.) ● Offended party must be a convict by final judgment or detention prisoner. (Reyes, The Revised Penal Code: Book Two, 2017, p.493)

1. Maltreatment of Prisoners (Art. 235) – the penalty of prision correccional in its

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ARTICLE 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE Elements: (ESAN) 1. Offender is Entitled to hold a public office or employment either by election or appointment; 2. The law requires that he should first be Sworn in and/or give a bond; 3. He Assumes the performance of duties and powers of such office; and 4. He has Not taken his oath and/or given the bond required by law. ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS Elements: (PEC) 1. Offender is holding a Public office; 2. Period provided by law, regulations or special provisions for holding such office, has already Expired; and 3. Offender Continues to exercise such duties and powers of such office. NOTE: A public officer who has been suspended, separated, declared overage, or dismissed cannot continue to perform the duties of his office. (Reyes, The Revised Penal Code: Book Two, 2017, p.495) ARTICLE 238 ABANDONMENT OF OFFICE OR POSITION Elements: (PReNA) 1. The offender is a Public officer; 2. He formally Resigns from his position; 3. His resignation has Not yet been accepted; and 4. He Abandons his office to the detriment of the public service. NOTES: 1. There must be a written or formal resignation. 2. When Qualified—Such office shall have been abandoned in order to evade the discharge of the duties of preventing,

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prosecuting or punishing any of the crimes falling within Title One, and Chapter One of Title Three of Book Two of RPC (treason, espionage). (Reyes, The Revised Penal Code: Book Two, 2017, p.496) Abandonment of Office vs. Negligence and Tolerance in Prosecution of Offense (OA) Abandonment of Office (Art. 238)

Negligence and Tolerance in Prosecution of Offense (Art. 208)

As to the Person of the Offender Committed by any public Committed only by public officer. officers who have the duty to institute prosecution for the punishment of violations of the law. As to Abandonment of Office The public officer abandons his office to evade the discharge of his duty.

The public officer does not abandon his office but he fails to prosecute an offense by dereliction of duty or by malicious tolerance of the commission of offenses.

(Reyes, The Revised Penal Code: Book Two, 2006, p.475)

ARTICLE 239 USURPATION OF LEGISLATIVE POWERS Elements: (EJ-MAS) 1. Offender is an Executive or Judicial officer; and 2. He either: a. Makes general rules or regulations beyond the scope of his authority; b. Attempts to repeal a law; or c. Suspends the execution thereof. ARTICLE 240 USURPATION OF EXECUTIVE FUNCTIONS Elements: (JOA) 1. Offender is a Judge; and 2. He either:

a. Assumes a power pertaining to the executive authorities; or b. Obstructs the executive authorities in the lawful exercise of their functions. NOTE: Legislative officers are not covered. (People vs. Hilvano, G.R. No. L-8583, July 31, 1956) ARTICLE 241 USURPATION OF JUDICIAL FUNCTIONS Elements: (EAO) 1. Offender is an officer of the Executive branch of the Government; and 2. He either: a. Assumes judicial powers; or b. Obstructs the execution of any order or decision rendered by any judge within his jurisdiction. NOTE: Legislative officers are not covered. (Id.) ARTICLE 242 DISOBEYING REQUEST FOR DISQUALIFICATION Elements: (PuP-Q-LaC) 1. Offender is a Public officer; 2. A Proceeding is pending before such public officer; 3. There is a Question brought before the proper authority regarding his jurisdiction which is not yet decided; 4. He has been Lawfully required to refrain from continuing to proceed; and 5. He Continues the proceeding. ARTICLE 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY Elements: (EAR) 1. Offender is an Executive officer; 2. He Addresses any order or suggestion to any judicial authority; and 3. The order or suggestion Relates to any case or business coming within the exclusive jurisdiction of the courts of justice.

NOTE: Legislative and judicial officers are not covered. (Reyes, The Revised Penal Code: Book Two, 2017, p.501) ARTICLE 244 UNLAWFUL APPOINTMENTS Elements: (PuNLaK) 1. The offender is a Public officer; 2. He Nominates or appoints a person to public office; 3. Such person Lacks the legal qualifications therefor; 4. Offender Knows that his nominee or appointee lacks the qualifications at the time he made the nomination or appointment. NOTES: ● Mere recommendation even if with knowledge that the person recommended is not qualified is not a crime. He must nominate the person not qualified. (Reyes, The Revised Penal Code: Book Two, 2006, p.480) ● There must be a law providing for the qualifications of a person to be nominated or appointed to a public office. (Ibid.) ARTICLE 245 ABUSES AGAINST CHASTITY Elements: (PI-IC- DSWR) 1. The offender is a Public officer; 2. He solicits or makes Immoral or indecent advances to a woman; and 3. Such 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 to or consult with a superior officer; 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; c. The Wife, Daughter, Sister, or Relatives within the same degree by affinity of the person in the custody of the offender. (exclusive enumerations)

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Ways of chastity:

committing

abuses

against

1. By soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer. 2. By soliciting or making immoral or indecent advances to a woman under the offender’s 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.

ARTICLE 246 PARRICIDE Elements: (PA- FaM-C-LADLeS) 1. A Person is killed; 2. The deceased is killed by the Accused; and 3. The deceased is the Father, Mother, or Child, legitimate or illegitimate, or a Legitimate other Ascendant, or other Descendants, or the Legitimate Spouse, of the accused. NOTES: ●

NOTES: ●

●

Mere solicitation or making immoral or indecent advances consummates the crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.503) To solicit means to propose earnestly and persistently something unchaste and immoral to a woman. (Ibid.) Proof of solicitation is not necessary when there is sexual intercourse. (US vs. Morelos, G.R. No. 9768, February 15, 1915) Offended here is a woman because chastity under the code refers to a female. (Reyes,

The Revised Penal Code: Book Two, 2006, ●

●

p.481) The mother of the person in the custody of the offender is not included.

G. CRIMES AGAINST PERSONS (ARTICLES 246-266)

Penal Code Criminal Law Book Two, 2017, p. 506). ●

Determining the intent to kill ● 1. The means used by the malefactors; 2. The nature, location, and number of wounds sustained by the victim; 3. The conduct of the malefactors before, during, or immediately after the killing of the victim; and 4. The circumstances under which the crime was committed and the motives of the accused. (Ibanez vs. People, G.R. No. 190798, January 17, 2016)

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The law mentions “father, mother, or child, whether legitimate or illegitimate.” As a rule, only relatives by blood may be legitimate or illegitimate. On the other hand, the “ascendants or descendants” must be legitimate. They, too, must be relatives by blood. Adoptive father, adopted son, fatherin-law, and son-in-law is thus not included in the provision. (Reyes, The Revised Penal Code: Book Two, 2017, p. 507) The rule of conspiracy that the act of one is the act of all does not apply here because of the personal relationship of the offender and the offended party. Hence, a stranger who cooperates is not liable for parricide but rather for murder or homicide as the case may be. (People vs. Echaluce, et. al., G.R. No. L29776, August 27, 1975) The law does not require that the offender has knowledge of such relationship; the fact of having such is enough to convict him with the crime of parricide (Reyes, The Revised

●

In cases of parricide, if the deceased is either the father, mother, or the child of the accused, proof of legitimacy is not required. (People vs. Ignacio, G.R. No. 107801, March 26, 1997) Killing of grandparent or grandchild should be legitimate for the accused to be charged with the crime of parricide. Otherwise, it should be homicide or murder. (Estrada, Criminal Law Book Two, 2011) Killing of a brother/sister or any relative who has collateral relationship with the accused does not include in the definition of parricide. (Id.) The deceased child must not be less than three days old, otherwise, the crime is infanticide. (Art. 255)

●

In the killing of the spouse, there must be a valid subsisting marriage at the time of killing. Hence, the killing of an illegitimate spouse is not parricide. (People vs. Subano, G.R. No. 48143, September 30, 1942) There is no parricide if he kills his other wives although recognized as valid marriage under Muslim laws. Only the killing of his first wife will prosper as parricide. (Estrada, supra) The fact that the wife was not shot in a vital part of her body does not negate intent to kill on the part of husband. The extent of the injuries sustained by the wife manifest the intention to extinguish her life. (People vs. Nepomuceno, G.R. No. 127818, November 11, 1998) The issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case (not a prejudicial question). (Pimentel vs. Pimentel, G.R. 172060, September 13, 2010)

Parricide through reckless imprudence. ●

●

Husband, who, while struggling for the possession of the gun with his children, without intent to kill anyone, pulled the trigger of the gun which exploded and hit his wife who was approaching them, is guilty of parricide through reckless imprudence. (People vs. Recote, G.R. No. L-5801-02, March 02, 1955) Parricide through reckless imprudence is punished by arresto mayor in its maximum period to prison correctional in its medium period. If committed through simple imprudence or negligence, the penalty is arresto mayor in its medium and maximum period. (Art. 365 in relation to Art. 246) ARTICLE 247 DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES

Elements: (SuKiNo) 1. Legally married person or a parent who Surprises his spouse or daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person; 2. He/she Kills any or both of them or inflicts upon any or both of them any serious

physical injury in the act or immediately thereafter; and 3. He has Not either promoted or facilitated the prostitution of his wife or daughter, or he or she has not consented to the infidelity of the other spouse. (People vs. Gelaver, G.R. No. 95357, June 9, 1993) The surprising must be at the moment the sexual act is taking place. If it is only about to take place or has already taken place, no benefit can be availed of under this Article. It is the erring spouse, who must be surprised and not the innocent spouse, otherwise, the latter should have perfect timing so that he or she should be surprised at the very moment the intercourse is taking place. The law said, “surprised his spouse in the act,” and not “was surprised.” “Immediately thereafter” applies to the killing. The killing must be at the time of surprising the paramours in the act or immediately after. If there was a time lag between the surprising and the killing, it must be shown that the surprising and the killing are one continuous sequence. (US vs. Alano, G.R. L-11021, December 1, 1915) Two stages must be met before the benefit of this provision may be invoked: 1. Accused surprised his spouse or daughter under 18 years old and living with him; and 2. He inflicted serious physical injuries or killed the spouse or paramour during sexual intercourse or immediately thereafter. (Art. 247, RPC) NOTES: ●

The provision does not define and penalize a felony. It is rather an absolutory cause which provides for the imposition of destierro rather than the ordinary penalty for parricide. The vindication of a man’s honor is justified because of the scandal an unfaithful wife creates. (People vs. Talisic, G.R. No. 97961, September 5, 1997) In Art. 247, destierro is not intended as a penalty but a means to remove the accused from the vicinity, for his protection against possible

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● ●

●

reprisal from the family or relatives of the other spouse or those of the paramour or mistress. (People vs. Lauron, 57 O.G. 7367) The law only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. (People vs. Abarca, G.R. No. L-74433, September 14, 1987) Sexual intercourse must be actual. This does not include preparatory acts. Mere sleeping together on the bed is not included. (People vs. Bituanan, G.R. No. 34510, August 31, 1931) By raising Art. 247 as a defense, the accused waives his constitutional presumption of innocence and has the burden of proving its elements. (People vs. Puedan, G.R. No. 139576, September 2, 2002) Parents may be legitimate/ illegitimate. (Reyes, The Revised Penal Code: Book Two, 2017, p.511) Parents who shall kill or inflict serious physical injuries upon their daughters under 18 years of age and their seducers, while the daughters are living with their parents. If the crime happened in the boarding house of their daughter, Art. 247 does not apply. (Id.) Inflicting death under exceptional circumstances is not murder. Therefore, the accused cannot be held liable for injuries sustained by third persons as a result thereof. (People vs. Abarca, G.R. No. 74433, September 14, 1987) ARTICLE 248 MURDER

Elements: (PAQN) 1. A Person was killed; 2. The Accused killed him; 3. The killing was attended by any of the following Qualifying circumstances mentioned in Art. 248: (TC3GE) a. 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. b. In Consideration of a price, reward, or promise. c. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a

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street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving Great waste and ruin. d. On occasion of any of the Calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. e. With Evident premeditation. f. With Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

(Note: see discussion under Aggravating Circumstances for a detailed discussion of each qualifying circumstance.) 4. The killing is Neither parricide nor infanticide. Rules to qualify the killing to murder: 1. Murder will exist with only one of the circumstances described in Art. 248. When more than one of said circumstances are present, the others must be considered as generic aggravating circumstances. (People vs. Dueño, G.R. No. L–311202, May 5, 1979) 2. When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. (People vs. Sespeñe, et al., G.R. No. L–9346, October 30, 1957) Treachery and evident premeditation is inherent in murder by means of poison, hence, not aggravating. 3. Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information. (People vs. Aquino, G.R. Nos. 144340-42, August 6, 2002) NOTES: ●

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Dismemberment of a dead body is one manner of outraging or scoffing at the corpse of the victim, and qualifies the killing to murder. (People vs. Guillermo, G.R. No. 147786, January 20, 2004) The use of loose firearm, when inherent in the commission of the crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance. (Sec. 29, R.A. No. 10591)

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Killing of a child is murder even if the manner of attack was not shown. (People vs. Valerio, G.R. No. L- 4116, February 25, 1982) HOWEVER, the crime would be infanticide if the child is less than three days of age (72 hours). (Art. 255) Where the wound inflicted on the victim is not sufficient to cause his death, the crime is only attempted murder, since the accused did not perform all the acts of execution that would have brought about death. (People vs. Lacaden, G.R. No. 187682, November 25, 2009) ARTICLE 249 HOMICIDE

Elements: (KWIQ) 1. A person was Killed; 2. That the accused killed him Without any justifying circumstance; 3. The accused had the Intention to kill, which is presumed; and 4. The killing was not attended by any of the Qualifying circumstances of murder, parricide, or infanticide. NOTES: ● When death resulted, even if there is no intent to kill, the crime is homicide. The penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. (U.S. vs. Gloria, G.R. No. 1509, February 16, 1904) ● Intent to kill is conclusively presumed when death results, evidence of intent to kill is important only in attempted or frustrated homicide. (Yapyuco vs. Sandiganbayan, G.R. No. 120744–46, June 25, 2012) ● In attempted or frustrated homicide, there is intent to kill. If there is none, the offender is only liable for physical injuries. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide, as the law punishes the result and not the act. ● Intent to kill is usually shown by the kind of weapon used and part of the body wounded. (Reyes, The Revised Penal Code: Book Two, 2017, p.526) ● Where murder or homicide results from the use of an unlicensed firearm, xxx the use of such is not considered a separate crime but

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●

shall be appreciated as a mere aggravating circumstance. (People vs. Avecilla, G.R. No. 117033, February 15, 2001) If victim is under 12 years old, the penalty is reclusion perpetua. (Sec. 10, R.A. No. 7610) Corpus Delicti – means the actual commission of the crime charged. It does not refer to the body of the murdered person. (People vs. Taruc, et al, G.R. No. L–18308, April 30, 1966) No offense of frustrated homicide through imprudence/negligence. The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. (People vs. Castillo, et al., C.A. No. 227, February 1, 1946) In all crime against persons in which the death of the victim is an element of an offense, there must be satisfactory evidence of (1) the fact of death, and (2) the identity of the victim. (Reyes, The Revised Penal Code: Book Two, 2017, p.528) ARTICLE 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER, OR HOMICIDE

The application of Art. 250 is permissive, not mandatory. (Angeles vs. People, G.R. No. 172744, September 29, 2008) ARTICLE 251 DEATH CAUSED IN A TUMULTUOUS AFFRAY Elements: (SO-QACT-KCI) 1. There are Several persons; 2. They did not compose groups Organized for the common purpose of assaulting and attacking each other reciprocally; 3. These several persons Quarreled and Assaulted each other in a Confused and Tumultuous manner; 4. Someone was Killed in the course of the affray; 5. It Cannot be ascertained who actually killed the deceased; and 6. The person or persons who inflicted serious physical injuries or used violence upon the person of the victim can be Identified. (People vs. Julianda, G.R. No. 128886, November 23, 2001)

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Persons liable: a. Person/s who inflicted serious physical injuries. b. If unknown, all the persons who used violence upon the person of the victim, but with lesser liability. NOTES: ●

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Tumultuous Affray – a melee or free-forall, where several persons not comprising definite or identifiable groups attack one another in a confused and disorganized manner resulting in the death or injury of one or some of them. (People vs. Campa, G.R. No. 105391, February 28, 1994) This exists when at least four persons took part. There is no crime of death in a tumultuous affray if there was no confusion and the quarrel was between two well-known groups. (People vs. Corpuz, G.R. No. L-36234, February 10, 1981) The crime is homicide or murder, as the case may be. When the quarrel is between a distinct group of individuals, one of whom was sufficiently identified as the principal author of the killing, as against a common, particular victim, it is not a “tumultuous affray” within the meaning of Art. 251 of the RPC. (People vs. Unlagada, G.R. No. 141080, September 17, 2002) In such a case, the crime committed is homicide. The person killed need not be a participant in the affray. (Reyes, The Revised Penal

NOTES: ● The injured party must be one of the participants in the tumultuous affray. (Reyes, The Revised Penal Code: Book Two, 2017, p.535) ● Penalty is one degree lower than that for the physical injury inflicted; such penalty is public censure (Art. 71); only the one who used violence is liable. (Id.) ● Legislature intended to exclude slight physical injuries, this provision only refer to serious physical injuries and less serious physical injuries. (Ibid.) ● If the one who caused physical injuries are known/identified, he will be liable for physical injuries actually committed. (Id.) ARTICLE 253 GIVING ASSISTANCE TO SUICIDE Acts Punishable: (ANDoK) 1. By Assisting another to commit suicide, whether the suicide be consummated or Not; and 2. By lending his assistance to another to commit suicide to the extent of Doing the Killing himself. NOTES: ● ●

Code Book Two, 2011, pp. 511)

ARTICLE 252 PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY

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Elements: (TuSuCK) ● 1. There is a Tumultuous affray; 2. A participant or some participants thereof Suffer serious physical injuries or physical injuries of a less serious nature; 3. The person responsible therefor Cannot be identified; and 4. All those who appear to have used violence upon the person of the offended party are Known.

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Offender is still liable even if the suicide is not consummated. A person who attempt to commit suicide is not criminally liable because society considers him as an unfortunate being who deserved pity rather than of penalty. (Reyes, The Revised Penal Code: Book Two, 2017, p.536) Euthanasia or Mercy-Killing is not considered as lending assistance to suicide. It is the practice of painlessly putting a person suffering from some incurable disease to death. (Ibid.) The penalty for giving assistance to suicide if the offender is the father, mother, child or spouse of the one committing suicide is the same since the law does not distinguish. (Ibid.) A pregnant woman, who tried to commit suicide by means of poison, but instead of dying, the fetus in her womb was expelled, is not liable for abortion. Under our law, in order to incur criminal liability for the result not intended, one must be committing a

felony. An attempt to commit suicide is not punishable by law. (Ibid.) ARTICLE 254 DISCHARGE OF FIREARMS Elements: (DiNo) 1. The offender Discharges a firearm against or at another person; and 2. The offender had No intention to kill that person. NOTES: ● It is not applicable to police officers in the performance of their duties. (U.S. vs. Samonte, G.R. No. L-4200, March 27, 1908) ● If in the discharge of firearm, the offended party is hit and wounded, there is complex crime of Discharge of Firearm with Serious or Less Serious Physical Injuries (People vs. Arquiza, G.R. Nos. 42128–42129, December 19, 1935), but if only slight physical injuries were inflicted, there is no complex crime, since such physical Injuries constitute a light felony. ● The crime is discharge of firearm even if the gun was not pointed at the offended party when it was fired, without intent to kill, as long as it was initially aimed by the accused at or against the offended party. (People vs Ramirez, C.A. 46 O.G. 6119) ● Intent to kill cannot be automatically drawn from the mere fact that the use of firearms is dangerous to life. The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt. Absent an intent to kill in firing the gun towards the victim, petitioner should be held liable for the crime of illegal discharge of firearm under Art. 254 of the RPC. (Dado vs. People, G.R. No. 131421, November 18, 2002) Other Possible Crimes: 1. Frustrated Discharge – if firearm’s trigger was pressed but did not fire; 2. Illegal Discharge with Physical injuries – if victim was wounded; and 3. Alarms and Scandal – if not directed to a person.

ARTICLE 255 INFANTICIDE The deceased child was Less than 3 days (72 hours) of age; and The fetus must be viable or breathing on its own; otherwise, the crime is not infanticide but abortion. If the fetus had an intra-uterine life of less than seven (7) months and it was killed within 24 hours after complete separation from the womb, it did not gain personality. Hence, it is still abortion. (People vs. Paycana, Jr, G.R. No. 179035, April 16, 2008) NOTES: ●

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The crime is predicated not on the relation of the offender and the offended party, but rather on the age of the latter (Reyes, The Revised Penal Code Criminal Law Book Two, 2017, p. 540). HOWEVER, the crime would be parricide if the child is 3 days old or older and the accused is the father, mother, whether legitimate or illegitimate, or other legitimate ascendant; and murder if the accused is a stranger. (People vs. Dela Cruz, G.R. No. 175929, December 16, 2008) No crime of infanticide is committed if the child has been dead or if, although born alive, it could not sustain an independent life when it was killed. (U.S. vs. Aquino, G.R. No. 11653, August 19, 1916) When infanticide is committed by the mother or maternal grandmother of the victim in order to conceal the mother’s dishonor, such fact is only MITIGATING. (Reyes, The Revised Penal Code: Book Two, 2006, p.520) Penalty is that of parricide if the father, mother or legitimate grandparents kills the child; or that of murder if a stranger cooperates with the mother in killing the child. (Reyes, The Revised Penal Code: Book Two, 2006, p.519) ARTICLE 256 INTENTIONAL ABORTION

Elements: (P-VAD-FI) 1. There is a Pregnant woman; 2. That either Violence is exerted, or Drugs or beverages administered, or that the accused otherwise Acts upon such pregnant woman;

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3. As a result of the violence, drugs, beverage or any other act of the accused upon her, the Fetus dies, either in the womb or after having been expelled therefrom; and 4. The abortion is Intended. Abortion – the willful killing of the fetus in the uterus, or the violent expulsion of fetus from the womb which results in the death of the fetus. (Reyes, The Revised Penal Code: Book Two, 2017, p.543) Ways of committing: 1. By using any violence upon the person of a pregnant woman; 2. By acting, without using violence and without the consent of the woman, by administering drugs or beverages upon such pregnant woman without her consent; and 3. By acting, with the consent of the pregnant woman, by administering drugs or beverages.

(Reyes, The Revised Penal Code: Book Two, 2006, p.523) ARTICLE 257 UNINTENTIONAL ABORTION

Elements: (PVInFed) 1. There is a Pregnant woman; 2. Violence is used upon her without intending an abortion; 3. The violence is Intentionally exerted; and 4. As a result of the violence, the Fetus dies, either in the womb of the mother or after having been expelled therefore. NOTES: ● ●

Persons liable: 1. The person who intentionally causes the abortion (Art. 256); and 2. The pregnant woman if she consented (Art. 258).

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NOTES: ●

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As long as the fetus dies as a result of the violence used or the drugs administered, the crime of abortion exists, even if the fetus is over or less than 6 months, or is full term. (Reyes, The Revised Penal Code: Book Two, 2017, p.543) If the fetus could sustain an independent life (the fetus must have an intrauterine life of not less than 7 months) after its separation from the maternal womb and it is killed, the crime is infanticide, not abortion. (People vs. Detablan, C.A. 40 O.G. Supp. 5, 30) Abortion vs. Infanticide Abortion

Infanticide

As to Ability to Sustain Life Fetus is still drawing life Victim is already a from its mother, and is person. The umbilical not yet breathing on its cord is already cut and own. the infant is breathing on its own.

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The law employs the word “violence,” that is, actual physical force. There is a complex crime of Parricide (or Murder, as the case may be) with unintentional abortion when the offender, with violence, kills the pregnant woman, thus occasioning the death of the fetus. (People vs. Villanueva, G.R. No. 138364, October 15, 2003). Even though it was not the criminal intent of the defendant to cause the abortion, the fact that, without any apparent reason whatever, he maltreated the victim, presumably not knowing that she was pregnant, he is liable not only for such maltreatment but also for the abortion. (U.S. vs. Jeffrey, G.R. No. 5597, March 5, 1910) But the more decisive factor is that it being established by the prosecution itself that the victim being then only about two months pregnant, and in the absence of a definite proof that offender knew of the pregnancy, for the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. (People vs. Carnaso, C.A., 61 O.G. 3623)

Other Possible Crimes: 1. Light threats – if only intimidation was used 2. Complex crime of Murder (or Parricide) with unintentional Abortion, if the pregnant woman was killed with intent to abort.

Intentional Abortion vs. Unintentional Abortion (VPDoCu) INTENTIONAL ABORTION

UNINTENTIONAL ABORTION

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As to Presence of Violence With or without violence With

(Art. 256).

physical

(Art. 257).

violence

As to the Person of the Offender By another person or by By any person other than the pregnant woman the pregnant woman herself (Art. 256). herself. As to Offender’s Knowledge of the Pregnancy Offenders knows of the Offender may or may not pregnancy of the woman. know of the pregnancy. (U.S. vs. Jeffrey, G.R. No. The decisive factor is that 5597, March 5, 1910) being established by the prosecution itself. (People

vs. Carnaso, C.A., 61 O.G. 3623)

As to Presence of Dolo or Culpa There is ALWAYS dolo.

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There is either dolo or culpa.

ARTICLE 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS Elements: (AIC) 1. There is a pregnant woman who has suffered an Abortion; 2. The abortion is Intended; and 3. The abortion is Caused by: (HOP) a. The pregnant woman Herself: b. Any Other person with her consent; c. Any of her Parents, with her consent, for the purpose of concealing her dishonor.

ARTICLE 259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES Elements of Abortion Practiced by Physician or a midwife: (PrePAMIn)

The provision covers three (3) cases: o Abortion committed by the woman upon herself or by any other person with her consent (par. 1) o Abortion by the woman upon herself to conceal her dishonor (par. 2) o Abortion by any of the parents of the woman with the latter’s consent to conceal her dishonor. (par. 3)

1. There is a Pregnant woman who has suffered an abortion; 2. The abortion is Intended; 3. The offender, who must be a Physician or Midwife, causes or assists in causing the abortion; and 4. The physician or midwife takes Advantage of their scientific knowledge or skill. Elements of Abortion Pharmacist: (PANo)

Practiced

1. Offender is a Pharmacist; 2. There is No proper prescription from a physician; and 3. Offender dispenses any Abortive. Persons liable: 1. Physician or midwife 2. Pharmacist NOTES: ▪

NOTES: ●

Under a and b above, the woman is liable under Art. 258 (Abortion practiced by the woman herself); while the other person under b is liable under Art. 256 (Intentional Abortion). If the purpose of the parents was not to conceal the woman’s dishonor, the case shall fall under Art. 256 (Intentional Abortion).

▪

As to the pharmacist, it is not necessary that the abortive was actually used so long as the abortive was dispensed without proper prescription from a physician, it is already consummated. (Reyes, The Revised Penal Code: Book Two, 2017, p.550) It is immaterial that the pharmacist knows that the abortive would be used for abortion. Otherwise, he shall be liable as an accomplice should abortion result from the use thereof. (Ibid.)

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ARTICLE 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL Punishable acts: (KIC) 1. By Killing one’s adversary in a duel; 2. By Inflicting upon such adversary physical injuries; and 3. By making a Combat although no physical injuries have been inflicted.

Persons liable: 1. Challenger; and 2. Instigators. NOTE: A challenge to fight, without contemplating a duel, is not challenging to duel. The person making the challenge must have in mind a formal combat to be concerted between him and the one challenged in the presence of two or more seconds. (Reyes, The Revised Penal Code: Book Two, 2017, p.552)

Persons liable: 1. The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. 2. The seconds, as accomplice. NOTES: ●

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Duel – formal agreement to fight with another party, under determined conditions and with the participation and intervention of seconds, who fix such conditions. (U.S vs. Navarro, G.R. No. 1878, March 9, 1907) A formal or regular combat previously concerted between two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all other conditions of the fight. Seconds – persons who make the selection of the arms and fix the other conditions of the fight. Self–defense cannot be invoked if there was a pre–concerted agreement to fight, but if the attack was made by the accused against his opponent before the appointed place and time, there is an unlawful aggression, hence self–defense can be claimed. (Justo vs. Court of Appeals, G.R. No. L–8611, June 28, 1956)

ARTICLE 262 MUTILATION Two Kinds of Mutilation: a. By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction (Castration). b. By intentionally making other mutilation by lopping or clipping off of some part of body of the offended party, other than the essential organ for reproduction, to deprive him of that part of the body (Mayhem). Elements of Castration: (MuR-DeR) 1. That there be a castration, that is, Mutilation of organs necessary for Reproduction; and 2. The mutilation is caused purposely and deliberately, that is, to Deprive the offended party of some essential organ for Reproduction. (Aguirre vs. Secretary of Department of Justice, G.R. No. 170723, March 3, 2008) Elements of Mayhem: (LSD) 1.

ARTICLE 261 CHALLENGING TO A DUEL Punishable acts: (CIS) 1. By Challenging another to a duel; 2. By Inciting another to give or accept a challenge to a duel; and 3. By Scoffing or decrying another publicly for having refused to accept a challenge to fight a duel.

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That there be Lopping or clipping off of Some part of body of the offended party, other than the essential organ for reproduction; and The mutilation is caused purposely and deliberately, that is, to Deprive the offended party of that part of the body.

NOTES: ●

Mutilation – the lopping or the clipping off of some part of the body (U.S. vs. Bogel, G.R. No. 2957, January 3, 1907).

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The offender under the second kind of mutilation (Mayhem) must have deliberate intention to deprive the offended party of a part of his body. Otherwise, the case will be considered as physical injuries falling under Art. 263, par. 1 or par. 2, as the case may be.

d. becomes ill or incapacitated for the performance of the work in which he had be habitually engaged in for more than 90 days. 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days). Comparison of paragraphs 1 to 4:

● The penalty under the second kind of

mutilation (Mayhem) when the victim is under 12 years of age shall be reclusion perpetua (Sec. 10, R.A. 7610).

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The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. (Aguirre vs. Secretary of Department of Justice, G.R. No. 170723, March 3, 2008). ARTICLE 263 SERIOUS PHYSICAL INJURIES

Ways of Committing (SABAW): 1. 2. 3. 4.

By Wounding; By Beating; By Assaulting; and By Administering injurious Substances. (Art. 264)

Kinds of Serious Physical Injuries: 1. When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted. 2. When the injured persona. loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg, b. loses the use of any such member, or c. becomes incapacitated for the work in which he had been habitually engages 3. When the injured persona. becomes deformed, b. loses any other member of his body, c. loses the use thereof, or

Par. 1

Par. 2

Par. 3

Par. 4

Insanity Imbecility Impotency Blindness

Loss of an eye. Loss of power to hear in BOTH ears. Loss of power to smell. Loses a/an: -eye -hand -foot -arm -leg -loses any such member Becomes incapacitat ed for work in which he was habitually engaged.

Loss of power to hear in one ear.

loss of any other member (ex. Loss of finger, tooth).

Becomes ill or incapacitat ed for the performan ce of the work in which he was habitually engaged for more than 90 days.

Becomes ill or incapacitat ed for labor for more than 30 days NOTE: “Labor” pertains to any kind of labor, not necessarily where the offended party is engaged at the time the serious physical injuries are inflicted.

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Deformity (ex. Loss of lobule of ear)

NOTES: ●

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Impotence – loss of power to procreate; inability to copulate; sterility. Properly used of the male; but it also has been used synonymously with “sterility”. (Black’s Law Dictionary, 1951) Blindness – contemplates total blindness or loss of both eyes (par. 1). Loss of only one eye is contemplated under par. 2. Mere weakness of vision is not contemplated.

(Reyes, The Revised Penal Code Book Two, 2011, pp. 538) ●

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Loss of power to hear should be in both ears; if one ear only, it falls under par. 3 of Art. 263. (People vs. Hernandez, G.R. No. L-4213, November 28, 1953) Amputation of an arm is serious physical injury under subdivision No. 2. (People vs. Lagatam G.R. Nos. L-1940-42, March 24, 1949) For loss of the use of hand or incapacity of usual work in Art. 263(2), the loss must be permanent. The injury to cause deformity is one that cannot be replaced by nature. (People vs. Balubar, G.R. No. 40940, October 9, 1934) Deformity requires that the injury be: (a) Physical ugliness; (b) Permanent and definite abnormality; and (c) Conspicuous and visible. (Reyes, The Revised Penal Code: Book Two, 2017, p.561) Deformity will always constitute serious physical injury even if treatment lasts for less than 30 days. In paragraph 2 and 3, the offended party must have a work which he was habitually engaged at the time of the injury. Where the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of that length of that period, otherwise, the offense shall only be slight physical injuries. (Reyes, The Revised Penal Code: Book Two, 2017, p.565)

Qualifying Circumstances: a.

Offense committed against persons enumerated in the crime of parricide.

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With the attendance of circumstance which qualify the crime to murder.

“Qualified Penalties” are not applicable to parents who inflict serious physical injuries upon their children be excessive chastisement. Physical Injuries vs. Attempted or Frustrated Homicide Physical Injuries

Attempted or Frustrated Homicide

As to the presence of inflicted injuries There must be inflicted physical injuries.

Physical injuries may or may not be inflicted.

As to the presence of intent to kill The offender has no intent to kill the offended party.

The offender has an intent to kill the offended party.

(Reyes, The Revised Penal Code: Book Two, 2006, p.538)

Physical Injuries vs. Mutilation In Mutilation, there is intent to deprive the offended party of some part of the body while there is no such intent in Physical Injuries. (Reyes, The Revised Penal Code: Book Two, 2006, p.544) ARTICLE 264 ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES Elements: (WAIN) 1. The offender Inflicted upon another any serious physical injury; 2. It was done by knowingly Administering to him any injurious substances or beverages or by taking advantage of his Weakness of mind or credulity; and 3. The offender has No intent to kill. NOTES: 1. Administering injurious substances or beverages means introducing into the body the injurious substances or beverages. The infliction of injuries by throwing mordant chemicals or poisons in the face or body is not one of the offenses defined and penalized in the Article. (U.S. vs. Chiong Sangco, G.R. No. L-6503, February 27, 1911)

2. If intent to kill is present and the victim did not die, the crime is frustrated murder. Offender must have knowledge of the injurious nature of the substance he administered. Otherwise, he is not liable. ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES Elements: 1. The offended party is incapacitated for labor for 10 or more but not more than 30 days or needs medical attendance for the same period; and 2. That the physical injuries must not be those described in the preceding articles.

ARTICLE 266 SLIGHT PHYICAL INJURIES AND MALTREATMENT Kinds of Slight Physical Injuries (IDI) 1. Physical injuries which Incapacitated the offended party for labor from one to nine days; or required medical attendance during the same period; 2. Physical injuries which Did not prevent the offended party from engaging in his habitual work or which did not require medical attendance; and 3. Ill-treatment of another by deed without causing any injury. NOTES:

NOTES: ●

The law includes two subdivisions:

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When the offender shall ill-treat another by deed without causing injury, and without causing dishonor, the offense is maltreatment under Art. 266(3). (People vs. Mapalo, G.R. No. 172608, February 6, 2007)

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Any physical violence which does not produce injury, such as slapping the face of the offended party, without causing dishonor is considered slight physical injury, otherwise, when the maltreatment causes dishonor, the crime committed would be Slander by Deed. (Reyes, The Revised Penal Code: Book Two, 2017, p.570)

●

When there is no evidence of actual injury, it is only Slight Physical Injuries. (Bagajo vs. Marave, G.R. No. L-33345, November 20, 1978)

1. the inability for work; and 2. the necessity for medical attendance. Therefore, although the wound required medical attendance for only 2 days, yet if the injured party was prevented from attending to his ordinary labor for a period of 29 days, the offense committed is Less Serious Physical Injuries. (US vs. Trinidad, G.R. No. 1851, January 23, 1905) ●

●

The phrase “shall require medical attendance for the same period” means the actual medical attendance. There must be proof of the required medical attendance. (People vs. Penesa, G.R. No. CA–263, August 19, 1948) In the absence of proof as to the period of the offended medical attendance, offense committed is only Slight Physical Injuries. (Reyes, The Revised Penal Code: Book Two, 2017, p.568) This article applies even if there was no incapacity but the medical treatment was for more than 10 days. (Ibid.)

Four Acts punishable under Republic Act 9262 (Anti-Violence Against Women and their Children Act of 2004) 1. 2. 3. 4.

Physical Violence Economic Abuse Psychological Violence Sexual Violence

[See further discussion on RA 9262 0 AntiViolece Against Women and Children of 2004 ]

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ARTICLE 266-A RAPE, WHEN AND HOW COMMITTED Two Kinds of rape under Article 266-A: 1.

Rape by sexual intercourse (MCC) Elements: a) Offender is a Man; b) Offender had Carnal knowledge of a woman; and c) Such act is accomplished under any of the following Circumstances: (FDFU) i. Through Force, threat, or intimidation; ii. When the offended party is Deprived of reason or otherwise unconscious; iii. By means of Fraudulent machination or grave abuse of authority; or iv. When the offended party is Under 12 years of age or is demented, even though none of the circumstances mentioned above be present.

Rape by sexual assault (APIC) Elements: a. The offender commits an act of sexual Assault; b. Sexual assault is committed by any of the following means: i. By inserting his Penis into another person’s mouth or anal orifice; or ii. By inserting any Instrument or object into the genital or anal orifice of another person. c. Sexual assault is accomplished under the following Circumstances:(FDFU) i. Through Force, threat, or intimidation; ii. When the offended party is Deprived of reason or otherwise unconscious; iii. By means of Fraudulent machination or grave abuse of authority; and iv. When the offended party is Under 12 years of age or is demented, even though none of the circumstances mentioned above be present.

Traditional Rape The offender is always a man.

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Sexual Assault The offender may be a man or a woman.

XPN: if the act was committed in conspiracy with a man. The offended party is always a woman. Rape is committed through penile penetration of the vagina. XPN: Mere contact by the male’s sex organ of the labia consummates rape.

The offended may be a man or a woman. Rape is committed by inserting the penis into other person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person.

But mere epidermal contact or peripheral contact with the female’s sex organ is only attempted rape. The penalty is higher than the sexual assault.

The penalty is lower than in traditional rape.

(People vs. Nequia, G.R. No. 146569, October 6, 2003)

NOTES: ● Under R.A. No. 8353 or the Anti-Rape Law of 1997, the crime of rape can now be committed by a man or woman in the case of insertion of any instrument or object. ● Effect of the re-classification of rape into crime against persons from crimes against chastity: o The procedural requirement of consent of the offended to file the case is no longer need. This is now a “public crime”. Thus, the case can be filed by the State motu proprio. o The impossible crime of rape can now be committed. o Rape can now be committed against males since it is no longer a crime against chastity. o The aggravating circumstances relevant against person shall apply such as treachery, ignominy or moral suffering. ● Consummated Rape by Sexual Intercourse - mere touching of the external genitalia by a penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. This means that the rape is consummated once the penis of the accused capable of consummating the sexual act

touches either labia of the pudendum. (People vs. Campuhan, G.R. No. 129433, March 30, 2000) ● The conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape proceeds from the physical fact that the labias are physically situated beneath the mons pubis or the vaginal surface, such that for the penis to touch either of them is to attain some degree of penetration beneath the surface of the female genitalia. It is required, however, that this manner of touching of the labias must be sufficiently and convincingly established. (People vs. Bali-Balita, G.R. No. 134266, September 15, 2000) ● Consummated Rape by Sexual Assault – the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object, into another person’s genital or anal orifice. (Pielago vs. People, G.R. No. 202020, March 13, 2013) Victim need not identify what was inserted into his or her genital or anal orifice for the court to find that rape through sexual assault was committed. (People vs. Soria, G.R. No. 179031, November 14, 2012) ● No crime of frustrated rape. (People vs. Orita, G.R. No. 88724, April 3, 1990) ● Attempted Rape - There is attempted rape when there is no penetration of the female organ because not all the acts of execution were performed. However, there must be an intention to have carnal knowledge of the woman against her will. (People vs. Orita, G. R. No. 88724, April 3, 1990) ● Moral character is immaterial in the prosecution and conviction of the offender in the crime of rape, even a prostitute can be a victim of rape as the essence is the victim’s lack of consent to the sexual act. (People vs. Aaron, G.R. Nos. 136300-02, September 24, 2002) ● Insertion of one’s finger into the genital of another constitutes rape through sexual assault. (People vs. John Nequia, G.R. No. 146569, October 6, 2003; People vs. Bon, G.R. No. 149199, January 28, 2003)

● Facts do not constitute elements of rape o Resistance – when the accused is the father or is closely related to the victim, moral ascendancy and influence substitutes for physical violence or intimidation. (People vs. Abella, September 1999) o Virginity (People vs. Sacapano, G.R. No. 130525, September 3, 1999) o The absence of fresh lacerations in the hymen. o The absence of findings by a medico-legal does not disprove the commission of rape. o The accused’s being younger than the victim is not relevant in rape. o Pain, which may be deduced from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. ● Statutory Rape – Mere sexual congress with a woman below 12 years of age consummates the crime of statutory rape regardless her consent to the act or lack of it. (People vs. Jalosjos, G.R. Nos. 132875-76, November 16, 2001) A mentally retarded person cannot give valid and legal consent to sexual act. Thus, carnal knowledge of a mental retardate is rape. Sexual intercourse with a mentally retarded 14 year-old victim was appreciated as akin to “statutory rape” because if the sexual intercourse with a victim under 12 years of age is rape, then, it should follow that carnal knowledge of a woman whose mental age is that of a child below 12 years old would also constitute rape. (People vs. Palma, G.R. No. L-69152, September 23, 1986) ● It is not necessary to prove that the victim was intimidated or that force was used. The law presumes that the victim on account of her tender age, does not and cannot have a will of her own. (People vs. Mayoral, G.R. Nos. 9609495, November 13, 1991) ● Rape can happen even in circumstances when there is no resistance from the victim. Resistance, therefore, is not necessary to establish rape, especially when the victim is unconscious, deprived of reason, manipulated, demented, or young either in chronological age or mental age. (People vs. Quintos, G.R. No. 199402, November 12, 2014)

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● Sweetheart Doctrine – It is well settled that being sweethearts does not negate the commission of the rape because such act does not give appellant license to have sexual intercourse against her will, and will not exonerate him from the criminal charge of rape. (People vs. Olesco, G.R. No. 174861, April 11, 2011) This doctrine is not applicable in statutory rape where what is material was below 12 years old when it happened. (Boado, Criminal Law, 2018) ● Marital Rape - The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 9262 or Anti-Violence Against Women and Their Children Act of 2004 which regards rape within marriage as a form of sexual violence that may be committed by a man against his wife within or outside the family abode. (People vs. Jumawan, G.R. No. 187495, April 21, 2014)

Attempted Rape vs. Acts of Lasciviousness vs. Unjust Vexation Attempted Rape The offender’s intent is to penetrate.

(People vs. Pareja, G.R. No. 188979, September 5, 2012)

● As a general rule, acts of lasciviousness is absorbed in the crime of rape except where the two crimes were committed by two different persons acting in conspiracy. (People vs. Dy, G.R. Nos. 115236-37. January 29, 2002) ● Treachery in the crime of rape: As a general rule, treachery may be appreciated in the crime of rape because RA 8353 reclassified Rape as a crime against person. Thus, Treachery can be appreciated as an aggravating circumstance except if the rape was committed before 1997 where the Rape is considered as crimes against chastity. ● Rape absorbs forcible abduction where the accused intended at the very outset to rape the victim when he abducted her. (People vs. San Pedro, G.R. No. 94128, February 3, 1993) ● Rape with Homicide: if the accused was not aware that he had AIDS but that the victim dies from AIDS acquired from the accused, the crime to be charged should be the special complex crime of Rape with Homicide. is understood in its generic sense and includes murder and slight physical injuries committed by reason or on occasion of rape. (People vs. Laog, G.R. No. 178321, October 5, 2011)

However, under the IRR on the Reporting and Investigation of Child Abuse Cases, Lascivious Conduct is where the offender’s overt acts against any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person.

Unjust Vexation If the offender’s act caused annoyance, irritation, torment, distress, or disturbance to the mind of the victim. (Rait vs

People, G.R. No. 180425, July 31, 2008)

(People vs. Sumingwa, G.R. No. 183619, October 13, 2009)

Aggravating/qualifying circumstances: 1)

o “Homicide”

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Acts of Lasciviousness If the offender’s intent is not to penetrate.

When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; 5) When the victim is a child below seven (7) years old; 6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 7) When committed by any member of the Armed Forces of the Philippines or paramilitary units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and 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 crime.

to the accomplices and accessories. (Reyes, The Revised Penal Code: Book Two, 2017, p.594) ● The principle does not apply where multiple rape was committed because while marriage with one defendant, extinguishes the criminal liability, its benefits cannot be extended to the acts committed by others of which he is a coprincipal. (People vs. Bernardo, et.al., C.A. 38, O.G. 3479) ● Marital Rape – RA 8353 – penalizes marital rape regardless of status of marriage. If the legal husband is the offender, the subsequent forgiveness of the wife extinguishes criminal action or penalty. The crime of marital rape is not extinguished or the penalty abated if the marriage is void ab initio. ● Prior to R.A. No. 8353, a husband cannot be guilty of rape committed upon his because of the matrimonial consent which she gave when she assumed the marriage relation. However, under Art. 266-C of R.A. No. 8353, a husband may be guilty of rape of his wife if it is the legal husband who is the offender. (People vs. Jumawan, G.R. No. 187495, April 21, 2014)

NOTE: To qualify the crime of rape and increase the penalty of accused from reclusion perpetua to death under Art. 266-B in relation to Art. 266-(A)(1) of the RPC, an allegation of the victim's intellectual disability must be alleged in the information. If not alleged in the information, such mental incapacity may prove lack of consent but it cannot increase the penalty to death. Neither can it be the basis of conviction for statutory rape. (People vs. Quintos, G.R. No. 199402, November 12, 2014)

1. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or 2. Where the offended party is so situated as to render him/her incapable of giving a valid consent.

ARTICLE 266-C EFFECT OF PARDON

ARTICLE 266-D PRESUMPTIONS Evidence which may be accepted in the prosecution of rape:

H. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY (ARTICLES 267-292) ARTICLE 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION (KASID)

NOTES:

Elements of Kidnapping: (P-DAC: 3P2M)

● Subsequent valid marriage between the offender and offended party extinguishes the criminal action or the penalty imposed. ● Since rape is now a crime against persons, marriage extinguishes the penal action only as to the principal, i.e. the husband, but not as

1. Offender is a Private individual who is not any of the parents of the victim 2. He kidnaps or Detains another, or in any other manner deprives the latter of his liberty; 3. Act of detention or kidnapping must be illegal; and

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4. In the commission of the offense, any of the following Circumstances is present: a. The kidnapping or detention last more than three (3) days; b. If it shall have been committed simulating Public authority; c. If any serious Physical injuries shall have been inflicted upon the person kidnapped or detained; d. If threats to kill shall have been made; or e. If the person kidnapped or detained shall be a Minor, female or a public officer. NOTES: ● In letters b, c, d and e above, detention for more than three (3) days is not necessary. (Reyes, The Revised Penal Code: Book Two, 2017, p.600; People vs. Ali, G.R. No. 222965, December 6, 2017) ● The deprivation means not only the imprisonment of the person, but also deprivation of his liberty in whatever form and for whatever length of time. The essence of kidnapping is the actual deprivation of the victim’s liberty, coupled with indubitable proof of the intent of the accused to effect such deprivation. (People vs. Basao, G.R. No. 189820, October 10, 2012) ● The fact that the victim voluntarily went with the accused did not remove the element of deprivation of liberty because the victim went with the accused on false inducement without which, the victim would not have done so. (People vs. Santos, G.R. No 117873, December 22, 1997) ● If the victim is a minor, the duration of his detention is immaterial. (People vs. Mamantak, G.R. No. 174659, July 28, 2008) ● Where the victim is of tender age, it is not necessary that the victim be placed in an enclosure. It is enough that his freedom to leave the said place is restricted. (People vs. Jacalne, G.R. No. 168552, October 3, 2011) ● There is no kidnapping with murder, but only murder, when a 3–year old child was gagged, hidden in a box where he died and a ransom was asked. A demand for ransom did not convert the offense into kidnapping with murder. The defendant was well aware that the child would be suffocated to death in a few moments after she left. The demand for ransom is only a part of the diabolic scheme of the defendant to murder the child, to conceal his body and then demand money

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before the discovery of the cadaver. (People vs. Lora, G.R. No. 49430, March 30, 1982) ● Attempted Kidnapping – the accused held the victim’s hand and refused to let go when the child asked permission to go over to her neighbor, who saw what was happening. (People vs. Dela Cruz, G.R. No. 120988, August 11, 1997) Prior the enactment of R.A. No. 7659 (AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES) on December 31, 1993, the rule is that: 

Where the accused kidnapped victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed is the complex crim of kidnapping with murder; and



Where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two separate crimes of kidnapping and murder were committed. (People vs. Ramos, G.R. No. 118570, October 12, 1998)

However, R.A. No. 7659 amended Art. 267 by adding a last paragraph which provides that when the victim is killed or dies as a consequence of the detention, or raped, or subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. The amendment introduced the special complex crime of kidnapping with murder or homicide. The RULE NOW: where the person kidnapped is killed where the killing was purposely south or was merely an afterthought, the kidnapping and murder or homicide as separate crimes, but shall punished as a special complex crime. (People vs. Rimorin, G.R. No. 124309, May 16, 2000) Special Complex Kidnapping

Crimes

1. Kidnapping with Homicide  Homicide here is used in its generic sense which includes homicide or murder because killing is not a crime but a qualifying circumstance. Thus, there’s no crime called Kidnapping with Murder.

 Kidnapping with Homicide will still prosper even the person is killed in the course of detention, regardless of whether the killing is sought or was merely an afterthought. 2. Kidnapping with Rape  Kidnapping with Rape includes regardless of how many counts of rape were committed by the accused. The taking of the kidnap victim here should not be with lewd design and rape happened after depriving the person of his liberty. Otherwise, the crime committed is forcible abduction with rape. Kidnapping with Rape vs. Forcible Abduction with Rape (NaLINA) Kidnapping with Rape

Forcible Abduction with Rape

As to Nature The crime is composite (or special complex crime) if the woman kidnapped is also raped.

The crime is complex (Art. 48) since forcible abduction is a necessary means to commit rape.

Kidnapping vs. Unlawful Arrest Kidnapping The essence of the crime is to deprive the person of his liberty. It can only be committed by private person.

Elements (InDEx):

Kidnapping

Lewd design came after At the outset, there is the intent to kidnap the already lewd design. victim. As to result of Attempted rape If rape was merely attempted, 2 separate crimes – kidnapping and serious illegal detention and attempted rape.

If rape was merely attempted, there is only forcible abduction, the attempt to rape is deemed merely a manifestation of lewd designs.

Kidnapping vs. Grave Coercion When a person is prevented from leaving or going to another place, the crime could either be kidnapping or grave coercion. The difference would now depend on whether there was an actual confinement or lock-up of the victim. If there’s no confinement or lock-up, the crime is Grave Coercion. (People vs. Astorga, G.R. No. 110097, December 22, 1997)

for

Ransom

1. There is Intent on the part of the accused to deprive the victim of his liberty. 2. That there is actual Deprivation of the victim’s liberty. 3. The motive of the accused is Extorting ransom for the release of the victim. (People vs. Cenahonon, G.R. No. 169962, July 12, 2007) NOTE: There should be at least one overt act of demanding ransom. It is not necessary that there be actual payment. (People vs. Silongan, G.R. No. 137182, April 24, 2003) Illegal Detention vs. Arbitrary Detention Illegal Detention

As to presence of Lewd Design

Unlawful Arrest The essence of the crime is to deliver the person arrested to the proper authority. It can be committed by either public officers and/or private persons.

Arbitrary Detention

As to Persons liable Committed by a private individual who unlawfully kidnaps, detains or otherwise deprives a person of liberty.

Committed by a pubic officer or employee who has a duty under the law to detain a person and who detains a person without legal ground.

As to Nature Crime is against personal Crime against the liberty and security. fundamental law of the State.

(Reyes, The Revised Penal Code: Book Two, 2006, p.584)

ARTICLE 268 SLIGHT ILLEGAL DETENTION Elements: (P-DAW) 1. Offender is a Private individual; 2. He kidnaps or detains another, or in any other manner Deprives him of his liberty;

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3. The Act of kidnapping or detention is illegal; and 4. The crime is committed Without the attendance of any of the circumstances enumerated in Art. 267. ● Liability is mitigated when: a. Offender voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention; b. Without having attained the purpose intended; and c. Before the institution of criminal proceedings against him. NOTE: To impose lesser penalty, it must be shown that the offender was in a position to prolong the detention for more than three (3) days and yet he released the person detained within that time. (Reyes, The Revised Penal Code: Book Two, 2017, p.611) Slight Illegal Detention None of the circumstances in KASI are present. Voluntary release can mitigate the liability. The same penalty as the principal is incurred by anyone who shall furnish the place (accomplice)

Kidnapping and Serious Illegal Detention

Cannot. The general rule on the penalty for accomplice observed which is one degree lower than the principal.

(Boado, Notes and Cases in Revised Penal Code, 2018, p. 1917)

ARTICLE 269 UNLAWFUL ARREST Elements: (ArD-Not) 1. Offender Arrests or detains another person; 2. The purpose of the offender is to Deliver him to the proper authorities; and 3. The arrest or detention is Not authorized by law or there is no reasonable ground therefor. NOTES: ●

This crime is committed by a private individual or public officer without authority

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to arrest and detain a person, or if he did not act in his official capacity, otherwise the crime committed is arbitrary detention. (Reyes, The Revised Penal Code: Book Two, 2017, p.612) Under Art. 269, no period of detention is required but the motive is controlling. (Reyes, The Revised Penal Code: Book Two, 2017, p.614)

Other Possible Crimes: 1. Arbitrary Detention – if committed by a public officer who has authority to arrest and detain a person 2. Other Illegal Detention – if the purpose of locking up or detaining the victim is other than to deliver him to proper authorities 3. Forcible Abduction – if a woman is transported from one place to another by virtue of restraining her of her liberty and the act is coupled with lewd designs. Unlawful Arrest vs. Delay in the Delivery of Detained Persons (LeCo) DELAY IN THE DELIVERY OF DETAINED PERSONS (Art. 125)

UNLAWFUL ARREST (Art. 269)

As to Legality Detention is for some Detention is not authorized legal ground. by law. As to Commission Crime is committed by Committed by making an failing to deliver such arrest not authorized by person to the proper law. judicial authority within a certain period.

(Reyes, The Revised Penal Code: Book Two, 2006, p.588-589)

ARTICLE 270 KIDNAPPING AND FAILURE TO RETURN A MINOR Elements: (EnRes) 1. Offender is Entrusted with the custody of a minor person; and

2. He deliberately fails to Restore the minor to his parents or guardians. NOTES: ●

●

Father or mother living separately and has no custody of the child may commit this crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.615) The essential element which qualifies crime of kidnapping a minor under this article is that offender is entrusted with custody of a minor. (Ibid.) ARTICLE 271 INDUCING A MINOR TO ABANDON HIS HOME

Elements: (Liv-In) 1. That the minor is Living in the home of his parents or guardian or the person entrusted with his custody. 2. That the offender Induces said minor to abandon such home.

ARTICLE 272 SLAVERY Elements: (Pur2) 1. That the offender Purchases, sells, kidnaps or detains a human being; and 2. That the Purpose of the offender is to enslave such human being. Circumstances aggravating the penalty: 1. If the crime is committed for the purpose of assigning the offended party to immoral traffic. 2. If the victim is female, the crime committed may be that under Art. 341 or white slave trade. NOTES: ●

The purpose must be determined, if the purpose is to enslave the victim, it is slavery; otherwise, it is kidnapping or illegal detention. (Reyes, The Revised Penal Code: Book Two, 2017, p.620)

●

Employment or consent of minor with consent of parent or guardian although against child’s own will is NOT involuntary servitude. (U.S. vs. Cabanag, G.R. No. L-3241, March 16, 1907) But if the defendant was obliged to render service without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery. (Reyes vs. Alojado, G.R. No. L-5671, August 24, 1910)

NOTES: ●

●

The inducement must be actual, with criminal intent and determined by a will to cause damage. The representations made by the accused to said minors (14 y/o and 19 y/o) highly praising the City of Manila and her offer or promise to take them to that City x x x do not constitute that inducement which is essential to the act. (People vs. Paalam, G.R. No. 17411-R, July 11, 1958, C.A., 54 O.G. 8267-8268) The felony is consummated by the mere act of inducing a minor to abandon his home with criminal intent and with a will to cause damage. (People vs. Apolinar, G.R. No. 04614, August 10, 1965 C.A., 62 O.G. 9044) Father or mother living separately and has no custody of the child may commit this crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.619)

ARTICLE 273 EXPLOITATION OF CHILD LABOR Elements: (RAP) 1. That the offender Retains a minor in his service; 2. That it is Against the will of the minor; and 3. That it is under Pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. NOTE: As to the phrase “against the latter’s (minor’s) will,” if the minor consents to the offender’s retaining his services, there is no

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violation of this article. (Reyes, The Revised Penal Code: Book Two, 2017, p. 621) ARTICLE 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

(Reyes, The Revised Penal Code Book Two, 2011, pp 595-596)

Elements: (CoW-P) 1. That the offender Compels a debtor to work for him, either as household servant or farm laborer; 2. That it is against the debtor’s Will; and 3. That the Purpose is to require or enforce the payment of debt. NOTE: Creditor–debtor relationship between the offender and the offended party must exist, otherwise, the crime committed is coercion. If a person is compelled by the accused to work for him as office janitor to enforce payment of debt, there will be no violation of this article. It specifically provides that the debtor is compelled to work as household servant o farm laborer. (Reyes, The Revised Penal Code: Book Two, 2017, p.622) Exploitation of Child Labor vs. Services Rendered Under Compulsion in Payment of Debt (VOS) Exploitation of Child Labor (Art. 273)

Services Rendered Under Compulsion in Payment of Debt (Art. 274)

As to Victim Victim is a minor.

Does not distinguish whether the victim is a minor or not.

As to One compelled Minor is compelled to Debtor himself is the one render services for the compelled to work for the supposed debt of his offender. parent or guardian. As to Service required

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Service of minor is not Limited to household and limited to household and farm work. farm work. If in other capacities, crime committed may be coercion.

ARTICLE 275 ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONE'S OWN VICTIM Punishable Acts (UnAcc-Del): 1. By failing to render assistance to any person whom the offender finds in an Uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. 2. By failing to help or render assistance to another whom the offender has Accidentally wounded or injured 3. By failing to Deliver a child under seven years of age whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place. Elements of par. 1: (F2URO) 1. The accused Finds a person wounded or in danger of dying; 2. The accused found such person in an Uninhabited place; 3. The accused can Render assistance without detriment to himself; 4. Such Omission to render assistance does not constitute a more serious felony; and 5. Failure to help or render assistance to somebody whom the accused has accidentally wounded. NOTE: “Uninhabited Place” is determined by the possibility of a person receiving assistance from another. The place may still be considered uninhabited in legal contemplation even if there are many houses around but the possibility of receiving assistance is remote. (People vs. Desalisa, G.R. No. 95262, January 4, 1994)

Elements of par. 2: (Acc-Fa) 1. The accused Accidentally wounded or injured another; 2. He Failed to help or render assistance to his victim; and Note: Note the use of the word “accidentally” in this article. Hence, if a person “intentionally” stabs or shoots another who is wounded and does not render him assistance, the person is not liable under this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.625) Elements of par. 3: (F27) 1. The accused Finds an “abandoned” child; 2. The said abandoned child is under seven (7) years of age; and 3. The accused Failed to deliver such child to the authorities or his family or shall fail to take him to a safe place. NOTE: The child under seven (7) years of age must be found in unsafe place and it is immaterial that the offender did not know that the child is under seven years. (Reyes, The Revised Penal Code: Book Two, 2017, p.625) ARTICLE 276 ABANDONING A MINOR

● If there is intent to kill and the child dies, the crime would be murder, parricide, or infanticide, as the case may be. If the child does not die, it is attempted or frustrated murder, parricide or infanticide, as the case may be. (Reyes, The Revised Penal Code: Book Two, 2017, p.626) ● If the intent in abandoning the child is to lose its civil status, the crime under Art. 347 (concealment or abandonment of a legitimate child) is committed. ● If the offender is the parent of the minor who is abandoned, he shall be deprived of parental authority. (Reyes, The Revised Penal Code: Book Two, 2017, p.626 citing Art. 32, C.C.) ARTICLE 277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS Acts punishable: 1. By delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender, or in the absence of that one, without the consent of the proper authorities. 2. By neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits (Indifference of Parents).

Elements: (C7-AbNo) 1. 2. 3. 4.

The offender has the Custody of a child; A child is under 7 years of age; He Abandons such child; and He has No intent to kill the child when the latter is abandoned.

Qualifying Circumstances: 1. When the death of the minor shall result from such abandonment; or 2. If the life of the minor shall have been in danger because of the abandonment. NOTES: ● Abandonment is not momentary leaving of a child x x x. The act but must be conscious, deliberate, and permanent. (People vs. Bandian G.R. No. 45186, September 30, 1936)

Elements of par. 1 – Abandonment of minor entrusted with his custody: (Char-PubCon) 1. Offender has Charge of the rearing or education of a minor; 2. He delivers said minor to a Public institution or other persons; 3. The one who entrusted such child to the offender has not Consented to such act, or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it. NOTE: When the offender is not in charge of rearing or education of the minor, he cannot be held liable for Art. 277(1). (U.S. vs. Payog, G.R. No. 534, April 1, 1902)

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Elements of par. 2 – Indifference of Parents: (ParNE) 1. The offender is a Parent; 2. He Neglects his children by not giving them education; 3. His station in life requires such Education and his financial condition permits it. NOTES: ● Failure to give education must be due to deliberate desire to evade such obligation. (Reyes, The Revised Penal Code: Book Two, 2017, p.629; People vs. Francisco, C.A., 51 O.G. 1941, citing 7 Viada, Codigo Penal 5, ed. 223) ● Obligation to educate children terminates, if

mother and children refuse without good reason to live with accused. (Reyes, The Revised Penal Code: Book Two, 2017; People vs. Miraflores, C.A.-G.R. No. 43384, VS.L.J., 382)

Abandoning a Minor vs. Abandonment of Minor or Person with his Custody or Indifference of Parents (C2A) Abandoning a Minor (Art. 276)

Minor or Person with his Custody or Indifference of Parents (Art. 277)

As to Custody of offender Custody of the offender is stated in general.

Custody of the offender is specific, that is, for the rearing or education of the minor.

As to Age of minor The minor is under 7 years of age.

The minor is under 18 years of age (R.A. No. 6809).

As to Commission

The minor is abandoned to deprive him of the care and protection that his tender years need.

The minor is delivered to a public institution or other person without the consent of the one who entrusted such minor to the offender; or in the absence of such, then the consent of the Sate through the DSWD.

(Reyes, The Revised Penal Code: Book Two, 2006, p.603)

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ARTICLE 278 EXPLOITATION OF MINORS Acts punishable: (BA-12-AsIn) 1. By causing any boy or girl less than 16 years of age to perform any dangerous feat of Balancing, physical strength, or contortion, the offender being any person; 2. By employing in exhibition of these kinds children less than 16 years of age who are not his children or descendants, when such person is an Acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager, or engaged in a similar calling; 3. Any person engaged in any of the calling enumerated in the next preceding paragraph who employs any descendants of his under 12 years of age in such dangerous exhibitions; 4. Any Ascendants, guardian, teacher or person entrusted in any capacity with the care of a child less than 16 years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar; and 5. Any person who shall Induce any child under 16 years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the calling mentioned in paragraph 2 hereof, to accompany any habitual vagrant or beggar. Qualifying Circumstance: In paragraph 4, if the delivery of the child is made in consideration of any price, compensation or promise, the penalty is higher. Exploitation of Minors vs. Inducing a Minor to Abandon His Home Inducing a Minor to Abandon His Home (Art. 271) As to Purpose The purpose in inducing No specified purpose the minor to abandon the is manifested. home is to follow any person engaged in any of the callings of being an acrobat, rope-walker, etc. As to Age of victim The minor victim is under Victim is under 18 16 years of age. years of age. Exploitation of Minors (Art. 278[5])

(Reyes, The Revised Penal Code: Book Two, 2006, p.605-606)

NOTE: ● In defining children, the law includes persons less than 18 years of age or those who cannot take care of themselves and can be taken advantage of by others by reason of their age or mental incapacity. ● The exploitation of the minor must be of such nature as to endanger his life or safety, in order to constitute the offense described under this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.631) ARTICLE 279 ADDITIONAL PENALTIES FOR OTHER OFFENSES The imposition of the penalties prescribed in the preceding articles, shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by the RPC. Section Two TRESPASS TO DWELLING ARTICLE 280 QUALIFIED TRESPASS TO DWELLING Elements: (PEW) 1. Offender is a Private person; 2. He Enters the dwelling of another; and 3. The entrance is against the latter’s Will. Qualifying Circumstance: If committed by means of violence/intimidation. NOTES: ● “Dwelling place” as used in this articles means any building or structure exclusively devoted for rest and comfort, as distinguished from places devoted to business offices, etc. Whether a building is a dwelling house or not depends upon the use to which it is put. (Reyes, The Revised Penal Code: Book Two, 2017, p.633)

● “Against the will of the owner” It is necessary that the entry is against the implied or express prohibition of the occupant, and the lack of permission (or consent) should not be confused with prohibition. (People vs. De Peralta, G.R. No. 17332, August 18, 1921) ● There is an implied prohibition when entrance is made through means not intended for ingress. (People vs. Marcial, C.A., 50 O.G. 3122) (e.g., entrance through window) ● In general, all members of a household must be presumed to have authority to extend invitation to enter the house. (U.S. vs. Dulfo, G.R. No. 4133, August 10. 1908) Other possible crimes: 1. Violation of Domicile – if committed by a public officer. 2. If a person was killed after trespass by the offender, the following crimes are committed: a. Separate Crimes of Homicide or Murder and Qualified Trespass to Dwelling - if offender had no intent to kill when he entered; b. Homicide or Murder with Dwelling as Aggravating Circumstance – if offender had intent to kill when he entered. Cases where Article 280 does not apply: a. If the entrance to another’s dwelling is for the purpose of preventing some serious harm to himself, or the occupants of the dwelling, or a third person; b. If the purpose is to render some service to humanity or justice; c. If the place where the entrance is made is a café, tavern, inn, or other public house while the same is open; and d. Hot pursuit of a person who has committed a crime. ARTICLE 281 OTHER FORMS OF TRESPASS Elements: (CUMS) 1. Offender enters the Closed premises or the fenced estate of another; 2. Entrance is made while either of them is Uninhabited;

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3. The prohibition to enter is Manifest; and 4. Trespasser has not Secured the permission of the owner or caretaker thereof. Trespass to Dwelling vs. Other Forms of Trespass (P3MA)

Elements of grave threats where offender attained his purpose: (TC-ConPur)

Trespass to Dwelling Other Forms of Trespass (Art. 280) (Art. 281) As to Persons liable Offender is a private Offender is any person. person. As to Manner of entrance Offender enters dwelling house.

a Offender enters closed premises or fenced estate.

As to Place entered The place entered is Place entered inhabited. uninhabited.

As to Act constituting crime The act constituting the crime is entering the dwelling against the will of the owner.

The act constituting a crime is entering the closed premises or the fenced estate without securing the permission of the owner or caretaker.

As to Prohibition to enter The prohibition to enter The prohibition to enter is express or implied. must be manifest.

(Reyes, The Revised Penal Code: Book Two, 2006, p.614)

ARTICLE 282 GRAVE THREATS Acts Punishable: (ConNot-Pur) 1. By threatening another person with the infliction upon the latter’s family of any wrong amounting to a crime and there is a demand for money or that any other Condition is imposed, even though not unlawful and the offender attains his purpose. 2. By making such threat without the offender attaining his Purpose.

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3. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat Not being subject to a condition.

1. That the offender Threatens another person with the inflictions upon the latter’s person, honor, or property, or upon that of the latter’s family, of any wrong. 2. That such wrong amounts to a Crime. 3. That the there is demand for money or that any other Condition is imposed, even though not unlawful. 4. That the offender attains his Purpose. Elements of grave threats not subject to a condition: (TC-Not) 1. That the offender Threatens another person with the inflictions upon the latter’s person, honor, or property, or upon that of the latter’s family, of any wrong; 2. That such wrong amounts to a Crime; and 3. That the threat is Not subject to a Condition. NOTES: ● Aggravating circumstances: (1) if made in writing or (2) made through a middleman. ● The crime is frustrated if the threat was not received by the person being threatened. ● Threats which ordinarily are grave threats, if made in the heat of anger, may be “Other Light Threats”. (Reyes, The Revised Penal Code: Book Two, 2017, p.643) ● Grave threats may be committed by indirect challenge to a gun fight, even if complainant was absent when challenge was made; it is sufficient that threats came to knowledge of offended party. (People vs. Sayon, C.A., 64 O.G. 5089) ● Threats made in connection with the commission of other crimes are absorbed by the latter. (Reyes, The Revised Penal Code: Book Two, 2017, p.647) ● The offender in grave threats does not demand the delivery on the spot of the money or other personal property asked by him, otherwise it would constitute Robbery with Intimidation. (U.S. vs. Osorio G.R. No. 6660.

January 17, 1912; People vs. Villanueva, et.al., C.A. 48 O.G. 1376)

Threats, Coercion Distinguished (PEHID)

and

Robbery,

NOTES: ● ●

Threats Purpose is to threaten another with the infliction of a wrong amounting to a crime.

Coercion As to Purpose Purpose is to compel a person to do a particular act against his will, whether right or wrong, or to prevent him from doing something not prohibited by law.

Robbery Purpose is to take personal property belonging to another, with the intention to gain.

As to Effect of Crime Desired Desired Desired purpose purpose does purpose immediately not immediately succeeds. immediately succeeds. succeed. As to existence of Harm threatened Harm Harm Harm threatened threatened threatened is is immediate. may be in the immediate. future. As to Intent No intent to With intent to No intent to gain. gain. gain. As to whom Directed Directed on the Directed against Directed person of the the person of the against victim, his victim. property. honor, family, or property.

ARTICLE 283 LIGHT THREATS Elements: (TC-ConOr) 1. The offender makes a Threat to commit a wrong; 2. The wrong does not constitute a Crime; 3. There is demand for money or that other Condition is imposed, even though not unlawful; and 4. The offender has attained Or has not attained his purpose.

Blackmail may be punished under Art. 283. (Reyes, The Revised Penal Code: Book Two, 2017, p.648) Light threat is committed in the same manner as grave threats, except that the act threatened to be committed should not be a crime. (Ibid.) ARTICLE 284 BOND FOR GOOD BEHAVIOR

Required to give bail bond: 1. In all cases of grave threats and light threats, the person making the threats may also be required to give bail not to molest the person threatened. 2. If he shall fail to give such bail not to molest the person threatened, he shall be sentenced to destierro. Bond for Good Behavior vs. Bond to keep the Peace (PA-FUN) Bond for Good Bond to keep the Behavior Peace (Art. 284) (Art. 35) As to Purpose Provides for bond for Provides for bond to good behavior. keep the peace. As to Applicability May be given only in May be given in any case cases of grave threats that the court may (Art. 282, RPC) and light determine. threats. (Art. 283, RPC) As to effect of Failure to give bond If he shall fail to give bail, If the offender fails to he shall be sentenced to give the bond, he shall destierro. be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (if prosecution for light felony). As to persons who Undertake It is the accused himself It is the two (2) sufficient who undertakes not to sureties (not the molest the person accused) who undertake threatened. that the accused shall not commit the offense sought to be prevented.

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As to Nature of penalty It is an additional It is a distinct penalty penalty. common to afflictive, correctional, and light penalties. (Art. 25, RPC)

ARTICLE 285 OTHER LIGHT THREATS Acts punishable: (WAO) a. By threatening another with a Weapon, or draw such weapon in a quarrel, unless it be in lawful self-defense; b. By orally threatening another, in the heat of Anger, with some harm constituting a crime, and who by subsequent acts shows that he did not persist in the idea involved in his threat; c. By Orally threatening to do to another any harm not constituting a felony. Grave Threats

Light Threats

The wrong threatened amounts to a crime which may or may not be accompanied by a condition.

The wrong threatened does not amount to a crime but is always accompanied by a condition.

Other Light Threats The wrong threatened does not amount to a crime and there is no condition.

restraint shall not be made under authority of law or in the exercise of any lawful right. Ways of committing grave coercion: 1. By preventing another by means of violence, threats or intimidation from doing something not prohibited by law; or 2. By compelling another by means of violence to do something against his will, whether it is right or wrong. Kinds of Grave Coercion: a. Preventive – the offender uses violence to prevent the victim from doing what he wants to so. (Reyes, The Revised Penal Code: Book Two, 2006, p.628) b. Compulsive – the offender uses violence to compel the offended party to do what he does not want to do. (Reyes, The Revised Penal Code: Book Two, 2006, p.629) NOTES: ●

The offender must have exerted violence on his victim at the very moment that the latter is doing or is about to do something he wanted to do. If the offended party had already done what he wanted to do, and the threat or intimidation was exerted only after he has done what he wanted, the crime is only unjust vexation. (People vs. Madrid, No. 14730-R, October 31, 1965)

●

The taxi driver who threatened to bump his car to kill himself and his female passenger if she would not go with him to night club is guilty of grave coercion. (People vs. Rimando, C.A. 56 O.G. 1687)

(Reyes, The Revised Penal Code: Book Two, 2006, p.626)

Note: Where the threats are directed to a person who is absent and uttered in temporary fit of anger, the offense is only light threats. (People vs. Fontanilla, G.R. No. 39248, February 3, 1934) ARTICLE 286 GRAVE COERCIONS Elements of grave coercion: (PVA) 1. That a person Prevented another from doing something not prohibited by law, or he compelled him to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by Violence, threats or intimidation; and 3. The person who restrained the will and liberty of another had no Authority of law or the right to do so, or, in other words, that the

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Qualifying Circumstances: 1. If the coercion is committed in violation of the exercise of the right of suffrage; 2. If the coercion is committed to compel another to perform any religious act; and 3. If the coercion is committed to prevent another from performing any religious act.

Other Possible Crimes:

coercion and not unlawful arrest. (U.S. vs. Alexander, G.R. No. L-2503, March 15, 1907)

When act is preventing: 1. Interruption of Religious Worship (Art. 132) – if the public officer prevents by means of violence or threatens the ceremonies or manifestations of any religion. 2. Acts tending to prevent the meeting of the Assembly and similar bodies (Art. 143) – if a person who, by force, prevents the meeting of a legislative body. 3. Violation of Parliamentary Immunity (Art. 145) – if a person who shall use force or intimidation prevents any member of the Congress from attending the meetings thereof, expressing his opinions, or casting his vote. When act is compelling:

ARTICLE 287 LIGHT COERCIONS Elements of light coercion: (C-SAP) 1. The offender must be a Creditor; 2. He Seizes anything belonging to his debtor; 3. The seizure is Accomplished either: by means of violence, or a display of material force producing intimidation; and 4. The Purpose is to apply the same to the payment of the debt. NOTE: There is no light coercion where the accused seized the property of which he is a coowner and which was in the possession of the debtor. (U.S. vs. Caballero, G.R. No. 8608, September 26, 1913)

1. Expulsion (Art. 127) – if a public officer who, not being authorized by law, compels a person to change his residence. 2. Kidnapping for ransom (Art. 267) – if the debtor was compelled to pay his because in effect, there is a demand for payment that releases from captivity.

UNJUST VEXATION – a form of light coercion which is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritated an innocent person. (Maderazo vs. People, G.R. No. 165065, September 26, 2006)

Coercion vs. Illegal Detention

NOTES:

In illegal detention, there is clear deprivation of liberty, while in grave coercion intent to deprive offended party of his liberty is not clear as when the latter has the freedom to leave the house of the accused but she is compelled to go back against her will. (Reyes, 2017; U.S. vs. Quevengco, 2 Phil 412; People vs. Dauatan, et. al. C.A., 35 O.G. 450)

● The offender’s act must have caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person whom it is directed. Good faith is a defense in unjust vexation. (People vs. Gozum, C.A., 54 O.G. 749) ● If a creditor, by means of violence, seized the personal property of his debtor to apply the same to the payment of the debt, the crime is light coercion under Art. 287; but if the same was done through deceit and misrepresentation, it is merely unjust vexation under Art. 287(2). (People vs. Lacdan, C.A., 51 O.G. 2441) ● As distinguished from grave coercion, the use of violence is lacking in unjust vexation. (People vs. Sebastian, et.al., C.A., 40 O.G. 10533)

Coercion vs. Maltreatment of Prisoner In the crime of maltreatment of prisoners, the offended party is a prisoner. If the offended party is not a prisoner, the offense would be grave coercion. (Reyes, The Revised Penal Code: Book Two, 2017, p.664) Coercion vs. Unlawful Arrest Where a woman was dragged from her doorway to and along the street and was placed in public carromata for an act which did not constitute a violation of ordinance, such acts constitute grave

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ARTICLE 288 OTHER SIMILAR COERCION Compulsory purchase of merchandise payment of wages by means of tokens.

and

(Art. 288 has been repealed by Art. 102 and 112 of the Labor Code, as amended)s ARTICLE 289 FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS

[Art. 289 has been repealed by Art. 248 (unfair labor practices of employers) and Art. 249 (unfair labor practices of labor organizations of the Labor Code, as amended]

another to discover the secret of the latter. As to Act Punished Act punished is the Act punished is the revelation of secrets by seizure of the officer by reason of correspondence so as to his office. discover the secrets of the offended party.

(Reyes, The Revised Penal Code: Book Two, 2006, p.648)

Art. 290 not applicable to: 1. Parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or custody; and 2. Spouses with respect to the papers or letters of either of them. (Art. 290, par.3) ARTICLE 291 REVEALING SECRETS WITH ABUSE OF OFFICE

ARTICLE 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE Elements: (Off-Se-DisCo) 1. The Offender is a private individual or even a public officer not in the exercise of his official functions; 2. He Seizes the letters or papers of another; 3. Purpose of such seizure is to Discover the secrets of another person; and 4. Offender is informed of the Contents of the letters seized. Qualifying Circumstance: Offender reveals the contents of such paper or letter of another to another person. Public officer revealing secrets of individual vs. Seizure of Correspondence (C-FAP) Public officer Seizure of revealing secrets of Correspondence individual As to Commission Public officer comes to Private individual seizes know the secret of any the papers or letters of private individual by another. reason of this office. As to Form of secret The secret is not It is necessary that the necessarily contained in offender seizes the papers or letters. papers of letters of

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Elements: (MaLeR) 1. The offender is a Manager, employee, or servant; 2. He Learns the secrets of his principal or master; and 3. He Reveals such secrets. NOTE: ● Secrets must be learned by reason of their employment. Damage is not an essential element of the crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.675) ● Under R.A No. 4200 - Anti-Wire Tapping Act, it shall be unlawful for any person to communicate the contents of any tape record, wire record, disc record or any other such record or copies thereof which was acquired without authority from all the parties to any private communication or spoken word. [See

further discussion on Special Penal Laws]

ARTICLE 292 REVELATION OF INDUSTRIAL SECRETS Elements: (In-SRP) 1. The offender is a person In-charge, employee or workman of a manufacturing or industrial establishment; 2. The manufacturing or industrial establishment has a Secret of the industry which the offender has learned; 3. The offender Reveals said secrets; and 4. Prejudice is caused to the owner. NOTES: 1. Secrets must relate to manufacturing process. (Reyes, The Revised Penal Code: Book Two, 2017, p.676) 2. Prejudice is an essential element. (Ibid.) 3. The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment . (Ibid.) Sec. 22 of R.A. No. 9745 (Anti-Torture Act of 2009) provides that penalties are to be imposed in its maximum period when torture attends the commission of any crime punishable under Title 8 and 9. [See further discussion

on Special Penal Laws]

I. CRIMES AGAINST PROPERTY (ARTICLES 293-332) ARTICLE 293 WHO ARE GUILTY OF ROBBERY Elements of Robbery in general: (PUGI) 1. That there be Personal property belonging to another; 2. That there is Unlawful taking of that property; 3. That the taking is with intent to Gain; and 4. That there is violence against or Intimidation of any person or force used upon things.

NOTES: Property taken must be personal property, for if real property is occupied or real right is usurped by means of violence against or intimidation of persons, the crime is occupation of real property or usurpation of real rights under Art. 312. (Reyes, The Revised Penal Code: Book Two, 2017, p.680)  Unlawful taking is an essential element of robbery. The taking must be against the will of the owner or lawful possessor of a personal property. As an element of robbery taking must have the character of permanency. If the dispossession of a personal property is only temporary and there is no intention on the offender to deprive the owner or lawful possessor of a thing permanently of his possession, robbery is not committed. (US vs. Atienza, G.R. No. 1043, May 15, 1903) When the thing taken is a motor vehicle, then the crime is carnapping, penalized under AntiCarnapping Act. [See further discussion on

Special Penal Laws]

If the thing taken is large cattle, then the crime committed is cattle rustling. Classification of personal property under the Civil Code does not apply. The test is whether or not the object is susceptible of appropriation and transportation.  The taking of personal property belonging to another should not be under claim of ownership x x x even though the claim of ownership is untenable. (U.S. vs. Manluco G.R. No. 10005. November 9, 1914)

Classification of robbery:

“Belonging to another” – In robbery, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. Actual possession of the property by the person dispossessed is sufficient. It has been held that robbery may be committed against a bailee or a person who himself has stolen it. (People vs. Gavina, G.R. No. 118076, November 20, 1996)

a. Robbery with violence against, or intimidation of persons (Art. 294, 297 and 298). b. Robbery by the use of force upon things (Art. 299 to 302).

‘Intent to Gain’ or ‘Animus Lucrandi’ – is an internal act which can be established through the overt acts of the offender. (People vs. Sia Teb Ban G.R. No. 31695, November 26, 1929) Absence of

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intent to gain will make the taking grave coercion if there is violence used (Art. 286).  Robbery with violence against or intimidation of persons is deemed more serious than robbery with force upon things since there is greater disturbance to the order of society and the security of the individual. (Manahan vs. People, G.R. No. 47899, September 30, 1942)  In cases of joyride, there is taking as long as the accused’s has the thing in his hand, or as long as the possession of the owner is disturbed even if temporarily. (Villacorta vs. Insurance Comm., et al., G.R No. L-54171, October 28, 1980, as cited in People vs. Bustinera, G.R. No. 148233, June 8, 2004) ARTICLE 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS NOTE: Paragraphs 1-5 of Art. 294 are single, special and indivisible felonies, not complex crimes as defined under Art. 48 of the RPC. (People vs. Alfeche, G.R. No. 102070, July 23, 1992) Acts punishable as robbery with violence against or intimidation of persons: (HI2LUD-R) 1. When by reason or on occasion of the robbery the crime of Homicide is committed 2. When the robbery is accompanied by: Rape, Intentional mutilation, Arson 3. When by reason or on occasion of such robbery, any of the physical injuries resulting in: Insanity, Imbecility, Impotency, Blindness is inflicted 4. When by reason or on occasion of robbery, any of the physical injuries resulting in the: Loss of the use of speech, Loss of the power to hear or to smell, Loss of an eye, a hand, a foot, an arm or a leg, Loss of the use of any of such member, Incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. 5. If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly Unnecessary for the commission of the crime. 6. When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in

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consequence of which the person injured: Becomes Deformed, Loses any other member of his body, Loses the use thereof, Becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days, Becomes ill or incapacitated for labor for more than 30 days. 7. If the violence employed by the offender does not cause any of the serious physical injuries defined in Art.263, or if the offender employs Intimidation only. Special complex crimes penalties prescribed:

with

specific

1. Robbery with homicide is committed if original design is robbery and homicide was committed although homicide precedes the robbery by an appreciable time. If original design is not robbery but robbery was committed after homicide as an afterthought, offender committed two (2) separate offenses of robbery and homicide. The crime is still robbery with homicide if the person killed was an innocent bystander and not the person robbed and even if the death supervened by mere accident. When Robbery is consummated but Homicide is only attempted or frustrated, offender committed two (2) separate offenses. 2. In robbery with rape, the intent to commit robbery must precede rape. Prosecution of the crime need not by the offended party and the fiscal can sign the information. When rape and homicide co-exist in a robbery, rape should be considered as aggravating only and the crime is still robbery with homicide. 3. Robbery with intimidation is committed when the acts done by the accused, by their own nature or by reason of the circumstances, inspire fear in the person against whom the acts are directed. 4. Robbery with Intentional Mutilation when by reason or on the occasion of robbery, intentional mutilation is committed. Notes: If another robber is killed by his companion, it is still robbery with homicide. (Reyes, The Revised Penal Code: Book Two, 2017) ● The law does not require that the victim of the robbery be also the victim of the homicide. (People vs, Carunungan, CA-G.R. No. 9986-R, October 17, 1957) There is robbery with

homicide even if the person killed was an innocent bystander and not the person robbed. (People vs. Disimban G.R. No. L-1746, January 31, 1951)  It is not necessary to identify who among the conspirators inflicted the fatal wound on the victim. Once homicide is committed by reason or on the occasion of the robbery, the crime committed is robbery with homicide. (People vs. Sorila, Jr., G.R. No. 178540, June 27, 2008)  The homicide must have a direct relation to the robbery, regardless whether the latter takes place before or after the killing. (People vs. Comiling, G.R. No. 140405, March 4, 2004) ● If the original design does not comprehend robbery, but the robbery follows the homicide either as an afterthought or merely as an incident of homicide, then the malefactor is guilty of two separate crimes: murder or homicide, as the case may be and robbery. (People vs. Daniela, G.R. No. 139230, April 24, 2003) ● When homicide is not proved, the crime is only robbery; When robbery is not proved, the crime is only homicide. (Reyes, The Revised Penal Code: Book Two, 2017, p.700) Robbery with Rape 1. The offender must have the intent to take the personal property belonging to another with intent to gain and such intent must precede the rape. (People vs. Cruz, G.R. No. 101844, November 18, 1991) 2. If the original plan was to rape the victim and after the commission of the same also committed robbery when the opportunity presented itself, the offenses should be viewed as separate and distinct. (People vs. Candelario, G.R. No. 125550, July 28, 1991) 3. All the robbers may be held liable for robbery with rape even if not all of them committed the crime of rape based on the concept of conspiracy. (People vs. Balacanao, G.R. No. 118133, February 28, 2003) 4. There is no such crime as robbery with attempted rape. (Reyes, The Revised Penal Code: Book Two, 2017, p.703)

Robbery with Arson - In this case, it is essential that the robbery precedes the arson. There must be an intent to commit robbery and no killing, rape or intentional mutilation should be committed in the course of the robbery, or else, arson will only be considered as aggravating circumstance of the crime actually committed. Robbery with Serious Physical Injuries When only slight physical injuries or less serious physical injuries were inflicted, the accused is liable for simple robbery under Art. 294(5). (Ocampo vs. People, G.R. No. 163705, July 30, 2007) The offender who inflicted on another robber, physical injuries which later resulted in deformity would be liable for two (2) crimes: (1) Robbery (2) Serious physical injuries. The wording of the law says “upon any person not responsible for its commission”. (Reyes, The Revised Penal Code: Book Two, 2017, p.706) If the serious physical injuries were inflicted not in the course of the execution of robbery but after the taking of the personal property had been complete, the serious physical injuries mentioned should be considered as separate offense. (Ibid.) Simple Robbery - Paragraph 5 of this article is known as such because they only involve slight or less serious physical injuries, which are absorbed in the crime of robbery as element thereof. NOTE: for the requisite of violence to obtain in cases of simple robbery [under Art. 294], the victim must have sustained less serious physical injuries or slight physical injuries in the occasion of the robbery. (Caparas vs. People of the Philippines, G.R. No. 217722, September 26, 2018). Hence, in a case by which the accused snatched the victim’s necklace without the victim suffering from less serious physical injuries or slight physical injuries, the accused cannot be convicted of the crime of robbery under Art. 294. (Id.) Robbery with Violence vs. Grave Coercion Robbery with Grave Coercion Violence As to use of Violence Violence used by the Violence used by the offender. offender. As to Intent

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There is intent to gain.

No intent to gain but to compel another to do something against his will.

(Reyes, The Revised Penal Code: Book Two, 2006, p.683)

Robbery through Intimidation vs. Threats to Extort Money (I3G) Robbery through Threats to Extort Intimidation Money As to Intimidation Intimidation is actual Intimidation is and immediate. conditional or future. Intimidation is personal. Intimidation may be through an intermediary. Intimidation is directed Intimidation may refer only to the person of the to person, honor or victim. property of the offended party or his family. As to Gain The gain of the culprit is The gain of the culprit is immediate. not immediate.

(Id.)

P.D. No. 532 – Anti-Piracy and AntiHighway Robbery of 1974 Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway. Philippine Highway. It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. (Sec.2.c.) Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any

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person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code. Where the victim of the highway robbery was killed, the crime committed is Highway Robbery with Homicide. (Sec.4) P.D. No. 533 - THE RUSTLING LAW OF 1974

ANTI-CATTLE

Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/raiser, of any of the abovementioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser. (Sec.2.c.) Large cattle as herein used shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. (Sec.2.a.) Presumption of cattle rustling. Every person having in his possession, control or custody of large cattle shall, upon demand by competent authorities, exhibit the documents prescribed in the preceding sections. Failure to exhibit the required documents shall be prima facie evidence that the large cattle in his possession, control or custody are the fruits of the crime of cattle rustling. (Sec.7) ARTICLE 295 ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE AND BY A BAND, OR WITH THE USE OF FRIARM ON A STREET, ROAD, OR ALLEY Robbery with violence against or intimidation of persons is qualified when Nos. 3, 4, and 5 of Art. 294 is committed: 1. In an uninhabited place; 2. By a band (at least 4 armed malefactors); 3. By attacking a moving train, street car, motor vehicle or airship; 4. By entering the passenger’s compartments on a train, or in any manner, taking the

passengers thereof by surprise in the respective conveyances; or 5. On a street, road, highway, or alley, and the intimidation is made with the use of firearms.

ARTICLE 297 ATTEMPTED OR FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES

 Art. 295 applies only when the offenses described in subdivisions 3, 4 and 5 of Art. 294 are committed by a band. If robbery with violence against or intimidation is committed under subdivision 1 and 2, band shall be considered only as a generic aggravating circumstance. (People vs. Apduhan, G.R. No. L19491, August 30, 1968)

If physical injuries were inflicted on the victim, but no intent to kill was proved and the victim did not die, the liability of the offender may be as follows:

This article does not apply when: a. By reason of or by occasion of the robbery, the crime of homicide is committed; b. The robbery is accompanied by rape or intentional mutilation, or arson; or c. If by reason or on occasion of robbery, any of the serious physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted. (Reyes, The Revised Penal Code: Book Two, 2006, p.686) ARTICLE 296 DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF Band – when more than three armed malefactors take part in the commission of a robbery (People vs. Lumiwan, G.R. Nos. 122753-56, September 7, 1998). Requisites for liability for the acts of other members of the band: 1. He is a member of the band; 2. Present at the commission of robbery by that band; 3. Other members committed assault; and 4. He did not attempt to prevent the assault. Note: When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for the assault. (People vs. Pelagio G.R. No. L-16177 May 24, 1967); but when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than four (4) armed men, are liable for the special complex crime of robbery with homicide. (People vs. Fontanillas, et.al., G.R. No. L-25298, April 16, 1968)

1. If the physical injuries were by reason of the attempted or frustrated robbery as the means for the commission of the latter, the injuries are absorbed by the latter and the crime shall only be attempted or frustrated robbery; 2. If the physical injuries were inflicted only on the occasion of the aborted robbery but not employed as a means of committing the latter these will be separate crimes of attempted or frustrated robbery and physical injuries. 3. If both killing and physical injuries were committed on that occasion, the crime will be penalized in accordance with Art. 297 but the physical injuries will be absorbed. NOTES: ● The term “homicide” under Art. 297 is used in a generic sense. Hence, it includes multiple homicides, murder, parricide or even infanticide. (Reyes, The Revised Penal Code: Book Two, 2017, p.723) ● There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of robbery. (People vs. Casalme, et al., No. L-11057, June 29, 1957) ARTICLE 298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION Elements: (InCoVi) 1. The offender has Intent to defraud another; 2. The offender Compels him to sign, execute or deliver any instrument or documents; and 3. The Compulsion is by means of Violence or intimidation. NOTE: Art. 298 applies even if the document signed, executed or delivered is a private or commercial document. Art. 298 is not applicable

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if the document is void. (Reyes, The Revised Penal Code: Book Two, 2017, p.728) ARTICLE 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP Robbery with force upon things under subdivision (a) Elements: 1. That the offender entered (a) an inhabited place, or (b) public building, or (c) edifice devoted to religious worship; 2. That the entrance was effected by any of the following means: (OW-PiFi) a. Through an Opening not intended for entrance or egress; b. By breaking an Wall, roof, or floor or breaking any door or window; c. By using false keys, Picklocks or similar tools; or d. By using any Fictitious name or pretending the exercise of public authority. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. NOTES: The place entered must be a house or building. When the culprit enters a parked automobile through a window, the crime is theft if personal property was taken therefrom. (Reyes, The Revised Penal Code: Book Two, 2017, p.731) To constitute entering, the whole body of the culprit must be inside the building. (People vs. Adorno, C.A., 40 O.G. 567)

It is only theft when the false key or picklock must be used to open wardrobe or locked receptacle or drawer or inside door. (Reyes, The Revised Penal Code: Book Two, 2017, p.734) Robbery with force upon things under subdivision (b) – Elements: (IT:DoF) 1. That the offender is Inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it; 2. That the offender Takes personal property belonging to another, with intent to gain, under any of the following circumstances: a. By the breaking of Doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or b. By taking such Furniture or objects away to be broken or forced open outside the place of the robbery. NOTES:

Doors refer to inside doors of the house or

building. (Reyes, The Revised Penal Code: Book Two, 2017, p.735) When sealed box or receptacle is taken out of the house or building for the purpose of breaking it outside, it is not necessary that it is actually opened. (Reyes, The Revised Penal Code: Book Two, 2017, p.736) It is estafa or theft if the locked or sealed receptacle is not forced open in the building where it is kept or taken therefrom to be broken outside. (Ibid.) ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

The wall that was broken must be an outside wall, not a wall between rooms in a house or building; same with the door. (Reyes, The Revised Penal Code: Book Two, 2017, p.732)

NOTES:

“False keys” are genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock forcibly opened by the offender. (Art. 305)

● Maximum period of the penalty provided if robbery mentioned in the preceding article (Art. 299) is committed (a) in an uninhabited place; and (b) by a band.

“Picklocks or similar tools” are those specially adopted to the commission of the crime of robbery.

● “Uninhabited Place” is one where there are no houses at all, or a considerable distance from town, or where the houses are scattered at a

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great distance from each other. (People vs. Asibar, G.R. No. L-37255, October 23, 1982) ARTICLE 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING, OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES “Inhabited House” is any shelter, ship or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent therefrom when the robbery is committed. (Art. 301[1]; People vs. Tubog, G.R No. L-26284, November 17, 1926) “Public Building” is every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same; what makes a building public is the fact that the State or any of its agencies have title thereto. (Art. 301[4]) “Dependencies” are all interior courts, corrals, water houses, granaries, barns, coach-houses, stables or other departments or in closed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole. (Art. 301[2])

ARTICLE 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING Elements: 1. Offender entered an uninhabited place or a building which was not a dwelling house, public building, or an edifice devoted to religious worship; 2. Any of the following circumstances are present: (OOPSS) a. If the entrance has been effected through any Opening not intended for entrance or egress. b. If any wall, roof, floor or Outside door or window has been broken. c. If the entrance has been effected through the use of false keys, Picklocks or other similar tools. d. If any door, wardrobe, chest or by Sealed or closed furniture or receptacle has been broken. e. If any closed or Sealed receptacle was removed, even if the same be broken open elsewhere. NOTES: ●

The term “uninhabited place is an uninhabited building. (Reyes, The Revised Penal Code: Book Two, 2017, p.742)

●

When the property taken is a mail matter during any of the robberies defined in Arts. 294, 295, 297, 299, 300 and 302, the penalties next higher in degree than those provided in said article shall be imposed. (Art. 302 last paragraph)

●

In relation to Art. 299: the difference is that under Art. 299, the receptacle must be locked or sealed. In Art. 302, the receptacle must be closed or sealed. Thus, if the receptacle was merely closed but it was opened without breaking the same, the crime is theft. (Amurao, Book Two)

Requisites: (CIP) 1. Must be Contiguous to the building or edifice; 2. Must have an Interior entrance connected therewith; and 3. Must form Part of the whole. (Reyes, The Revised Penal Code: Book Two, 2017, p.740) Example: Small store located on the ground floor of the house belonging to the owner of the store is a dependency of the house. (U.S. vs. Ventura et. Al G.R. No. 13715. January 22, 1919) Orchards and other lands used for cultivation or production, even if closed, contiguous to the building and having direct connection therewith, are not dependencies. (Reyes, The Revised Penal Code: Book Two, 2017, p.740) NOTE: The place is still inhabited house even if the occupant was absent. (U.S. vs. Bajet, 25 Phil 105)

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ARTICLE 303 ROBBERY OF CEREALS, FRUITS, OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING When the robbery consists in the taking of cereals, fruits, or firewood, the culprit shall suffer the penalty next lower in degree that that prescribed in Art. 299 and 302. ARTICLE 304 POSSESSION OF PICKLOCKS OR SIMILAR TOOLS Elements: (PAL) 1. Offender has in his Possession picklocks or similar tools; 2. Such tools are especially Adopted for the commission of the crime of robbery; 3. The offender does not have Lawful cause for such possession.

Highway robbers or brigands – more than three armed persons forming a band of robbers for the purpose of committing robbery in the highway, or kidnapping persons for the purpose of extortion or to obtain ransom or for any other purpose to be attained by means of force and violence. (Reyes, The Revised Penal Code: Book Two, 2017, p.750) Elements: (4BRoOCK) 1. There are at least four (4) armed persons; 2. They formed a Band of Robbers; and 3. The purpose is any of the following: a. Commit robbery in the highway; or b. Kidnap persons for the purpose of extortion or to obtain ransom; or c. To attain by means of force and violence any Other purpose. Brigandage vs. Robbery in band (PNP)

NOTES: ● Actual use of picklocks or similar tools is not necessary in illegal possession thereof. (Reyes, The Revised Penal Code: Book Two, 2017, p.748) ● If the offender is a locksmith, the penalty is higher. (Ibid.) ● This is an exception to the general rule that preparatory acts are not punishable by law. ARTICLE 305 FALSE KEYS False Keys shall be deemed to include: (ToGA) 1. The Tools mentioned in the next preceding articles; 2. Genuine keys stolen from the owner; and 3. Any keys other than those intended by the owner for use in the lock forcibly opened by the offender. NOTE: A master key is a picklock and its mere possession is punishable. (People vs. Lopez, G.R. No. L–18766, May 20, 1995)

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ARTICLE 306 WHO ARE BRIGANDS

Brigandage Robbery in band As to Purpose Purpose is to: Commit Only to commit robbery in highway; robbery, and not Kidnappers for ransom; necessarily in the Other purpose to be highway. attained by means of force or violence. As to Number of robbery Agreement is to commit Only a particular several robberies. robbery. As to Punishable act Mere formation is Actual commission of punished. robbery is necessary.

(Reyes, The Revised Penal Code: Book Two, 2006, p.725)

Brigandage under Art. 306 vs. Brigandage under PD 532 (P2-VLC) Brigandage (Art. 306)

Anti-Piracy and Anti-Highway Robbery Law PD 532 As to Punishable Act Mere formation of band is Mere conspiracy to punishable. constitute the offense or brigandage is not punishable (presupposes that acts

defined are actually committed). As to Persons liable Offenders must be a band Offenders need not of robbers (there are more constitute a band. One than three armed person can commit the malefactors). crime.

NOTE: All are presumed highway robbers if any of them carries unlicensed firearm. (Reyes, The Revised Penal Code: Book Two, 2017, p.751) Streets within, as well as roads outside the cities are covered by the word “highway”. (U.S. vs. TanSeco, G.R. No. 1487, April 6, 1905)  No highway robbery or brigandage under PD 532 was committed on board a passenger jeepney. Such crime should be a special crime of Robbery with homicide. The mere allegation that the robbery took place on a highway was held not sufficient to define that the offense to Highway Robbery. Considering that the proof showed that the robbery was aimed not indiscriminately, the crime of robbery was the one intended. In the interpretation of an information, what controls is not the designation but the description of the offense charged. (Avecilla vs. People, G.R, No. 46370, June 2, 1992) ARTICLE 307 AIDING AND ABETTING A BAND OF BRIGRANDS Note: PD 532 is amendatory to Article 307 of RPC. Hence, the provision under Article 307 is not anymore controlling. ARTICLE 308 WHO ARE LIABLE FOR THEFT Theft – is committed by any person who, with intent to gain, but without violence against, or intimidation of persons or force upon things, shall take the personal property of another without the latter’s consent (Lozano vs. People, G.R. No. 165582, July 9, 2010). Elements of theft (PAG-CoV): 1. The taking of Personal property; 2. That the property belongs to Another; 3. That the taking is done with intent to Gain;

4. That it was done without the Consent of the owner; and 5. That it was accomplished without Violence or intimidation of persons nor force upon things. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; It is necessary to prove: (a) the time of the seizure of the thing; (b) it was a lost property belonging to another; and (c) the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so. Note: Delay in the delivery of lost property to the local authorities is immaterial, when the finder surrenders it to the owner when the latter came to his house to get it. (People vs. Carani, C.A., 1943 O.G. 60) 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Finder in fact – a person who finds a lost item. The case of the finder of a lost property affirms the fact that the offender obtains only physical possession of the thing. The finder in fact has an obligation to deliver the property to the owner if known, otherwise, surrender the property to the authorities. If he does not, he is liable for theft. Finder in law – he is an officer of the law to whom a lost item is surrendered or turned over. He is under the obligation to turn over the lost property which he received in trust while on duty. NOTES: ● The fishing referred to in this article is not fishing in the fishpond or fishery; otherwise it

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is qualified theft under Art. 310. (Reyes, The Revised Penal Code: Book Two, 2012, p. 745) ● Theft is not a continuing offense because in theft the phrase used is “shall take personal property”. (Duran vs. Tan, G.R. No. L–2760, February 11, 1950) ● “Intent to gain” means not only the acquisition of a thing useful to the purpose of life but also the benefit which in any other sense may be derived or expected from the act which is performed. (People vs. Padilla, G.R. No. 03281-R, March 6, 1964) ● “Unlawful taking” in the juridical sense, consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation as he could dispose of it at once. (People vs. Naval, G.R. No. 8230-R, September 30, 1948) Therefore, taking in theft need not have the character of permanency.  There is no crime of frustrated theft. (People vs. Villanueva, G.R. No. 160188, June 21, 2007)  Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. (People vs. Obillo, G.R. No. 139323, June 6, 2001)  Intangible properties such as electrical energy and gas may be proper subjects for theft. (U.S vs. Carlos, G.R. No. 6295, September 1, 1911)  A joyride in an automobile taken without the consent of its owner constitutes taking with intent to gain. (People vs. Fernandez, C.A., 38 O.G. 985) ● A policeman shall be considered as the finder of lost property. If the policeman fails to deliver the lost property to the owner, he is liable for theft. Appropriating the property by the policeman is of the same character of that made by one who originally found the same (Campanilla, Criminal Law Reviewer Volume II, 2019, p. 370; People vs. Avila, G.R. No. L-19786, March 31, 1923).

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Robbery vs. Theft (E3CoF) Robbery Theft (Art. 293) (Art. 308) As to Elements (3) Both involve unlawful taking as element. Both involve personal property belonging to another. There is intent to gain. As to Commission The taking is done with There is no employment the use of violence or of violence or intimidation intimidation of persons. of persons. As to use of Force upon things Use of force upon things No use of force upon is employed to enter a things is employed. building or to break a furniture chest or other locked or sealed receptacle in the house or building or take them therefrom and break outside.

R.A. No. 7832 - Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994 punishes theft of electric power transmission lines and materials. P.D. No. 534 defines illegal fishing and prescribes stiffer penalties therefor.

[See further discussions on Special Penal Laws] ARTICLE 310 QUALIFIED THEFT Theft is considered qualified if committed by or with any of the following acts: (DAMCoFiTy) 1. By a Domestic servant; 2. With a grave Abuse of confidence; 3. If the property stolen is a Mail matter, or large cattle or motor vehicle; 4. If the property stolen consist of Coconuts taken from the premises of the plantation; 5. If the property stolen consist of Fish taken from a fishpond or a fishery; and 6. If the property is taken on the occasion of fire, Typhoon, earthquake, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.

NOTES: ● Theft by a domestic servant is always qualified theft. It need not be shown that there was grave abuse of confidence. (Reyes, The Revised Penal Code: Book Two, 2017, p.782) ● To constitute “grave abuse of confidence”, the second kind of qualified theft, there must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance between the accused and the offended party, that has created a high degree of confidence between them, which the accused abused. (People vs. Koc Song, G.R. No. L-45043, August 29, 1936) ● If the motor vehicle was not taken by the offender but delivered by the owner or possessor to the offender who, thereafter, misappropriated the same, the crime is Qualified Theft. ● Qualified Theft of a motor vehicle is the crime committed if only material or physical possession was yielded to the offender, otherwise, if juridical possession is also transferred, the crime is Estafa. ● Penalty under this article is two degrees higher than that provided in Art. 309. PD 1612 – Anti-Fencing Law of 1979 - mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

[See further discussions on Special Penal Laws] ARTICLE 311 THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM Theft of property on national library and museum has a fixed penalty regardless of value of property taken.

ARTICLE 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Elements: (U-BIG) 1. That the offender takes possession of real property or Usurps any real rights in property; 2. That the real property or real rights Belong to another; 3. That violence against or Intimidation of persons is used by the offender in occupying real property or usurping real rights in property; and 4. That there is intent to Gain. Acts Punishable: 1. By taking possession of any real property belonging to another by means of violence against or intimidation of persons; or 2. By usurping any real rights in property belonging to another by means of violence against or intimidation of persons. Two-Tiered/Two-Layered Penalty – This article provides for two–layered penalty: a. The penalty for the acts of violence; and b. The penalty of fine for the usurpation. NOTES:  If the usurpation was committed with killing or physical injuries, the penalty for robbery with homicide or robbery with serious physical injuries will be imposed. Usurpation of real property is similar to robbery except that in robbery, personal property is involved. Art. 312 provides a single, albeit two-tiered, penalty consisting of a principal penalty, which is that incurred for the acts of violence, and an additional penalty of fine based on the value of gain obtained by the accused. This is clear from the clause “in addition to the penalty incurred for the acts of violence executed by him.” For want of a better term, the additional penalty may be designated as an incremental penalty. (People vs. Alfeche, Jr., G.R. No. 102070, July 23, 1992)  There is only civil liability if there is no violence or intimidation in taking possession

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of real property. (People vs. Dimacutak et. al, CA O.G. 1389) Theft or Robbery and Usurpation of Real Property, distinguished (CObI) Theft or Robbery (Art. 308/Art.293)

Usurpation of Real Property (Art. 312) As to Commission

There is taking.

There is occupation or usurpation. As to Object of the crime

Personal taken

property

There is real property or real right involved. As to Intent

There is intent to gain.

(Reyes, The Revised Penal Code: Book Two, 2006, p.770)

ARTICLE 313 ALTERING BOUNDARIES OR LANDMARKS Elements: 1. There are boundary marks or monuments of towns, provinces, or estates, or any other marks, intended to designate boundaries of the same; and 2. Offender alters said boundary marks. NOTE: Intent to gain is not necessary. Mere alteration of the boundary marks of monuments intended to designate the boundaries of towns, provinces or estate is punishable. (Reyes, The Revised Penal Code: Book Two, 2017, p.804) ARTICLE 314 FRAUDULENT INSOLVENCY Elements: (DAP) 1. Offender is Debtor (he has obligations due and demandable); 2. He Absconds with his property; and 3. There is Prejudice to his creditors. NOTES: ● Unlike in Insolvency Law, Art. 314 does not require for its application that the criminal act should have been committed after the institution of insolvency proceedings. (Reyes, The Revised Penal Code: Book Two, 2017, p.806)

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● It is also not necessary that the defendant should have been adjudged bankrupt or insolvent. (People vs. Chong Chuy Limgobo, G.R. No. L-20995, October 30, 1923) ARTICLE 315 SWINDLING (ESTAFA) Ways of Committing Estafa 1. With unfaithfulness or abuse of confidence, namely: a. By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration; b. By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond, or by denying having received such money, goods, or other property; and c. By taking undue advantage of the signature of the offended in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person. 2. By means of any of the following false pretenses of fraudulent acts executed prior to or simultaneously with the commission of the fraud: a. By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; b. By altering the quality, fineness or weight of anything pertaining to his art or business; c. By pretending to have bribed any Government employee, without prejudice to the action for calumny, which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty;

d. By post-dating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act; and 3. Through any of the following fraudulent means: a. By inducing another, by means of deceit, to sign any document; b. By resorting to some fraudulent practice to insure success in a gambling game; and c. By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers. Elements of Estafa in General: 1. The accused defrauded another (a) by abuse of confidence, or (b) by means of deceit. 2. Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. NOTES: ● “Fraud” – in the general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions and concealment involving a breach of legal equitable duty, trust, or confidences justly reposed resulting in damage to another. (Garcia vs. People, G.R. No. 144785, September 11, 2003) ● “Deceit” – a specie of fraud. It is actual fraud and consists in any false representation or contrivance whereby one person overreaches and misleads another, to his hurt. (People vs. Romero, G.R. No. 112985, April 21, 1999) ● If there is no deceit and no abuse of confidence, there is no estafa, even if there is damage. There is only civil liability. (Reyes, The Revised Penal Code: Book Two, 2006, p.843) ● There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally through his own acts, and his mere negligence

in allowing another to take advantage of or benefit from the entrusted chattel cannot constitute estafa. (Serona vs. CA, G.R. No. 130423, November 18, 2002) Estafa with unfaithfulness or abuse of confidence Estafa committed through unfaithfulness – par. 1–A, Art. 315 Elements: (AD-On) 1. The offender has an Onerous obligation to deliver something of value; 2. He Alters its substance, quantity, and quality; and 3. Damage or prejudice is caused to another. NOTE: When there is no agreement as to the quality of the thing to be delivered, the delivery of the thing not acceptable to the complainant is not estafa. (People vs. Bastiana, G.R. No. 15516-R, February 18, 1958) Estafa committed through abuse confidence – par. 1–B, Art. 315

Elements: (ReMis-PreDe) 1. That money, goods, or other personal property be Received by the offender in trust, or on commission, or for administration, or under any obligation involving the duty to make delivery or, or return the same; 2. That there be Misappropriation or conversion of such money or property of the offender; or denial on his part of such receipt; 3. That such misappropriation or conversion or denial causes Prejudice to another; and 4. That there is Demand made by the offended party to the offender. 3 ways of committing estafa with abuse of confidence (MisConDe) a. By Misappropriating the thing received; b. By Converting the thing received; and c. By Denying that the thing was received. NOTE: ● The element of demand is not necessary when there is evidence of misappropriation of the

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●

goods by the defendant. (Lim vs. Court of Appeals, G.R. No. 102784, February 28, 1996) Failure to turn over to the bank proceeds of the sale of goods covered by trust receipts is Estafa. (Reyes, The Revised Penal Code: Book Two, 2017, p.816) When the ownership of the thing is transferred to the person who has received it, his failure to return it will give rise to civil liability only. (People vs. Ma Su, 90 Phil 706) Pledging a thing by the accuse which was received by him only to be sold on commission constitutes estafa. (U.S. vs. Torres G.R. No. 4109, March 21, 1908) Selling the thing on credit is estafa. This is based on the rule that “to appropriate to one’s own use includes not only conversion to one’s personal advantage but every attempt to dispose of the property of another without right (Reyes, The Revised Penal Code: Book Two, 2017, p.826)

Estafa with abuse of confidence Malversation, distinguished (N2P2C)

vs.

Estafa with abuse of Malversation confidence (Art. 217) (Art. 315) As to Nature (2) Both are entrusted with funds or property. As to Property involved Funds or property are Usually involves public usually private. funds or property As to Persons liable Offender is private Offender is usually a individual or public officer public officer accountable who is not accountable for public funds or for public funds or property. property. As to Commission Crime is committed by Crime is committed by misappropriating, appropriating, taking or converting or denying misappropriating or having received money, consenting, or, through goods or property. abandonment or negligence, permitting any other person to take the public funds or property.

(Reyes, The Revised Penal Code: Book Two, 2017, p.807-808)

Estafa by taking undue advantage of the signature in blank – par. 1–C, Art. 315 Elements: (Pa-LDA) 1. The Paper with the signature of the offended party be in blank; 2. The offended party should have Delivered it to the offender; 3. That above the signature of the offended party a blank document is written by the offender without Authority to do so; 4. The document so written creates a Liability of, or causes damage to, the offended party or any third person. Estafa by means of deceit Elements: (FERD) 1. That there must be a False pretense, fraudulent act or fraudulent means committed by the accused as to his power, influence, qualification, credit, agency, business or imaginary transaction; 2. That such false pretense, fraudulent act or fraudulent means must be made or Executed prior to or simultaneously with the commission of fraud; 3. The offended party must have Relied on the false pretense, fraudulent act or fraudulent means; and 4. That as a result thereof, the offended party suffered Damage. NOTE: Note the phrase “prior to or simultaneously with the commission of fraud”. When the complainant was aware of the fictitious nature of the offense, there is no estafa through false pretense. (People vs. Concepcion, G.R. No. 19192, Feb 28, 1923) In estafa by means of deceit, the juridical and physical possession of the thing was transferred whereas in theft, only material possession is transferred (People vs. Escalante, C.A., 59 O.G. 718). Estafa by using fictitious name–Par. 2–A, Art. 315

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Three Ways of Commission: 1. By using fictitious name; 2. By falsely pretending to possess power, qualifications, credit, business, influence, property, agency, imaginary transactions; and 3. By means of other similar deceits.

●

NOTES: ● There is use of fictitious name when a person uses a name other than his real name. Thus, when a person found a pawnshop ticket in the name of another, and using the name of that another person, redeemed the jewelry mentioned therein, he committed estafa by using fictitious name. (People vs. Yusay, G.R. No. L–26957, September 2, 1927) ● A person who is convicted of illegal recruitment may, in addition, be convicted of estafa under Art. 315(2)(a). (People vs. Sagaydo, G.R. Nos. 124671-75, September 29, 2000) ● A creditor who deceived his debtor is liable for estafa. (People vs. Rubaton C.A. 65 O.G. 5048) Estafa by altering anything pertaining to his art or business–Par. 2–B, Art. 315 NOTE: There is a complex crime of theft and estafa. (People vs. Yusay, G.R. No. 26957, September 2, 1927) Estafa by pretending to have bribed any Government employee–Par. 2–C, Art. 315 Estafa by issuing postdated check–Par. 2– D, Art. 315 Elements: (PDF) 1. The offender Postdated a check, or issued a check in payment of an obligation; 2. Such postdating or issuing a check was done when the offender had no Funds in the bank, or the funds deposited therein were not sufficient to cover the amount of the check; and 3. There is Damage to the payee NOTES: ● This paragraph applies to obligation that is not pre-existing, or the check is drawn to enter

●

into an obligation. (Reyes, The Revised Penal Code: Book Two, 2006, p.821) It is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. It does not cover checks where the purpose of drawing the check is to guarantee a loan because a loan is not an obligation as contemplated in this paragraph. (Pacheco vs. Court of Appeals, G.R. No. 126670, December 2, 1999) The check must be genuine – if the check is falsified and is cashed with the bank or exchange for cash, the crime is estafa thru falsification of a commercial document. (Reyes, The Revised Penal Code: Book Two, 2006, p.820) When postdated checks are issued and intended by the parties only as a promissory note, there is no estafa even if there are no sufficient funds in the bank to cover the same. (People vs. Obieta CA-52 O.G. 065224) P. 22 vs. Estafa under Art. 315, 2[D] (LiP2-ON2E) Bouncing Check Law Estafa (BP 22) (Art. 315, 2[d]) As to Liability of Endorser Endorser is not liable Endorser may be liable if unless there is conspiracy he acted with deceit knowing that the check is worthless. As to Purpose of the check Check is issued for the Check is issued to obtain purpose of applying on valuable consideration account or for value. from the payee. As to Obligation covered Covers even payment of pre-existing obligation.

In payment of an obligation contracted at the time of the issuance and delivery of the check. As to Elements (2) Deceit and damage is not Deceit and damage is an an essential element. essential element. As to Period of Payment The drawer is given 5 The drawer is given 3 banking days after calendar days after receiving notice of receiving notice of dishonour within which dishonour within which to pay. to pay. As to Nature of the crime (2) Crime against public Crime against property. interest. Mala prohibitum Mala in se

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[See further discussion of B.P. 22 on Special Penal Laws]

(Reyes, The Revised Penal Code: Book Two, 2017, p.876)

NOTE: The filing of the two sets of Information under the provisions of B.P. 22 and under Art. 315(2)[d] of the RPC, although may refer to identical acts committed by petitioner for the same act, is not prohibited. (Nierras vs. Dacuycuy, G.R. Nos. 59568-76 January 11, 1990)

Estafa by removing, concealing or destroying court records vs. Infidelity in the Custody of Documents (CoPI)

Estafa through any fraudulent means:

the

following

Estafa by inducing another to sign any document–Par. 3–A, Art. 315 Elements: (IDS-Pre) 1. Offender Induces the offended party to sign a document; 2. Deceit be employed to make him sign the document; 3. The offended party personally Signed the document; and 4. Prejudice is caused to the offended party. NOTE: If the offended party willingly signed the document and there was deceit as to the character or contents of the document, the crime committed is falsification. But where the accused made representation as to mislead the complainant as to the character of the documents, the crime is estafa. (U.S. vs. Barnes, G.R. No. 4774, November 18, 1908) Estafa by resorting to some fraudulent practices to insure success in gambling– Par. 3–B, Art. 315 Estafa by removing, concealing, destroying, in whole or in part, any court record, office files, document or any other papers–Par. 3–C, Art. 315 Elements: (CoRD) 1. There is a Court, document, office files or any other papers; 2. The offender Removed, concealed, destroyed any of them; and 3. The offender had intent to Defraud another. Note: If there is no intent to defraud, the act of destroying court record will be malicious mischief.

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Estafa by removing, Infidelity in the concealing or Custody of destroying court Documents records (Art. 266) [Art. 315(3)(c)] As to Commission Same manner of committing the crime. As to Persons liable Offender may be any Offender is a public person who is not officer who has official officially entrusted with custody of public or the documents. official documents. As to Intent There is an intention to Intention to defraud is defraud. not a necessary element.

(Reyes, The Revised Penal Code: Book Two, 2006, p.842)

ARTICLE 316 OTHER FORMS OF SWINDLING The penalty of arresto mayor in its minimum and medium period and a fine of not less than the value of the damage caused and not more than three times such value shall be imposed upon: 1. Any person who, pretending to be owner of any real property shall convey, sell, encumber or mortgage the same Elements: (IREP) a. That the thing be Immovable, such as parcel of land or building; b. Offender who is not the owner of said property should Represent that he is the owner thereof; c. Offender should have Executed an act of ownership over the real property such as selling, encumbering, leasing, mortgaging; and d. The act is Prejudicial to the owner or a third person. Note: Even if deceit is practiced against the second purchaser and damaged is incurred by the

first purchaser, there is a violation if Art. 316(1). (U.S. vs. Drilon G.R. No. 12502 September 6, 1917) 2. Any person who, knowingly that the real property is encumbered, shall dispose of the same, although such encumbrance be not recorded Elements: (RE2D) a. The thing disposed of is a Real property b. The offender knew that the real property was Encumbered, whether the encumbrance be recorded or not; c. There must be Express representation by the offender, that the real property is free from encumbrances; and d. The act of Disposing of the real property be made to the damage of another. Note: When the loan had already been granted when defendant offered the property as security for payment of loan, Art. 316(2) is not applicable. (Dissenting – People vs. Rubia Vda. De Torres, 62 O.G. 9270) 3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to be prejudice of the latter of any third person Elements: (POL-Pre) a. The offender is the Owner of any personal property; b. Said personal property is in the lawful Possession of another; c. The offender wrongfully takes it from its Lawful possessor; and d. Prejudice is thereby caused to the possessor or any third person. 4. Any person who, to be prejudice of another shall execute any fictitious contact; 5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor; and 6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before

being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation. Elements: (SurGES:ACRe) a. The offender is a Surety in a bond given in a criminal or civil action; b. He Guaranteed the fulfillment of such obligation with his real property or properties; c. He sells, mortgages, or in any other manner Encumbers said real property; and d. Such sale, mortgage or encumbrances is: i. Without express Authority from the court; ii. Made before Cancellation of his bond; or iii. Before being Relieved from the obligation contracted by him.

Special Penal Laws

R.A. 8042 – Migrant Workers and Overseas Filipinos Act of 1995 Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

[See further discussion on Special Penal Laws] Pres. Decree No. 1689 - Swindling by Syndicate Any person or persons who shall commit estafa or other forms of swindling as defined in Art. 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by

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corporations/associations public.

from

the

general

When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos. (Sec. 1, P.D. No. 1689)

[See further discussion on Special Penal Laws] Note: Syndicated Estafa may be committed through a Ponzi scheme. (People vs. Tibayan, G.R. No. 209655-60, January 14, 2015)

Acts Punishable: (DP) 1. By Defrauding or damaging another by any other deceit not mentioned in the preceding articles; and 2. For Profit or gain doing any of the following: interpreting dreams, telling fortunes, making forecasts; or taking advantage of credulity of the public in any other similar manner. NOTE: This is an all catch provision, in that, if Arts. 315-317 does not apply, and then utilize this to charge the offender. (Guinhawa vs. People, G.R. No. 162822, August 25, 2005) 

ARTICLE 317 SWINDLING A MINOR Elements: (In2-ConTra) 1. The offender takes advantage of the Inexperience or emotions or feelings of a minor; 2. He Induces such a minor to assume any obligation, or give any release, or to execute a transfer of any property right; 3. The Consideration is some loan of money, credit, or other personal property; and 4. The Transaction is to the detriment of such minor. Note: If property is a real property, Art. 318 applies; minor cannot convey real property without judicial authority. ARTICLE 318 OTHER DECEITS

An employee who receives cash advance from his employer for his travel expenses and who fails to return the unspent amount is not liable for estafa because ownership of the money was transferred to him. He has no legal obligation to return the same money. (Kim vs. People, G.R. No. 84719, January 25, 1991)

 The failure of an entrustee to turn over the proceeds sale of the goods covered by the Trust Receipt is Estafa. He has the legal obligation to turn over the proceeds of the sale. (Allied Banking Corp. vs. Sec. Ordonez, G.R. No. 82495: December 10, 1990) ARTICLE 319 REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY Acts Punishable: 1. By knowingly removing personal property.

any

mortgaged

Elements: (FaP2)

Elements (MoK-ReP-No):

1. That the person commits acts of False pretenses, fraudulent acts or pretenses other than those mentioned in Art. 315, 316 and 317; 2. That such false pretense, fraudulent acts or pretenses were made and executed Prior to or simultaneously with the commission of the fraud; and 3. As a result, the offended party suffered damage or Prejudice.

a. Personal property is Mortgaged under the Chattel Mortgage Law; b. The offender Knows that such property is so mortgaged; c. He Removes such mortgaged personal property to any province or city other than the one in which it was located at the time of execution of the mortgage; d. The removal is Permanent; and e. There is No written consent of mortgagee, executors or administrators or assigns to such removal.

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2. By selling or pledging personal property already pledged. Elements (ChaP-No): a. Personal property is already pledged under the terms of the Chattel Mortgage Law; b. The offender, who is the mortgagor of such property, sells or Pledges the same or any part thereof; and c. There is No consent of the mortgagee, written on the back of the mortgage and noted on the records thereof in the Office of the Register of Deeds. ARTICLES 320-326-B

[Some articles were amended or repealed by P.D. 1613; RA No. 7659 revived Article 320 of RPC] Arson – when any person burns or sets of fire to the property of another, or his own property under circumstance which expose to danger the life or property of another. Kinds of Arson: 1. Simple Arson (Sec. 1, P.D. No. 1613) 2. Destructive Arson (Art. 320, as amended by R.A. 7659) 3. Other Cases of Arson (Sec. 3, P.D. No. 1613) Presidential Decree No. 1613, amending Law on Arson Sec. 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. Sec. 2. Destructive Arson. The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored.

2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. 5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 7. Any building, whether used as a dwelling or not, situated in a populated or congested area. Sec. 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugar mill, cane mill or mill central; and 6. Any railway or bus station, airport, wharf or warehouse. Sec. 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it's planned or carried out by a group of three (3) or more persons. Sec. 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death

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results, the penalty of Reclusion Perpetua to death shall be imposed.

DESTRUCTIVE ARSON (Art. 320 of RPC, as amended by R.A. No. 7659)

Sec. 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima facie evidence of arson:

Art. 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed upon any person who shall burn:

1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim.

1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, committed on several or different occasions. 2. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as, but not limited to, official governmental function or business, private transaction, commerce, trade, workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyances or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. 4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. 5. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance.

Sec. 7. Conspiracy to commit Arson. Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period. Sec. 8. Confiscation of Object of Arson. The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part.

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Irrespective of the application of the above enumerated qualifying circumstances, the penalty of reclusion perpetua to death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission or another violation of law.

The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn: 1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordnance, storehouse, archives or general museum of the Government. 2. In an inhabited place, any storehouse or factory of inflammable or explosive materials. If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed. Notes: ● Burning of houses is considered as simple arson under P.D. No. 1613. (People vs. Soriano, G.R. No. 142565, July 29, 2003) ● In attempted arson, it is not necessary that there be fire. (Reyes, The Revised Penal Code: Book Two, 2006, p.883) ● If a person is able to light or set fire to the rags but the fire was put out before any part of the building was burned, it is frustrated arson. (U.S. vs. Valdez, G.R. No. L-14128, December 10, 1918) ● Whether the crime is described as simple arson, arson resulting to death, or special complex crime of arson with homicide, homicide shall not be considered as a separate crime. Arson, regardless of its description, will absorb homicide. Arson, regardless of its description, is punishable under Sec. 5 of PD No. 1613 and Art. 320 of the Revised Penal Code, both of which prescribes a grave penalty where arson is committed with a resulting death. ● Arson under PD No. 1613 is considered as treason when it is committed by a person 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. (Sec. 3, R.A. No. 9372) Note: Arson is not a predicate crime of terrorism under R.A. No. 11479, which is the law that repealed R.A. No. 9372.

Arson vs. Homicide/Murder, distinguished: 1. If the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson and the resulting homicide is absorbed. 2. If the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is murder only. 3. If the main objective is to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed – homicide/murder and arson. (People vs. Baluntong, G.R. No. 182061, March 15, 2010, citing People vs. Malingan) ARTICLE 327 WHO ARE LIABLE FOR MALICIOUS MISCHIEF Malicious Mischief - willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive (Reyes, The Revised Penal Code: Book Two, 2017, p.922). Nature: Malicious Mischief cannot be attempted or frustrated. It is always consummated. Only personal property may be subject of Malicious Mischief. Elements: (Da2Co) 1. Offender deliberately caused Damage to the property of another; 2. Such act does not Constitute arson or other crimes involving destruction; and 3. It was committed merely for the sake of Damaging it. NOTES: ● The third element presupposes that offender acted due to hate, revenge or evil motive. (Reyes, The Revised Penal Code: Book Two, 2017, p.924) ● It is still malicious mischief if the act of damaging another’s property was inspired, not by hatred or by a desire for revenge, but

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by the mere pleasure of destroying. (People vs. Siddayao, C.A., 53 O.G. 8163) ● If there is no malice in causing the damage, the obligation to repair or pay for the damages is only civil. (People vs. Tayucon, G.R. No. 18244R, January 23, 1959) ● This article does not refer to mischief resulting from a crime, such as the damages caused by a robber in breaking the window, for the reason that such damages are mere incidents of the crime of robbery. Hence, the damage of property must not result from a crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.925, citing Guevara) ● If after damaging the property, the offender removes or makes use of the fruits or objects of the damage, it is theft. (Ibid.) Malicious Mischief The cause of destruction should not be by fire. The crime is committed by dolo. By causing damage and obstruction to means of communication is without prejudice to the criminal liability act such as homicide, murder, mutilation and physical injuries; separate crimes are committed with separate penalties. (Art.

Arson the moment fire is used to destroy property. The crime is committed either by dolo or culpa. When death results in arson, the crime is the special complex crime of arson with homicide.

(People vs. Jugueta, G.R. No. 202124, April 05, 2016)

330)

ARTICLE 328 SPECIAL CASES OF MALICIOUS MISCHIEF Acts Punishable: (O-PIN) 1. Causing damage to Obstruct the performance of public functions; 2. Using any Poisonous or corrosive substance; 3. Spreading any Infection or contagion among cattle; and 4. Causing damage to the property of the National Museum, National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public. NOTE: This mischief mentioned in No. 1 above is to be distinguished from sedition (Art. 139), in that the element of public and tumultuous uprising is not present in this crime. (Reyes, The Revised Penal Code: Book Two, 2006, p.890)

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ARTICLE 329 OTHER MISCHIEFS Mischiefs not included in Art. 328 are punished according to the value of the damaged caused. a. By arresto mayor in its medium and maximum periods, if the value of the damage caused exceeds 1,000 pesos; b. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does not exceed 1,000 pesos; and c. By arresto menor or fine of not less than the value of the damage caused and not more than 200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated. ARTICLE 330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION This crime is done by damaging railways, telegraph or telephone lines. NOTES: ● “Railway systems” includes electric wires, traction cables, signal system and other things pertaining to railway. ● Removing rails from railway track to cause destruction constitutes crime involving destruction under Art. 324. ● Art. 330 is not applicable when the damaged telegraph/phone lines do not pertain to a railway system. Hence, cutting telephone lines or those for transmission of electric power/light not pertaining to railways is not covered by this article. (Reyes, The Revised Penal Code: Book Two, 2017, p.929) ● If people are killed as a result of the damage caused and the offender had no intent to kill, the crime is damages to means of communication with homicide. If there is intent to kill and damaging the railways was the means to accomplish the criminal purpose, the crime is murder. (Ibid.) ● If the damage shall result in any derailment of cars, collision or other accident, a higher penalty shall be imposed. ● Derailment of cars should not have been purposely sought for.

ARTICLE 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS, OR PAINTINGS Acts Punishable: 1. Destroying or damaging statues or any other useful or ornamental public monument; and 2. Destroying or damaging any useful or ornamental painting of a public nature. ARTICLE 332 PERSONS EXEMPT FROM CRIMINAL LIABILITY Crimes involved in the exemption: a. Theft; b. Swindling (Estafa); and c. Malicious Mischief. Persons exempted from criminal liability (SAD-WiBS) 1. Spouses, Ascendants and Descendants, or relatives by affinity in the same line; 2. The Widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and Sisters and brothers-in-law and sisters-in-law, if living together. NOTES: ● No criminal but only civil liability shall result from the commission of only said crimes, committed or caused mutually by those persons. (Art. 332[1]) ● “Spouses” cover common-law spouses. ● “Relatives” include stepfathers and step mothers, illegitimate and adopted children. ● The exemption does not apply to strangers who participates in the commission of the crimes. (last par. Art. 332) ● The exemption does not apply if the crimes of theft, swindling and malicious mischief are complexed with another crime. (Intestate Estate of Manolita Gonsales Vda. De Carungcong vs. People, G.R. No. 181409, February 11, 2010)

● The relationship by affinity created between the surviving spouse and the blood relatives of the deceased spouse survives the death of either party to the marriage which created the affinity. (Intestate Estate of Manolita Gonsales Vda. De Carungcong vs. People, supra) ● Reason for the Exemption: the law recognizes presumed co-ownership of property between offender and offended party. (Reyes, The Revised Penal Code: Book Two, 2017, p.932) J. CRIMES AGAINST CHASTITY (ARTICLES 333-346) ARTICLE 333 WHO ARE GUILTY OF ADULTERY Elements: (MaSK) 1. The woman is Married; 2. She has Sexual intercourse with a man not her husband; and 3. As regards the man with whom she had sexual intercourse, he must Know her to be married. NOTES: ● Each sexual intercourse constitutes a crime of adultery. It is NOT a continuing offense. (Fernandez vs. Lantin, G.R. No. L-44759, December 17, 1976) ● It is not necessary that there be a valid marriage between the offended husband and the offending wife. Art. 333 uses the phrase “even if the marriage be subsequently declared void.” The marriage may suffer from a legal defect but until there is judicial declaration of nullity of the marriage, the marriage is presumed to be legal and valid. (U.S. vs. Mata, G.R. No. 6300, March 2, 1911) ● After the marriage has been declared void ab initio by the court, the innocent spouse can no longer file any complaint for adultery. (Pilapil vs. Ibay-Somera, G.R. No. 80116, June 30, 1989) Requisites for Pardon (Art. 344): a. Must come before the institution of the criminal prosecution; and b. Both offenders must be pardoned.

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NOTES: ● If the offended party pardons only the wife, the dismissal of the case shall not prosper. The offended spouse must pardon both the offending spouse and the co-defendant man. (People vs. Infante, G.R. No. 36270, August 31, 1932) ● Pardon may be given at any stage of the institution of the crime, since it is not a crime de officio. It is a private crime in which the only person who may institute the crime is the lawful and current offended spouse. ● An act of intercourse subsequent to the adulterous conduct implies a pardon. (People vs. Muguerza, et. al., 13 C.A. Rep. 1079) ● The evidence and complainant’s conduct

warrant the inference that he consented to the adulterous relations existing between the accused and therefore he is not authorized by law to institute this criminal proceeding. (People vs.vs. Sensano and Ramos, G.R. No. L-37720, March 27, 1933)

ARTICLE 334 CONCUBINAGE Elements: (MKSiCK) 1. The man must be Married; 2. He committed any of the following acts: a) By Keeping a mistress in the conjugal dwelling; b) By having Sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or c) By Cohabiting with a woman who is not his wife in any other places.; and 3. That as regards to the woman, she must Know him to be married. NOTES: ● Conjugal dwelling- a house, constructed from the proceeds of the sale of conjugal properties of the spouses, especially where they had intended it to be so. The fact that the wife never had a chance to reside therein and that the husband used it with his mistress instead, does not detract from its nature. (People vs. Cordova, G.R. No. 19100-R, June 23, 1959)

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● Scandal produced by the concubinage of a married man occurs when: o He and his mistress lived in the same room of a house; o They appear together in public; and o Perform acts in sight of the community which give rise to criticism and general protest among the neighbors. ● Cohabit - to dwell together, in the manner of husband and wife, for some period, as distinguished from occasional, transient interviews for unlawful intercourse. (People vs. Pitoc, et. al., G.R. No. 18513, September 18, 1922) ● The pendency of the case for declaration of nullity of marriage is not a prejudicial question to a concubinage case. (Beltran vs. People, G.R. No. 137567, June 20, 2000) ● A married man is liable for concubinage only when he does any of the three acts specified in Art. 334. If his sexual relations with a woman not his wife is not any one of them, he is not criminally liable. (People vs. Santos, et. al., C.A., 45 O.G. 2116) ● When a married man commits infidelity with a married woman, he offends his wife and the husband of the other woman. He also violates two provisions of the law. Hence, he can be both liable for adultery and concubinage for the same act of illicit intercourse if his wife and the offended husband of his paramour files a separate complaint against him and the offending wife (Del Prado vs. De La Fuente, G.R. No. 9274, September 14, 1914). ARTICLE 335. Rape - This provision has been repealed. ARTICLE 336 ACTS OF LASCIVIOUSNESS Acts of lasciviousness is committed by any person who commits an act of lasciviousness upon other persons of either sex: (1) through force or threat; (2) when the offended party is deprived of reason or otherwise unconscious; or (3) when the offended party is under 12 years of age. (Article 336) The modes of, or circumstance in, committing acts of lasciviousness are the same as those in rape under the old version. (People vs. Garcia, G.R. No. 200529, September 19, 2012; People vs. Rellota, G.R. No. 168103, August 3, 2010)

NOTES: ● “Lewd” means obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on a wanton manner. (People vs. Lizada, G.R. No. 143468-71, January 24, 2003) ● When there is no lewd design, the offender may only be convicted of unjust vexation. ● There is neither attempted nor frustrated acts of lasciviousness. From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose and, from that moment, all the essential elements of the offense have been accomplished. (People vs. Falmularcano, G.R. No. 197-R, February 28, 1947) ● The acts of embracing, kissing of a woman arising either out of passion or other motive and the touching of her breast as mere incident of the embrace without lewd design constitutes merely unjust vexation. (People vs. Ignacio, CA-G.R. No. 5119-R, September 30, 1950) ● Where the kissing, embracing and the touching of the breast of a woman are done with lewd design, the same constitute acts of lasciviousness. (People vs. Santiago, G.R. No. 12339, December 2, 1999) ● The mere act of lying on top of the alleged victim, even if naked, does not constitute rape; the felony of acts of lasciviousness is a crime included in rape. (People vs. Mejia, G.R. No. 185723, August 4, 2009) ● What constitutes lewd or lascivious acts shall be determined from the circumstances if each case. (U.S. vs. Gomez, G.R. No. L-10341, March 3, 1915) ● Acts of lasciviousness is punished under Sec. 5(b), R.A. 7610, when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse (Special Protection of Children Against Abuse, Exploitation, and Discrimination Act).

[See further discussion on RA 7610 Special Protection of Children Against Abuse, Exploitation and Discrimination Act] Abuses against chastity (Art. 246) vs. Offenses against chastity (Art. 336) Abuses against Offenses against chastity chastity (Art. 246) (Art. 336) As to the person of the offender

Public officer.

Private individual.

As to the consummation of the crime Mere immoral or indecent proposal made earnestly and persistently.

Actual act of lasciviousness should have been executed.

(Reyes, The Revised Penal Code: Book Two, 2006, p. 915)

Attempted rape vs. Acts of Lasciviousness Acts of Lasciviousness As to the presence of clear indication of the offender’s purpose to lie with the offended party Present. Not present. Attempted rape

As to the commission of acts of lasciviousness As PREPARATORY ACTS to the commission of rape.

Lascivious acts are themselves the FINAL OBJECTIVE sought by the offender.

ARTICLE 337 QUALIFIED SEDUCTION Two classes of qualified seduction: 1.

Seduction of a virgin over 12 years and under 18 years of age by certain persons, such as, a person in authority, priest, teacher, or any person who, in any capacity, was entrusted with the education or custody of the woman seduced; and Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation.

Elements of Qualified seduction of a virgin: (VOSA) 1. 2. 3.

Offended party is a Virgin; She must be Over 12 and under 18 years of age; The offender had Sexual intercourse with her; and There is Abuse of authority, confidence, or relationship on the part of the offender.

Elements of Qualified seduction of a sister or descendant: (SACS) 1.

Offended party is a Sister or descendant, whether or not she be a virgin or over eighteen years of age;

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2. 3. 4.

Relationship must be Consanguinity; The offender had Sexual intercourse with her; and There is Abuse of authority, confidence, or relationship on the part of the offender.

woman was sleeping, or the offender used force or intimidation, when he had sexual intercourse with her, the crime would be rape. (People vs. Manansala, G.R. Nos. 11097481, June 17, 1997) ARTICLE 338 SIMPLE SEDUCTION

Offenders in Qualified Seduction: 1.

Those who abused their authority: a) Persons in public authority b) Guardian c) Teacher d) Person who, in any capacity, is entrusted with the education or custody of the woman seduced; Those who abused confidence reposed in them, like: a) Priest b) House servant c) Domestic Those who abused their relationship: a) Brother who seduced his sister; b) Ascendant who seduced his descendant.

Elements: (DOGS) 1. 2. 3. 4.

NOTES: ●

● NOTES: ●

●

Seduction means enticing a woman to unlawful sexual intercourse by means of persuasion, solicitation, promises, bribes, or other means without the use of force. (Black’s Law Dictionary, 1910) “Virgin” refers to a woman of chaste character or a woman of good reputation. Virginity in this sense does not mean physical virginity (People vs. Lee, G.R. No. 139070, May 29, 2002). Virginity is presumed if the woman is unmarried and of good reputation. It is the accused who must prove otherwise and the proof must be convincing, not just insinuations or conjectures. (People vs. Ramos, G.R. No. L-49218, August 27, 1987) Domestic – is different from a house servant. It means any person living under the same roof as a member of the same household, and includes boarders or house–guests but not transients or visitors. (People vs. Subingsubing, G.R. Nos. 104942–43, November 25, 1993) If the sister or descendant is under 12 years of age, the crime would be rape. If any of the circumstances in the crime of rape is present, the crime is not to be punished under this article, thus if the offended

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Offended party is Over 12 and under 18 years of age; She must be of Good reputation, single or widow; The offender had Sexual intercourse with her; and It is committed by means of Deceit.

●

● ●

●

Virginity of the victim is not required in simple seduction. (Reyes, The Revised Penal Code: Book Two, 2017) To constitute simple seduction, there must in all cases be some deceitful promise or inducement. The woman should have yielded because of this promise or inducement. (People vs. Pasuca, G.R. No. 128159-62, July 14, 2004) Deceit generally takes the form of unfulfilled promise of marriage and this promise need not immediately precede the carnal act. (People vs. Iman, G.R. No. 42660, September 12, 1935) Promise of marriage by a married man, whom the victim knew to be married, is not deceit. (US vs. Sarmiento, G.R. No. 9059, March 14, 1914) Promise of marriage after sexual intercourse is not deceit. (Id.) There is no continuing offense of simple seduction. (People vs. Bautista, Adm. Case No. 226, February 25, 1946) The man may be willing and ready to marry the offended party but simple seduction is still committed when the man knows that she cannot legally consent to the marriage. (Reyes, The Revised Penal Code: Book Two, 2017, p.966)

Simple Seduction vs. Qualified Seduction (VADAO) Simple Seduction

Qualified Seduction

As to the offended party’s Virginity as an essential element NOT an essential element of the crime, but it is enough that the ESSENTIAL ELEMENT of woman is single or a the crime of qualified widow of good seduction of a virgin. reputation and has a chaste life. As to the presence of Deceit as an essential element of the crime Present Not present As to Victim’s Age ● Qualified seduction of a virgin: over 12 but under 18 ALWAYS over 12 but ● Qualified seduction under 18. of a sister or descendant: may be over 18. As to the presence of Abuse of authority, abuse of confidence or abuse of relationship in the commission of the crime May be committed even Can only be committed without the presence of with the presence of such. such. As to the person of the Offender Person in public authority; priest; house servant; domestic; guardian; teacher; or any person entrusted Any person. with the education or custody of the woman seduced; a brother seducing his sister; or ascendant seducing a descendant.

ARTICLE 339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY

NOTES: ●

●

The offender commits Acts of lasciviousness or lewdness; The acts are committed upon a woman who is: a) A Virgin or single of good reputation, under 18 but over 12 years of age; and b) A Sister or descendant regardless of her reputation or age.

Male cannot be the offended party in this crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.967) The law is silent if the victim is exactly 12 years old. The law provides that the victim is over 12 but under 18 years of age. The offended woman must have consented to the acts of lasciviousness but the consent is obtained by abuse of authority, confidence, or relationship or by means of deceit. (Id) The penalty for acts of lasciviousness with the consent of the offended party shall be one (1) degree higher than that imposed by law when the victim is under 12 years of age. (Sec. 10, R.A. No. 7610) ARTICLE 340 CORRUPTION OF MINORS

Elements: (PS) 1. 2.

The offender Promotes or facilitates the prostitution or corruption of persons under age; and The purpose is to Satisfy the lust of another.

NOTES: ●

Persons under age means a person below 21 years of age as majority commences upon the attainment of the age of 21 years. (Alimagno vs. People, G.R. No. L-36458, February 21, 1983)

●

What the law punishes is the act of a person who facilitates the corruption of, and not the performance of unchaste acts upon the minor, hence mere proposal will consummate the offense. (Reyes, The Revised Penal Code: Book Two, 2017, p.969)

●

The victim must be of good reputation and not a prostitute or corrupted person. (Ibid.)

Elements: (AVSA) 1.

The offender accomplishes the acts by Abuse of authority, confidence, relationship, or deceit.

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ARTICLE 341 WHITE SLAVE TRADE

ARTICLE 342 FORCIBLE ABDUCTION

Acts Punishable: (BSP)

Elements: (ALA)

1. 2. 3.

Engaging in the Business or prostitution; Profiting by prostitution; Enlisting the Services of women for the purpose of prostitution.

NOTES:

2. 3.

A person Abducts any woman, regardless of her age, civil status, or reputation. Abduction is Against her will; and Abduction is with Lewd designs.

NOTES:

●

The person responsible under this article is the person who maintains or engages in the business. It is not a defense that he is only the manager or the man in charge of the house with a fixed salary (People vs. Gomez, C.A. 40 O.G., Supp. 4).

●

Abduction – is meant the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or corrupt her. (People vs. De la Cruz, G.R. No. 24507, December 28, 1945)

●

One who engaged the services of a woman ostensibly as a maid but in reality for purposes of prostitution and who in fact dedicated her to such immoral purposes for profit, is guilty of white slave trade (People vs. Isidro, C.A., 51 O.G. 215).

●

Forcible abduction is absorbed in rape where the main objective was to rape the victim. (People vs. Mejorada, G.R. No. 102705, June 30, 1993)

●

To hire, employ, use, persuade, induce or coerce a child for purposes of creating or producing any form of pornography is prohibited (Sec. 4.a, Anti-Child Pornography Act of 2009). [See further discussion on Special Laws.]

●

Where the violent taking of a woman is motivated by lewd designs, the crime is forcible abduction. When it is not so, it is kidnapping and serious illegal detention. (People vs. Quintan, G.R. No. L-8227, May 25, 1956)

●

Actual sexual intercourse is not necessary; intent to seduce a girl is sufficient. Lewd designs may be shown by conduct of the accused. (U.S. vs. Ramirez, et. al., G.R. No. 13997, March 8, 1919)

●

If the victim is under 12 years of age, the crime is forcible abduction even if she voluntarily goes with her abductor. It is not necessary that she be taken against her will. (Reyes, The Revised Penal Code: Book Two, 2017, p.975)

●

If the victim’s consent was obtained thru deceit, and there was therefore no valid consent, the crime is forcible abduction, as the deceit may be considered as constructive force. (People vs. Caraang, G.R. No. 148424-27, December 11, 2003)

Corruption of Minors vs. White Slave Trade (PSP) Corruption of Minors (Art. 340)

White Slave Trade (Art. 341)

As to the Person of the offended party ALWAYS a minor.

Not necessarily a minor.

As to the Sex of the offended party Either sex.

Females only.

As to engagement of business or generating of Profit May not necessarily for profit.

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Generally, for profit.

Forcible abduction vs. Grave Coercion (MCL) Forcible abduction Grave coercion (Art. 342) (Art. 286) As to Means used by the offender There is violence or There is violence or intimidation. intimidation. As to Compelling the offended party to do something against her will Present. Present. As to the presence of Lewd design Present. Not present.

Forcible abduction with rape vs. kidnapping Forcible abduction with rape Motivated by lewd design.

Kidnapping (Art. 267) Not motivated by lewd design.

Reyes, The Revised Penal Code: Book Two, 2012, p.937) ARTICLE 343 CONSENTED ABDUCTION

Elements: (VLOC) 1. 2. 3. 4.

The offended party is a Virgin or a person with good reputation; Offended party must be Over 12 and under 18; The taking away of the offended party is with the Consent after solicitation or cajolery from the offender; and The taking away of the offended party must be with Lewd designs.

her escape. (People vs. Moreno, C.A., G.R. No. 7424, October 1941) ●

Even if the virgin is under 12 years of age, the crime committed is forcible abduction despite her consent to the elopement. (Reyes, The Revised Penal Code: Book Two, 2006, p.343)

●

The abduction of the victim need not be with some character of permanence. No matter how short is the taking away, the crime exists. (People vs. Ingayo, G.R. No. 3423, December 10, 1949)

ART 344 PROSECUTION OF THE CRIMES OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION, RAPE, AND ACTS OF LASCIVIOUSNESS

NOTES: ●

●

NOTES: ●

●

“Virginity” in Art. 343 is not to be understood in so material as to exclude the idea of abduction of a virtuous woman of good reputation. Even if the accused had sexual intercourse with the girl before they eloped, there is still a case of abduction with consent. (U.S. vs. Casten, G.R. No. 11488, August 19, 1916) The abductor need not actually and personally have taken victim from her parent’s home, or induced her to abandon it. It is sufficient that he was instrumental in

●

Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse. Seduction, abduction or acts of lasciviousness must be prosecuted upon complaint signed by: i Offended party; ii By her parents; iii Grandparents; or iv Guardians in the order in which they are named above. The marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness and rape, extinguishes the criminal action or remit the penalty already imposed upon him. This applies as well to the accomplices, accessories after the fact. (Reyes, The Revised Penal Code: Book Two, 2017, p.985) Said marriage must be entered into in good faith and with the intent of fulfilling the marital duties and obligations. (People vs. Santiago, G.R. No. 27972, October 31, 1927) Pursuant to R.A. 8353, rape is now a crime against persons. Hence, it may be prosecuted de officio. (Reyes, The Revised Penal Code: Book Two, 2017, p.985) The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The

223

●

offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. (Sec. 5, Rule 110, Revised Rules of Criminal Procedure) Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. The pardon may be expressed or implied. (Reyes, The Revised Penal Code: Book Two, 2017, p.989) Express pardon of the offender by the offended party or other persons named in the law, as the case may be, is a bar to prosecution for seduction, abduction, rape or acts of lasciviousness. (Ibid.) Pardon in adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective (People vs. Infante, G.R. No. 36270, August 31, 1932). Pardon in seduction must also come before the institution of criminal action. (People vs. Miranda, G.R. No. 38171, October 6, 1932) Pardon by the offended party who is a minor must have the concurrence of parents. (People vs. Lacson, Jr., C.A., 56 O.G. 9460)

ARTICLE 345 CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY Civil liability of persons guilty of rape, seduction or abduction: 1. 2. 3.

●

ARTICLE 346 LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS, OR OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, etc.: 1. 2. 3. 4. 5.

●

224

Accomplice is also punished as principal in the crime of slight illegal detention (Art. 263[2])’

●

To indemnify the offended woman; To acknowledge the offspring, unless the law should prevent him from so doing; In every case to support the offspring.

There is no civil liability for acts of lasciviousness. (Reyes, The Revised Penal Code: Book Two, 2017, p.995) Moral damages may be awarded to the offended party, and the parents for seduction, abduction, rape and other lascivious acts. (Art. 2219, NCC) Multiple Rapes by multiple offenders – all of them must support the offspring and none of them shall acknowledge or may claim

Ascendants; Guardians; Curators; Teachers; and Any other person, who cooperates as accomplice with abuse of authority or confidential relationship

NOTES:

NOTES: ●

paternity of the offspring. (People vs. Pedro de Leon, et. al., G.R. No. L-2094, April 1950) Amount and terms of the support shall be determined by the trial court as based on Art. 201 of the Family Code. Only indemnity shall be given in case of rape of a married woman. (People vs. Sanico, C.A., 46 O.G. 98)

“Crimes embraced in chapters second, third and fourth of this title” are: a. Rape b. Acts of lasciviousness c. Qualified seduction d. Simple seduction e. Acts of lasciviousness with the consent of the offended party f. Corruption of minors g. White slave trade h. Forcible abduction i. Consented abduction

NOTE:

●

Where the victim is a child, the State shall intervene on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the

said parent, guardian, teacher or person having care and custody of the same. (Sec. 2, Art. 1, Special Protection of Children Against Abuse, Exploitation, and Discrimination Act)

[See further discussion on Special Laws] K. CRIMES AGAINST CIVIL STATUS OF PERSONS (ARTICLES 347-352) ARTICLE 347 SIMULATION OF BIRTHS, SUBSTITUTIONS OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD Acts Punishable: (SSC) 1. 2. 3.

Simulation of births; Substitution of one child for another; and Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.

NOTES: ●

●

Object of the crime is the creation of false or the causing of the loss of civil status. (U.S. vs. Capillo, G.R. No. 9279, March 25, 1915) Simulation of birth takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own. (Reyes, The Revised Penal Code: Book Two, 2017, p.1002) Substituting one child for another should be with intent to cause the loss of any trace of the child’s filiation. It may be effected by placing a live child of a woman in place of a dead one of another woman. The act of concealing or abandoning any legitimate child has three (3) requisites: a) Child must be legitimate; b) Offender conceals or abandons such child; and c) Offender has the intent to cause such child to lose its civil status. (Reyes, The

Revised Penal Code Book Two, 2011, pp. 963)

Abandonment of a minor: crime against security vs. crime against civil status of person Crime against security (Art. 276)

Crime against the civil status of person

As to the person of the offender Person who has custody of the child.

Any person.

As to the purpose of the offender To avoid the obligation of rearing and caring for the child.

To cause the child to lose its civil status.

(Reyes, The Revised Penal Code: Book Two, 2006, p.964)

ARTICLE 348 USURPATION OF CIVIL STATUS Usurpation of civil status is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal right of such another person. NOTES: ● “Civil Status” includes one’s station or profession, or the rights, duties, capacities and incapacities which determine a person in a given class (Black’s Law Dictionary) ● Fraud is not an element of the crime; it merely affects the penalty if purpose of impersonation is to defraud the offended party or his heirs. (Reyes, The Revised Penal Code: Book Two, 2017, p.1005) ● In Art. 348, in order to constitute a crime, there must be intent to enjoy the rights arising from the civil status of another. (Ibid.) ARTICLE 349 BIGAMY Elements: (LDPCE) 1. The offender is Legally married; 2. The marriage has not been legally Dissolved or, in the case the spouse is absent, the absent spouse could not yet be Presumed dead in accordance to the Civil Code; 3. He Contracts a second or subsequent marriage; and

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4. The second or subsequent marriage contains all the Essential requisites for validity. NOTES:

●

● Illustrative cases of Bigamy: a. One who contracts a second marriage while a former legal marriage is still existing and undisclosed. (U.S. vs. McLeod, G.R. No. 1601, March 28, 1904) b. One who contracts a second marriage before the absent spouse has been declared presumptively dead by means of a judgment. (Lukban vs. Republic, G.R. No. L8492, February 29, 1956) c. One who contracts a second marriage before the judicial declaration of the first marriage. (Beltran vs. People, G.R. No. 137567, June 20, 2000) ● Persons intending to contract a second marriage must first secure a judicial declaration of nullity of their first marriage. If they proceed with the second marriage without the judicial declaration, they are guilty of bigamy regardless of evidence of the nullity of the first marriage. (Vitangcol vs. People, G.R. No. 207406, January 13, 2016) ● An action for annulment of the second marriage is not a defense in a prosecution for bigamy. (People vs. Aragon, G.R. No. L-5930, February 17, 1954) ● A petition for declaration of nullity of the second marriage is not a prejudicial civil question that will suspend the prosecution for bigamy (Landicho vs. Relova, G.R. No. L-22579, February 23, 1968) ● A person convicted of bigamy may still be prosecuted for concubinage or adultery; The second spouse who knew of the first marriage is an accomplice, as well as the person who vouched for the capacity of either of the contracting parties. The provision of bigamy does not apply to persons married under the Muslim Code. (Malang vs. Moson, G.R. No. 119064, August 22, 2000) ● An action for annulment of the second marriage on the ground that the same was entered into through force or intimidation is a prejudicial question that will operate to suspend the proceeding for bigamy. (Zapanta vs. Montesa, G.R. No. L-14534, February 28, 1962) ● The failure to exercise due diligence by the offender spouse to ascertain the whereabouts

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●

of the first wife and his remarriage constitutes bigamy through reckless imprudence. (People vs. Reyes, CA-G.R. No. 12107-R, June 30, 1955) Causes which may produce the legal dissolution of the first marriage: a. Death of one of the contracting parties; b. Judicial declaration annulling a void marriage; and c. Judicial decree annulling a voidable marriage. (Reyes, The Revised Penal Code: Book Two, 2017, p.1010) When there is no actual marriage ceremony by a solemnizing officer, there is no marriage to speak of (Morigo vs. People, G.R. No. 145226, February 6, 2004), hence, the accused must be acquitted. Bigamy is not a private crime, it is an offense against the State. Hence, it can be prosecuted even without the initiative of the offended spouse. (People vs. Concepcion, C.A., 40 O.G. 2878) A pardon by the offended spouse does not extinguish criminal action considering that a crime is committed against the State. (Art. 23,

RPC)

● The crime of Bigamy is a public offense which can be denounced not only by the person affected thereby but by a civic-spirited citizen who may come to know of the same. (People vs Belen, C.A., 45 O.G., Supp. 5, 88) ● One who falsely vouches for the capacity of a contracting party, known to him as previously married, is considered as an accomplice. (Reyes, The Revised Penal Code: Book Two, 2017, p.1016) ARTICLE 350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAW (ILLEGAL MARRIAGE) Elements: (CND) 1. That the offender Contracted marriage; and 2. That he knew at the time that: a. The requirements of the law were Not complied with, or b. The marriage was in Disregard of a legal impediment. NOTES: ● Under this article, offender must not be guilty of bigamy.

● Circumstance qualifying the offense – if either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud. ● Conviction of violation of this article involves moral turpitude. (Villasanta vs. Peralta, G.R. AC-UNAV, April 30, 1957) Bigamy vs. Illegal Marriage (PVA) BIGAMY

ILLEGAL MARRIAGE

As to the presence of a Previous marriage Present. Not necessarily. As to the Validity of the subsequent marriage Valid except that it is Annullable or void. bigamous. As to the coverage of punishable Act Refers only to Covers all marriages contracting of a 2nd which are otherwise marriage before the voidable or null and former marriage has been void other than legally dissolved or before bigamous marriage. the absent spouse has been declared presumptively dead.

ARTICLE 351 PREMATURE MARRIAGES Repealed by RA No. 10655, approved on March 13, 2015, without prejudice to the provisions of the Family Code on paternity and filiation, the Art. 351 punishing the crime of premature marriage committed by a woman, is hereby repealed (Sec. 1, R.A. No. 10655). ARTICLE 352 PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY Persons liable for performance of illegal marriage ceremony: a. Priest or ministers of any religious denomination or sect who performs or authorizes an illegal marriage ceremony; and b. Civil authorities who shall perform or authorizes any illegal marriage ceremony; NOTES: ● Art. 352 presupposes that the priest or minister or civil author is authorized to solemnize marriages. If the accused is not authorized to solemnize marriage and he

performs an illegal marriage ceremony, he is liable under Art. 177 (Usurpation of authority or public function). (Reyes, The Revised Penal Code: Book Two, 2017, p.1021) ● A clergyman who performed a marriage ceremony, not knowing that one of the contracting parties is a minor, is not liable. (U.S. vs. San Juan, G.R. No. L-8502, October 10, 1913) L. CRIMES AGAINST HONOR (ARTICLES 353-364) ARTICLE 353 DEFINITION OF LIBEL Elements of Defamation: (IPMDT) 1. There must be an Imputation of a crime, a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance; 2. The imputation must be made Publicly; 3. The publication must be Malicious; 4. The imputation must be Directed at a natural or juridical person, or one who is dead; and 5. The imputation must Tend to cause the: (DDCT) a. Dishonor, (disgrace, scheme, ignominy); b. Discredit, (loss of credit or reputation, disesteem); c. Contempt of a natural or juridical person (state of being despised); or d. To blacken the memory of one who is dead. NOTES: ● Defamation, which includes libel and slander, means the offense of injuring a person’s character, fame or reputation through false and malicious statements. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. (MVRS Pub. Inc. vs. Islamic Da’wah Council of the Phils., Inc., G.R. No. 135306, January 28, 2003) ● Test of Defamatory Imputation: It is the words used construed in its entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by the person reading them, unless it appears that they were used and in another sense. (Novicio vs. Aggabao, G.R. No. 141332, December 11, 2003)

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● Imputation may cover: a) Crime allegedly committed by the offended party; b) Vice or defect, real or imaginary, of the offended party; c) Any act, omission, condition, status of, or circumstances relating to the offended party. (Reyes, The Revised Penal Code: Book Two, 2006, p.982) ● Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. It is the communication of the defamatory matter to some third person/s. (Ledesma vs. CA, G.R. No. 113216, September 5, 1997) ● Two types of Malice: a) Malice in fact – shown by proof of ill-will, hatred, or purpose to injure, also known as express malice; b) Malice in law – presumed to be malicious from the defamatory imputation even if it is true; proof is not required because it is presumed to exist from the defamatory imputation. ● When the communication is PRIVILEGED, malice is not presumed from the defamatory words. Malice in fact must be proved. (U.S. vs. Bustos, G.R. No. L-12592, March 8, 1918) ● When several persons are defamed: 1. If the defamation is made on different occasion or by independent acts, there are as many crimes of libel as there are persons directly addressed with such statements or directly referred to; 2. Where the same was directed at a class or group of numerous persons in general terms only without any particular person being directly addressed, there is no victim identified or identifiable, hence no actionable libel. 3. If the statement is so sweeping or allembracing as to apply to every individual in that group or class so that the defamatory statement specifically pointed to him, he can bring his action separately.

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4. If several identifiable victims are libeled in

a single article, there are as many crimes of libel as there are persons defamed. (Newsweek, Inc. vs. IAC, G.R. No. L-63559, May 30, 1986) ● In order to maintain a libel suit, it is essential that the victim be identifiable, although not necessary that he be named. ARTICLE 354 REQUIREMENTS OF PUBLICITY General Rule: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Malice is not presumed in the following: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty (Art. 354, No. 1); 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Art. 354, No. 2) Two kinds of privileged communications 1. Absolute; and 2. Conditional or qualified. Requisites of Privileged communication (paragraph 1): (DAG) 1. 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; 2. The communication is Addressed to an officer or a board, or superior, having some interest or duty in the matter; and 3. That the statements in the communication are made in Good faith and without malice (in fact).

Requisites of Privileged Communication (paragraph 2): (FTWG) 1. That it is 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; 2. That it is made in Good faith; and 3. That it is Without any comments or remarks. NOTES: ● A communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith. On the other hand, conditionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith. (Orfanel vs. People, G.R. No. L-26877, December 26, 1969) ● To overcome the defense of privileged communication under Art. 354(1), one must show: (1) That the defendant acted with malice in fact, or (2) there is no reasonable ground for believing the charge to be true. (Reyes, The Revised Penal Code: Book Two, 2017, p.1044) ● Doctrine of Fair Comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. (Borjal vs. CA, G.R. No. 126466, January 14, 1999) ● The person libeled is justified to hit back with another libel. But retaliation or vindictiveness cannot be a basis of self-defense in defamation. It must be a fair answer and related to the imputation made. (People vs. Pelayo, Jr., C.A., 64 O.G. 1994) ● The expression “putang ina mo” is a common utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. It is an expletive that punctuates one’s expression of profanity. (Reyes, vs. People, G.R. Nos. L-21528 and L21529; March 28, 1969)

● Tapping of any wire or cable, or by using any other device, not being authorized by all the parties to any private communication or spoken word, or to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder is prohibited. (Sec. 1, Anti-Wire Tapping Act)

[See further discussions in Anti-Wire Tapping Act] ARTICLE 355 LIBEL BY WRITINGS OR SIMILAR MEANS Libel may be committed by means of: 1. writing; 2. printing; 3. lithography; 4. engraving; 5. radio; 6. phonograph; 7. painting; 8. theatrical exhibition; 9. cinematographic exhibition; or 10. any similar means. ARTICLE 356 THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION Acts Punishable: 1. By threatening to publish a libel against another concerning the latter or his parents, spouse, child, or other members of his family. 2. By offering to prevent the publication of such libel for compensation or money consideration. NOTES: 1. Blackmail is defined as unlawful extortion of money by an appeal to the fears of the victim, especially extortion of money by threats of his family. (US vs. Eguia, et al., G.R. No. L-13540, October 24, 1917) 2. It is essential that the threat to publish, or to offer to prevent the publication of libel must be for a compensation or money consideration, in order that it may be

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penalized under this article (Reyes, The Revised Penal Code Criminal Law Book Two, 2017, p. 1060). ARTICLE 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS Elements: (OPO) 1. The Offender is a reporter, editor, or manager of a newspaper daily or magazine; 2. He Publishes facts connected with the private life of another; and 3. Such facts are Offensive to the honor, virtue and reputation of said person. NOTES: 1. This article is referred to as the “Gag Law” because while a report of an official proceedings is allowed, it gags those who would publish therein facts which this article prohibits, and punishes any violation thereof. (Reyes, The Revised Penal Code: Book Two, 2017, p.1062) 2. The “Gag Law” bars from publication of cases relating to adultery, divorce, legitimacy of children, etc. (Ibid.) ARTICLE 358 SLANDER Two kinds of oral defamation: 1. Simple Slander; and 2. Grave slander, when it is of a serious and insulting nature. Elements: (IPMDT-DDCT) 1. There must be an Imputation of a crime, a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance; 2. The imputation must be made Publicly; 3. The publication must be Malicious; 4. The imputation must be Directed at a natural or juridical person, or one who is dead; and 5. The imputation must Tend to cause the: a) Dishonor, (disgrace, scheme, ignominy); b) Discredit, (loss of credit or reputation, disesteem); c) Contempt of a natural or juridical person (state of being despised); or

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d) To blacken the memory of one who is dead. Factors that determine the gravity of the oral defamation: 1. Expressions used; 2. Personal relations of the accused and the offended party; 3. Circumstances surrounding the case; and 4. Social standing and position of the offended party. (Torreda vs. Toshiba Information Equipment, Inc., G.R. No. 160351, April 10, 2006) NOTES: 1. Slander (oral defamation) – libel committed by oral (spoken) means, instead of writing. (Villanueva vs. People, G.R. No. 160351, April 10, 2006) 2. The slander need not be heard by the offended party because a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself. (People vs. Clarin, CA, 37 O.G. 1106) 3. If the defamatory words were uttered in the heat of anger, with some provocation on the part of the offended party, the crime is only slight oral defamation. (Villanueva vs. People, G.R. No. 160351, June 25, 2012) 4. The expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of profanity. (Rogelio Pader vs. People, G.R. No. 139157, Feb. 8, 2000) ARTICLE 359 SLANDER BY DEED Elements: (APC) 1. The offender performs any Act not included in any other crime against honor; 2. Such act is performed in the Presence of other persons; and 3. Such act Casts dishonor, discredit, or contempt upon the offended party. Two kinds of Slander by Deed: 1. Simple slander by deed; and

2. Grave slander by deed, that is, which is of serious nature. NOTES: 1. Slander by Deed – any act which cast dishonor, discredit, or contempt against another. 2. Slapping the face of another is slander by deed if the intention of the accused is to cause humiliation and shame. Pointing a dirty finger constitutes slander by deed. (Villanueva vs. People, G.R. No. 160351, April 10, 2006) 3. Seriousness of slander by deed depends on the social standing of the offended party, the circumstances present or surrounding the commission of the act and the occasion. 4. There is no fixed standard in determining whether a slander is serious or not; hence, the courts have sufficient discretion to determine the same, basing the finding on the attendant circumstances and matters relevant thereto. (People vs. Motita, C.A., 59 O.G. 3020) ARTICLE 360 PERSONS RESPONSIBLE (FOR LIBEL) Persons liable for libel: (POEA) 1. Any person who shall Publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means; 2. The Author or editor of a book or pamphlet; 3. The Editor or business manager of a daily newspaper, magazine, or serial publication; or 4. The Owner of the printing plant which publishes a libelous article with his consent and all other persons who, in any way, participate in or have connection with its publication. NOTES: 1. An independent civil action may be filed simultaneously or separately in the same RTC where the criminal action was filed. 2. Each publication is a separate and distinct libel giving rise to two distinct causes of action. (Montinola vs. Montalvo, G.R. Nos. 10114 & 10137, August 3, 1916) 3. Libel against a deceased person is actionable. (Marcos vs. Manglapus, G.R. No. 8821, October 27, 1989)

4. Complaint for defamation imputing a private crime, i.e. adultery, concubinage, seduction, abduction and acts of lasciviousness; must be filed by the offended party. (Sec. 5, Subsec. 1, Revised Rules on Criminal Procedure) 5. Person who publishes libelous letter written by the offended party is liable. Publishing and not composing is the prime requisite of the crime. (Reyes, The Revised Penal Code: Book Two, 2017, p.1071) 6. Liability of editor is the same as of the author. (People vs. Bailo, et al., C.A., 37 O.G. 2373) 7. Action for exemplary damages may be awarded if action is based on quasi-delict. 8. No remedy for damages for slander or libel in case of absolutely privileged communication. ARTICLE 361 PROOF OF THE TRUTH Proof of truth is admissible in any of the following: 1. When the act or omission constitutes a crime regardless of whether the offended party is a private individual or a public officer; or 2. When the offended party is a Government employee, even if the act or omission imputed does not constitute a crime, provided it is related to the discharge of his official duties. If the defendant proves the truth of the imputation made by him, he shall be acquitted when: 1. What is imputed is a crime; or 2. The imputation, not constituting a crime is made against Government employees with respect to the facts related to the discharge of their official duties, whether or not the imputation is a crime. Requisites of Defense in Defamation: 1. It appears that the matters charged as libelous are true; 2. It was published with good motives; and 3. For justifiable end. NOTE: The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion but upon positive, direct evidence upon which a definite finding may be

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made by the court. (US vs. Sotto, G.R. No. 13990, September 24, 1918) ARTICLE 362 LIBELOUS REMARKS NOTES: 1. Art. 362 does not punish the publication of privileged information but the libelous comments or remarks about such privilege matters. (U.S. vs. Dorr, G.R. No. 1049, May 16, 1903) 2. Libelous remarks or comments on privileged matters under Art. 354, if made with malice in fact, will not exempt the author and editor. 3. This article is a limitation to the defense or privileged communication. Even if the matter is privileged and malice in fact is proved, both author and editor shall be liable. 4. Author/editor of the publication who distorts, mutilates or discolors official proceedings reported by him, or add comments thereon to cast aspersion on character of parties concerned is guilty of libel. ARTICLE 363 INCRIMINATING INNOCENT PERSON Elements: (AID) 1. 2. 3.

The offender performs an Act; By such act he directly Incriminates or imputes to an innocent person the commission of a crime; and Such act Does not constitute perjury.

NOTES: 1. Incriminating an innocent person through unlawful arrest is possible (complex crime). (People vs. Alagao, G.R. No. L-20721, April 30, 1966) 2. Art. 363 does not apply to malicious prosecution of a charge against an innocent person, but to acts of planting evidence and the like, which do not in themselves constitute false prosecution but tend to directly cause false prosecution. (Ventura vs. Bernabe, G.R. No. L-26760, April 30, 1971)

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Incriminating Innocent Persons vs. Perjury by Making False Accusation Incriminating Perjury by Making Innocent Persons False Accusation As to Commission By performing an act In writing by testifying which the offender falsely or making a false directly incriminates or affidavit against another imputes to an innocent person. The gravamen of person the commission the offense is the of a crime. imputation itself, falsely made. As to Means employed Planting evidence and Giving of false statement the like in order to under oath or the making incriminate an innocent of false affidavit, person. imputing to a person the commission of a crime.

(Reyes, The Revised Penal Code: Book Two, 2006, p.1038)

ARTICLE 364 INTRIGUING AGAINST HONOR This felony is committed by any person who shall make any intrigue which has its principal purpose to blemish the honor or reputation of another person. NOTES: 1. “Intriguing against honor” refers to any scheme or plot designed to blemish the reputation of another by means of trickery. (People vs. Fontanilla, C.A., 56 O.G. 1931) 2. Must be committed by means of some tricky and secret plot, and not gossiping which on the other hand false under defamation. 3. Where the source or author of derogatory information cannot be determined and defendant passes it to others, defendant’s act is one of intriguing against honor; if it came from a definite source, the crime therefore is slander. (People vs. Pelayo, Jr., supra)

Intriguing Against Honor vs. Defamation (PMST) Intriguing against honor

Defamation

Acts Punishable: (RSDS)

As to Platform used Through ingenious, crafty, or secret plot and without publication.

Through

publication

(People vs. Fontanilla, C.A., 56 O.G. 1931)

As to Manner of Commission Consists of some tricky and secret plot

Committed in a public and malicious manner

As to Source of derogatory statements Cannot be determined

Known

As to Truthfulness of the remarks made Passes such utterances without subscribing to the truth of the remarks.

criminal negligence such as Malversation thru negligence (Art. 224) and Failure to render accounts. (Art. 218)

The remarks made are claimed to be true.

M. QUASI-OFFENSES (ARTICLE 365)

ARTICLE 365 IMPRUDENCE AND NEGLIGENCE Nature: The high court said that criminal negligence or imprudence is a crime itself and the accused should be charged with “Reckless Imprudence Resulting in Homicide.” (Quizon vs. Justice of the Peace, G.R. No. L-6641, July 28, 1955) Then in another case, the Supreme Court held that it is only a variant or a way in the commission of a crime. (Samson vs. CA, G.R. Nos. L-10364 and L10376, March 31, 1958) Thereafter, in subsequent decisions, the court adverted either to the two cases. Then in Madeja vs. Caro, No. L-51183, December 21, 1983, it held that criminal negligence is only a modality in the commission of a crime. It is submitted that criminal negligence is both a felony and a modality of its commission. It is a felony because Art. 365 of the Revised Penal Code treats criminal negligence as a felony. It punishes reckless imprudence and simple imprudence. Thus, it punishes Reckless Imprudence Resulting in Homicide, etc. (Estrada, Criminal Law Book Two, 2011) It is also a modality in the commission of a felony because there are felonies which result from

1. By committing, through Reckless imprudence, any act which, had it been intentional, would constitute a grave felony, or less grave felony or light felony; 2. By committing through Simple imprudence or negligence, an act which would otherwise constitute a grave or less serious felony; 3. By causing Damage to the property of another through reckless imprudence or negligence; and 4. By causing through simple imprudence or negligence Some wrong which, if done maliciously, would have constituted a light felony. Elements of Reckless (DVWiDIn-ODE)

Imprudence:

1. The offender Does or fails to do an act; 2. The doing of or the failure to do an act is Voluntary; 3. Without malice; 4. Material Damage results; and 5. There is Inexcusable lack of precaution on the part of the offender, taking into consideration: a) His Employment or occupation; b) Degree of intelligence, Physical condition; and c) Other circumstances regarding persons, time and place. Elements of Simple Negligence: (LN) 1. There is a Lack of precaution on the part of the offender; and 2. The damage impending to be caused is Not immediate nor the danger clearly manifest. NOTES: ● Criminal Negligence – consists in the execution of an imprudent or negligent act that, if intentionally done would be punishable into a felony. (Bonite vs. Zosa, G.R. No. L-33772, June 20, 1968) ● Negligence – failure to observe for the protection of the interests of another person

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that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. (Jarcia vs. People, G.R. No. 187926, February 15, 2012) ● Reckless Imprudence – consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration: (1) his employment or occupation; (2) his degree of intelligence; (3) his physical condition; and (4) other circumstances regarding persons, time and place. (Abueva vs. People, G.R. No. 134387, September 27, 2002) ● Simple Imprudence - consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest (Reyes, The Revised Penal Code Criminal Law Book Two, 2017, p. 1093). ● In order for conviction to be decreed for reckless imprudence, the material damage suffered by the victim, the failure in precaution on the part of the accused, and the direct link between material damage and failure in precaution must be established beyond reasonable doubt. (Tabao vs. People, G.R. No. 187246, July 20, 2011) ● Test of Negligence- Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence. (Picart vs. Smith, G.R. No. 12219, March 15, 1918) ● Basis for determining the inexcusable lack of precaution on the part of the offender: a) employment or occupation; b) degree of intelligence and physical condition of the offender; c) other circumstances regarding persons, time, and place.

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● The penalties provided in Art. 365 are not applicable in the following cases: a) When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article; and b) When, by imprudence or negligence and with violation of the Automobile Law, the death of a person shall be caused. ● Effect of concurrent proximate cause of two negligent acts – Where two concurrent or successive negligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury even though his act alone might not have caused the entire injury. (People vs. Desalisa, No. 26413-R, October 17, 1960) ● Doctrine of Last Clear Chance – where both parties are negligent but the negligent act of one is appreciable later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. (People vs. Lopez, G.R. No. 1141-R, August 21, 1947) ● Emergency Rule – Lack of opportunity to consider the wisest choice because of the negligence of another is not guilty of negligence if he makes such choice which a person of ordinary prudence placed in such position might make (People vs. Santos, G.R. No. 188-1089-R, September 26, 1974). The “Emergency” doctrine is applicable only where the situation which arises to confront the actor is sudden and unexpected, and is such as to deprive him of all opportunity for deliberation. (People vs. Eleazar, et. al., 60 O.G. 1728) ● Ivler Doctrine – The Supreme Court held that reckless imprudence or negligence is a crime in itself. Hence, once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the

essence of the quasi offense of criminal negligence under Art. 365 of the PRC lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty. It does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split into different crimes and prosecutions. (Ivler vs. San Pedro and Ponce, G.R. No. 172716, November 17, 2010) ● Criminal negligence resulting in homicide or

physical injuries is not an independent civil action under Art. 33 of the Civil Code. (Corpus vs. Paje, G.R. No. L-26737, July 31, 1961) Imprudence vs. Negligence (DFM) IMPRUDENCE

NEGLIGENCE

As to its Deficiency Deficiency of action.

Deficiency of perception.

As to the offender’s Failure Failure in precaution.

Failure in advertence.

As to the Means in avoiding wrongful acts One must take the necessary precaution once they are foreseen.

Paying proper attention and using due diligence in foreseeing them.

III. SPECIAL PENAL LAWS A. ANTI-CHILD PORNOGRAPHY ACT OF 2009 [REPUBLIC ACT NO. 9775] AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES I. Definition of Terms Child A child under R.A. No. 9775 refers to: 1. Any person below 18 years of age; or

2. Any person over 18 years of age, but is unable to fully take care of himself/ herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. (Sec. 3[a], par. 1) It shall also refer to: 1. Any person regardless of age who is presented, depicted or portrayed as a child; or 2. Computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child. (Sec. 3[a], par. 2) Child pornography It refers any representation, by whatever means, of a child engaged or involved in real or simulated explicit sexual activities or any representation of the sexual parts of a child or primarily sexual purposes. (Sec. 3[b]) Explicit sexual activity It includes actual or simulate: 1. Sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; 2. Bestiality; 3. Masturbation; 4. Sadistic or masochistic abuse; 5. Lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or 6. Use of any object or instrument for lascivious acts (Sec. 3[c]) Child pornography materials It refers to the means and methods by which child pornography is carried out:

1. As to form: a. Visual depiction – This includes not only images

of real children but also digital images, computer images or computer-generated image that is distinguishable from that of real children

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engaging in an explicit sexual activity. Visual depiction shall include: i. Undeveloped film and videotapes; ii. Data and/or images stored on a computer disk or by electronic means capable of conversion into a visual image; iii. Photograph, film, video, picture, digital image or picture, computer image or picture, whether made or produced by electronic, mechanical or other means; iv. Drawings, cartoons, sculptures or paintings depicting children; or v. Other analogous visual depiction;

b. Audio representation of a person who is or is represented as being a child and who is engaged in or is represented as being engaged in explicit sexual activity, or an audio representation that advocates, encourages or counsels any sexual activity with children which is an offense under this Act; and

c. Written text or material that advocates or counsels explicit sexual activity with a child and whose dominant characteristic is the description, for a sexual purpose, of an explicit sexual activity with a child. (Sec. 3[c], par. 1)

2. As to content:

It includes representation of a person who is, appears to be, or is represented as being a child, the dominant characteristic of which is the depiction, for a sexual purpose, of: i. the sexual organ or the anal region, or a representation thereof; and ii. the breasts, or a representation of the breasts, of a female person. (Sec. 3[c\, par. 2) Grooming It is the act of preparing a child or someone whom the offender believes to be a child for sexual activity or sexual relationship by communicating any form of child pornography. This includes online enticement or enticement through any other means. (Sec. 3[h]) Luring It is act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose

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of facilitating the commission of sexual activity or production of any form of child pornography. (Sec. 3[i]) Pandering It is the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material. (Sec. 3[j]) II. Punishable acts It shall be unlawful for any person: a. To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; b. To produce, direct, manufacture or create any form of child pornography; c.

To publish, offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography;

d. To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast; Note: The possession of three or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish, or broadcast. e. To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts; f.

For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography;

g. For a parent or guardian or any person having custody or control of a child to knowingly permit a child to engage, participate or assist in any form of child pornography;

h. To engage in luring or grooming of a child; i. To engage in pandering of any form of child pornography; j.

To willfully access pornography;

any

form

child

To conspire to commit any of the prohibited acts stated in Section 4. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and

To possess of any form of child pornography. (Sec. 4)

m. Syndicated Child Pornography (Sec. 5); The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. n. To willfully and knowingly fail to comply with the notice and installation requirements of an internet service provider (Sec. 9); Internet Service Provider (ISP) is a person or entity that supplies or proposes to supply an internet carriage service to the public. a. To willfully and knowingly fail to comply with the notice requirements by any mall owneroperator and owner or lessor of other business establishments (Sec. 10); b. To knowingly, willfully and intentionally violate duties of an internet content host (Sec. 11); Internet Content host is a person who hosts or who proposes to host internet content in the Philippines. a. To violate right to privacy of the child at any stage of the investigation, prosecution and trial of an offense under R.A. No. 9775. (Sec. 13) III. WHO MAY FILE A COMPLAINT 1. Offended party; 2. Parents or guardians;

3. Ascendant or collateral relative within the third degree of consanguinity; 4. Officer, social worker or representative of a licensed child-caring institution; 5. Officer or social worker of the Department of Social Welfare and Development (DSWD); 6. Local social welfare development officer; 7. Barangay chairman; 8. Any law enforcement officer; 9. At least three (3) concerned responsible citizens residing in the place where the violation occurred; or 10. Any person who has personal knowledge of the circumstances of the commission of any offense under this Act. (Sec. 6) IV. JURISDICTION Jurisdiction over cases for the violation of this Act shall be vested in the Family Court which has territorial jurisdiction over the place where the offense or any of its essential elements was committed pursuant to Republic Act No. 8369, otherwise known as “Family Courts Act of 1997”. (Sec. 7) B. ANTI-FENCING LAW OF 1979 [PRESIDENTIAL DECREE NO. 1612] ANTI-FENCING LAW OF 1979 Purpose P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." (Dizon-Pamintuan vs. People, G.R. No. 111426, 1994)

Definition of Terms Fencing The act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. (Sec. 2) Note: The crime of fencing applies only to proceeds of theft or robbery. It does not apply to other crimes of gain

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Fence This includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. (Sec. 2) If the fence if a partnership, firm, corporation or association, the president or the manager or any of the officers thereof who knows or should have known the commission of the offense shall be liable. (Sec. 4) Note: The fence is an accessory, not a principal or accomplice in robbery or theft. But the fence is a principal in the prosecution for the violation of PD No. 1979. Elements of the crime of fencing 1. The crime of robbery or theft has been committed; 2. The accused, who is not the principal or accomplice in the crime of robbery or theft, buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and, 4. There is, on the part of the accused, intent to gain for himself or another. (Dizon-Pamintuan vs. People, supra.) Required proof in the prosecution of PD 1612 Violation of P.D. No. 1612 is regarded as malum prohibitum, requiring no proof of criminal intent. Presumption of Fencing

General Rule: Mere possession of any good, article, object or anything of value which has been subject of robbery or thievery shall be prima facie evidence for fencing. (Sec. 5)

Exception: Possession of clearance/permit to sell/use second hand articles (Sec. 6)

All stores, establishments or entities dealing in the buy and sell of any good, article, item, object

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or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police of the town/city where it is located. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence. Distinguishing Fence and Accessory to Theft or Robbery The accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing. The crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (Dizon-Pamintuan vs. People, supra.) True or False: In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery. Suggested Answer: False, fencing is committed if the accused knows or “should have known” that the article, item, object or anything of value has been derived from the proceeds of the crime of theft or robbery (P.D. No. 1612[a]).

C. ANTI-GRAFT AND CORRUPT PRACTICES ACT

DEFINITION OF TERMS

2. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (Sec. 3[b])

Government

Note:

It includes the national government, the local governments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches.

Lack of demand is immaterial since the provision uses the word “or” between requesting and receiving. X x x Mere physical receipt unaccompanied by any other sign, circumstance, or act to show acceptance is not sufficient to lead the court to conclude that the crime has been committed. (Peligrino vs. People, G.R. 136266, August 13, 2001)

[REPUBLIC ACT NO. 3019] ANTI-GRAFT AND CORRUPT PRACTICES ACT

Receiving any gift It includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. Person includes natural and juridical persons unless the context indicates otherwise. (Sec. 2) COVERAGE

3. Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (Sec. 3[c]) Note: This is a special form of bribery.

All public officers which include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service, receiving compensation, even nominal from government.

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 thereof or within one year after its termination. (Sec. 3[d])

PUNISHABLE ACTS

5. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (Sec. 3[e])

The following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: 1. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations 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. (Sec. 3[a])

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Notes: 



A violation of this provision may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa as when the accused acted with gross inexcusable negligence (Jaca vs. People, G.R. No. 166967, January 28, 2013) Manifest partiality - clear, notorious, or plain inclination or predilection to favor one side or one person rather than another; synonymous with bias Undue injury - The term has a meaning akin to that of civil law concept of “actual damage” (Guadines vs. Sandiganbayan and People, G.R. No. 164891, June 6, 2011) Evident bad faith - it does not simply connote bad judgment or negligence; imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud (Sistoza vs. Desierto, GR No. 144784, September 3, 2002) Gross inexcusable negligence - negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected (Sistoza vs. Desierto, supra.) The use of the three phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" in the same information does not mean that the indictment charges three distinct offenses but only implies that the offense charged may have been committed through any of the modes provided by the law (Fonacier vs. Sandiganbayan, G.R. No. L-50691, December 5, 1994)

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 favoring his own interest or giving undue advantage in favor of or

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discriminating against any other interested party. (Sec. 3[f]) Note: Neglect or delay of public function must be accompanied by a demand impliedly or expressly of any benefit or consideration for himself or another. In absence of such demand, the officer shall be merely administratively liable. 7.

Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (Sec. 3[g])

 Determining whether the contract was manifestly and grossly disadvantageous is not merely based on consideration of the pecuniary amount involved. (Marcos vs. Sandiganbayan, G.R. No. 126995, October 6, 1998) LIABILITY OF OFFENDERS

PRIVATE

PERSONS

 Private persons acting in conspiracy with public officers may be indicted and if found guilty, be held liable under Section 3 of R.A. No. 3019. (Granada vs. People, G.R. No. 184092, February 22, 2017)  The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone. (People vs. Go, GR 168539, March 25, 2014) 8. Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (Sec. 3[h])

9. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (Sec. 3[i]) 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 or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (Sec. 3[j]) 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 information in advance of its authorized release date. (Sec. 3[k]) PROHIBITED INDIVIDUALS

ACTS

FOR

PRIVATE

1. It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. Close personal relation shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (Sec. 4)

2. It shall be unlawful for any person to knowingly induce or cause any public official to commit any of the offenses defined in Section 3. Note: In case private individuals are charges as co-principals, accomplices, or accessories with the public officers or employees, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. (Sec. 4 of R.A. No. 2019, as amended by R.A. No. 8249) PROHIBITED

ACTS

FOR

RELATIVES

General rule: It shall be unlawful for the spouse

or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government.

Exceptions: a. Any person who prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business; b. Any transaction, contract or application already existing or pending at the time of such assumption of public office; c.

Any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; and

d. Any act lawfully performed in an official capacity or in the exercise of a profession

(Sec. 5)

PROHIBITION ON MEMBERS OF CONGRESS It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal

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pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term. This also applies to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution and acquires or receives any such interest during his incumbency.

DISMISSAL WEALTH

It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest. (Sec. 6)

PRESCRIPTION

DUTY OF PUBLIC OFFICES TO FILE STATEMENT OF ASSETS AND LIABILITIES

COMPETENT COURT

Who shall file:

Every public officer

What to file:

A true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year

When to file:

a) after assuming office, and within the month of January of every other year thereafter; b) upon the expiration of his term of office, or upon his resignation or separation from office; c) public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January.

Where to be submitted:

a. In the office of the corresponding Department Head, or b. in the case of a Head of Department or chief of an independent office, with the Office of the President, or c. In the case of members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House (Sec. 7)

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DUE

UNEXPLAINED

A public officer who has been found to have acquired during his incumbency, whether in his name or the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and his other lawful income shall be ground for dismissal or removal (Sec. 8)

The prescription is twenty (20) years per Sec. 11

of R.A. No. 10910 which took effect on July 21, 2016.

It is the Sandiganbayan that has jurisdiction to try cases for violation of RA 3019 if the public officer is occupying a position corresponding to salary grade 27 or higher. Those that are classified as salary grade 26 or below may still fall within the jurisdiction of the Sandiganbayan, provided that they hold the positions enumerated by the law. Otherwise, jurisdiction shall be vested in the Regional Trial Court. (Sec. 4, P.D. No. 1606) TERMINATION OF OFFICE No public officer shall be allowed to resign or retire: a. Pending investigation, criminal or administrative. b. Pending a prosecution against him; or c. charged with any offense under the act of under provision of the Revised Penal Code on Bribery. (Sec. 12) PRE-SUSPENSION HEARING The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. (Luciano vs. Wilson, G.R. No. L-31347, August 31, 1970)

However, an actual hearing is not necessary. All that is required is that the accused be given an opportunity to be heard. (Miguel vs. Sandiganbayan, G.R. 172035, July 4, 2012) PREVENTIVE SUSPENSION It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A precondition therefor is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for speedy determination of the issues involved in the case. (Luciano vs. Wilson, G.R. No. L-32950, July 30, 1971) Once a proper determination of the validity of the Information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. (Socrates vs. Sandiganbayan, G.R. Nos. 116259-60, February 20, 1996) SUSPENSION AND LOSS OF BENEFITS

a. Any incumbent public officer against whom

any criminal prosecution under a valid information under this Act or under Title Seven Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whatever stage of execution and mode of participation, is pending in court shall be suspended from office.

b. Should he be convinced by final judgement,

he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

Note: In the event that such convicted officer, who may have been separated from the service has already received such benefits, he shall be liable to restitute the same to the government.

D. ANTI-HAZING ACT OF 2018 [REPUBLIC ACT NO. 11053] AN ACT PROHIBITING HAZING AND REGULATING OTHER FORMS OF INITIATION RITES OF FRATERNITIES, SORORITIES, AND OTHER ORGANIZATIONS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8049, ENTITLED “AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, AND OTHER ORGANIZATIONS AND PROVIDING PENALTIES THEREFOR” Definition of Terms Hazing – refers to any act that results in physical or psychological suffering, harm, or injury inflicted on a recruit, neophyte, applicant, or member as part of an initiation rite or practice made as a prerequisite for admission or a requirement for continuing membership in a fraternity, sorority, or organization including, but not limited to, paddling, whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affected the physical and psychological health of such recruit, neophyte, applicant, or member. This shall also include any activity, intentionally made or otherwise, by one person alone or acting with others, that tends to humiliate or embarrass, degrade, abuse, or endanger, by requiring a recruit, neophyte, applicant or member to do menial, silly, or foolish tasks. Initiation or Initiation Rites – refer to ceremonies, practices, rituals, or other acts, whether formal or informal, that a person must perform or take part in order to be accepted into a fraternity, sorority, or organization as a fullfledged member. It includes ceremonies, practices, rituals, and other acts in all stages of membership in a fraternity, sorority, or organization.

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Organization – refers to an organized body of people which includes, but is not limited to, any club, association, group, fraternity, and sorority. This term shall include the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), the Philippine Military Academy (PMA), the Philippine National Police Academy (PNPA), and other similar uniformed service learning institutions. Schools – refer to colleges, universities, and all other educational institutions. (Sec. 2) Prohibition on Hazing All forms of hazing shall be prohibited in fraternities, sororities, and organizations in schools, including citizens’ military training and citizens’ army training. This prohibition shall likewise apply to all other fraternities, sororities, and organizations that are not school-based, such as community-based and other similar fraternities, sororities, and organizations: Provided, That the physical, mental, and psychological testing and training procedures and practices to determine and enhance the physical, mental, and psychological fitness of prospective regular members of the AFP and the PNP as approved by the Secretary of National Defense and the National Police Commission, duly recommended by the Chief of Staff of the AFP and the Director General of the PNP, shall not be considered as hearing for purposes of this Act: Provided, further, That the exception provided herein shall likewise apply to similar procedures and practices approved by the respective heads of other uniformed learning institutions as to their prospective members, nor shall this provision apply to any customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective, subject to prior submission of a medical clearance or certificate. In no case shall hazing be made a requirement for employment in any business or corporation. (Sec. 3) Allowed Initiation Rites 1. School-based Initiation Rites Provided, that:

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a. There is a prior written application to conduct initiation rites to the proper authorities of the school not later than seven days prior to the scheduled initiation date; b. The written application shall indicate the place and date of the initiation rites and the names of recruits, neophytes or applicants to be initiated and the manner by which they will conduct the initiation rites; c. Such written application shall further contain an undertaking that no harm of any kind shall be committed by anybody during the initiation rites; d. The initiation rites shall not last more than three days; e. The application shall contain the names of incumbent officers of the fraternity, sorority or organization and any person who will take charge in the conduct of the initiation rites; f. The application shall be under oath with a declaration that it has been posted in the official school bulletin board, the bulletin board of the office of the fraternity, sorority, or organization and two other conspicuous places in the school or in the premises of the organization. g. The application shall be posted from the time of submission of the written notice to the school authorities or head of organization and shall only be removed from its posting three days after the conduct of the initiation rites . (Sec. 4) 2. Community-Based and Other Similar Organizations Provided, that: a. A prior written application to conduct initiation rites shall be made to the punong barangay in the barangay or the municipal or city mayor in the municipality or city where the communitybased fraternity, sorority, or organization is based, not later than seven days prior to the scheduled initiation date; b. The written application shall indicate the place and date of the initiation rites and the names of recruits, neophytes or applicants to be initiated; c. Such written application shall further contain an undertaking that no harm of any kind shall be committed by anybody during the initiation rites;

d. A medical certificate of the recruit, neophyte, or applicant must be attached to the application to ensure fitness to undergo initiation when it involves physical activity not falling under the definition of hazing; e. The initiation rites shall not last more than three days; f. The application shall contain the names of incumbent officers of the community-based fraternity, sorority or organization and any person who will take charge in the conduct of the initiation rites. g. The application shall be under oath with a declaration that it has been posted on the official bulletin board of the barangay hall where the community-based fraternity, sorority, or organization is based, and on the bulletin board of the office of the communitybased fraternity, sorority, or organization. h. The application shall be posted from the time of submission of the written notice to the punong barangay or municipal or city mayor and shall only be removed from its posting three days after the conduct of the initiation rites. (Sec. 10) Persons Liable Principals: a. Those who actually planned or participated in the hazing (Sec. 14, par. a, b [1]); b. Those persons who are actually present in the conduct of the hazing (Sec. 14, par. [c]); c. Those officers of the fraternity, sorority, or organization who is present during the hazing (Sec. 14 ,par. B [2]); d. The adviser of a fraternity, sorority, or organization who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if such adviser/s can do so without peril to their person or their family (Sec. 14, par. B [3]); e. Those former officers, nonresident members, or alumni of the fraternity, sorority, or organization who are also present during the hazing (Sec. 14, par. B [4]); f. Officers or members of a fraternity, sorority, or organization who knowingly cooperated in carrying out the hazing by inducing the victims to be present thereat (Sec. 14, par. B [5]);

g. Members of the fraternity, sorority, or organization who are present during the hazing when they are intoxicated or under the influence or under the influence of alcohol or illegal drugs (Sec. 14, par. B [6]); h. The owner or lessee of the place where hazing is conducted when such owner or lessee has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if they can do so without peril to their person or their family. (Sec. 14, par. [3]); i. The parents if the hazing is held in the home of one of the officers or members of the fraternity, sorority or organization, when they have actual knowledge of the hazing conducted but failed to take any action to prevent the same form occurring or failed to promptly report the same to the law enforcement authorities if such parents can do so without peril to their person or family. (Sec. 14, par. [3]); and j. The presence of any person, even if such person is not a member of the fraternity, sorority or organization, during the hazing is a prima facie evidence of participation as principal, unless such person prevented the commission of the punishable acts and promptly reported the same to law enforcement authorities if they can do so without peril to their person or their family. (Sec. 14, par. 5) Accomplices The following shall be liable as an accomplice and administratively accountable: 1. School authorities such as faculty members. 2. Barangay, municipal or city officials. Provided that: CONSENT and ACTUAL KNOWLEDGE – the mentioned parties allowed or be consented to the conduct of hazing or where there is actual knowledge of hazing but such officials failed to take any action to prevent the same from occurring or failed to promptly report to the law enforcement authorities if the same can be done without peril to their person or their family. (Sec. 14, par. 4)

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Penalties a) The penalty of reclusion perpetua and a fine of P3,000,000.00 shall be imposed upon those who actually planned or participated in the hazing if, as a consequence of the hazing, death, rape, sodomy, or mutilation results therefrom; b) The penalty of reclusion perpetua and a fine of P2,000,000.00 shall be imposed upon: 1. All persons who actually planned or participated in the conduct of the hazing; 2. All officers of the fraternity, sorority, or organization who are actually present during the hazing; 3. The adviser of a fraternity, sorority, or organization who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if such adviser or adviser or advisers can do so without peril to their person or their family; 4. All former officers, nonresident members, or alumni of the fraternity, sorority, or organization who are also present during the hazing:

Provided, that should the former officer,

nonresident member, or alumnus be a member of the Philippine Bar, such member shall immediately be subjected to disciplinary proceedings by the Supreme Court pursuant to its power to discipline members of the Philippine Bar: Provided, further, that should the former officer, nonresident member, or alumnus belong to any other profession subject to regulation by the Professional Regulation Commission (PRC), such professional shall immediately be subjected to disciplinary proceedings by the concerned Professional Regulatory Board, the imposable penalty for which shall include, but is not limited to, suspension for a period of not less than three or revocation of the professional license. A suspended or revoked professional license pursuant to this section may be reinstated upon submission of affidavits from at least three disinterested persons, good moral certifications from different unaffiliated

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and credible government, religious, and socio-civic organizations and such other relevant evidence to show that the concerned professional has become morally fit for readmission into the profession: Provided, that said readmission into the profession shall be subject to the approval of the respective Professional Regulatory Board; 5. Officers of members of a fraternity, sorority, or organization who knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat; and 6. Members of the fraternity, sorority, or organization who are present during the hazing when they are intoxicated or under the influence of alcohol or illegal drugs; c) The penalty of reclusion temporal in its maximum period and a fine of P1,000,000.00 shall be imposed upon all persons who are present in the conduct of the hazing; d) The penalty of reclusion temporal and fine of P1,000,000.00 shall be imposed upon former officers, nonresident member, alumni of the fraternity, sorority, or organization who, after the commission of any of the prohibited acts proscribed herein, will perform any act to hide, conceal, or otherwise hamper or obstruct any investigation that will be conducted thereafter:

Provided, that should the former officer,

nonresident member, or alumnus be a member of the Philippine Bar, such member shall immediately be subjected to disciplinary proceedings by the Supreme Court pursuant to its power to discipline members of the Philippine Bar: Provided, further, That should the former officer, nonresident members, or alumnus belong to any other profession subject to regulation by the PRC, such professional shall immediately be subjected to disciplinary proceedings by the concerned Professional Regulatory Board, the imposable penalty for which shall include, but is not limited to, suspension for a period of not less than three years or revocation of the professional license pursuant to this section may be reinstated upon submission of affidavits from at least three disinterested persons, good moral certifications from

different unaffiliated and credible government, religious, and socio-civic organizations, and such other relevant evidence to show that the concerned professional has become morally fit for readmission into the profession: Provided, that said readmission into the profession shall be subject to the approval of the respective Professional Regulatory Board." e) The penalty of prision correcional in its minimum period shall be imposed upon any person who shall intimidate, threaten, force, or employ, or administer any form of vexation against another person for the purpose of recruitment in joining or promoting a particular fraternity, sorority, or organization. The persistent and repeated proposal or invitation made to a person who had twice refused to participate or join the proposed fraternity, sorority, or organization, shall be prima facie evidence of vexation for purposes of this section; and f) A fine of P1,000,000.00 shall be imposed on the school if the fraternity, sorority, or organization filed a written application to conduct an initiation which was subsequently approved by the school and hazing occurred during the initiation rites or when no representatives from the school were present during the initiation as provided under Sec. 5 of this Act: Provided, that if hazing has been committed in circumvention of the provisions of this Act, it is incumbent upon school officials to investigate motu propio and take an active role to ascertain factual events and identity witnesses in order to determine the disciplinary sanctions it may impose, as well as provide assistance to police authorities. (Sec. 14) E. ANTI-MONEY LAUNDERING ACT OF 2001 [REPUBLIC ACT NO. 9160] AN ACT DEFINING THE CRIME OF MONEY LAUNDERING, PROVIDING PENALTIES THEREFOR AND FOR OTHER PURPOSES Amended by R.A. 9194, R.A. 10167, R.A. 10168 and R.A. 10365, also known as An Act Further Strengthening the Anti-Money Laundering Law

Money laundering is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources. (Sec. 4) Suspicious transactions are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: 1. There is no underlying legal or trade obligation, purpose or economic justification; 2. The client is not properly identified; 3. The amount involved is not commensurate with the business or financial capacity of the client; 4. Taking into account all known circumstances, it may be perceived that the client's transaction is structured in order to avoid being the subject of reporting requirements under the Act; 5. Any circumstances relating to the transaction which is observed to deviate from the profile of the client and/or the client's past transactions with the covered institution; 6. The transaction is in a way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or 7. Any transactions that is similar or analogous to any of the foregoing. (Sec. 7[b][1]) Covered transaction refers to: 1. A transaction in cash or other equivalent monetary instrument exceeding P500,000.00; or 2. A transaction exceeding P1,000,000.00 in cases of jewelry dealers, dealers in precious metals and dealers in precious stones. (Rule 3[G], 2016 Revised Implementing Rules and Regulations of R.A. No. 9160, as amended) Covered persons, natural or juridical, refer to: 1. Banks, non-banks, quasi-banks, trust entities, foreign exchange dealers, pawnshops, money changers, remittance and transfer companies and other similar entities and all other persons and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP);

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2. Insurance companies, pre-need companies and all other persons supervised or regulated by the Insurance Commission (IC); 3. (i) Securities dealers, brokers, salesmen, investment houses and other similar persons managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, and other similar persons, and (iii) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by the Securities and Exchange Commission (SEC); 4. Jewelry dealers in precious metals, who, as a business, trade in precious metals, for transactions in excess of P1,000,000.00; 5. Jewelry dealers in precious stones, who, as a business, trade in precious stones, for transactions in excess of P1,000,000.00; 6. Company service providers which, as a business, provide any of the following services to third parties: (i) acting as a formation agent of juridical persons; (ii) acting as (or arranging for another person to act as) a director or corporate secretary of a company, a partner of a partnership, or a similar position in relation to other juridical persons; (iii) providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other legal person or arrangement; and (iv) acting as (or arranging for another person to act as) a nominee shareholder for another person; and 7. Persons who provide any of the following services: i. managing of client money, securities or other assets; ii. management of bank, savings or securities accounts; iii. organization of contributions for the creation, operation or management of companies; and iv. creation, operation or management of juridical persons or arrangements, and buying and selling business entities. (Sec. 1, Rule 4, IRR)

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The term ‘covered persons’ shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments. (Sec. 1.3 Rule 12, 2018 IRR) Duty of Covered Persons To report to the Anti-Money Laundering Council (AMLC) all covered transactions within five working days from occurrence thereof, unless the AMLC prescribes a different period not exceeding 15 working days. Unlawful activity refers to any act or omission or series or combination thereof involving or having direct relation to the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

15.

Kidnapping for ransom Violations under the Comprehensive Dangerous Act of 2002 Violations under Anti-Graft and Corrupt Practices Act Plunder Robbery and extortion Jueteng and Masiao Piracy on the high seas Qualified theft Swindling Smuggling Violations under the E-Commerce Act of 2000 Hijacking and other violations under Republic Act No. 6235; destructive arson and murder Terrorism and conspiracy to commit terrorism as defined and penalized under Secs. 3 and 4 of R.A. No. 9372 Financing of terrorism under Sec. 4 and offenses punishable under Secs. 5, 6, 7 and 8 of Terrorism Financing Prevention and Suppression Act of 2012 Bribery under the RPC, as amended, and Corruption of Public Officers under Art. 212 of the RPC, as amended

16. Frauds and Illegal Exactions and Transactions 17. Malversation of Public Funds and Property 18. Forgeries and Counterfeiting 19. Violations of Secs. 4 to 6 of Anti-Trafficking in Persons Act of 2003 20. Violations of Secs. 78 to 79 of the Revised Forestry Code of the Philippines, as amended 21. Violations of Secs. 86 to 106 of the Philippine Fisheries Code of 1998 22. Violations of Secs 101 to 107, and 110 of the Philippine Mining Act of 1995 23. Violations of Sec. 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise known as the Wildlife Resources Conservation and Protection Act 24. Violation of Sec. 7(b) of the National Caves and Cave Resources Management Protection Act 25. Violation of the Anti-Carnapping Act of 2002, as amended 26. Violations of Secs. 1, 3 and 5 of the decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives 27. Violation of the Anti-Fencing Law 28. Violation of Sec. 6 of the Migrant Workers and Overseas Filipinos Act of 1995, as amended 29. Violation of the Intellectual Property Code of the Philippines 30. Violation of Sec. 4 of the Anti-Photo and Video Voyeurism Act of 2009 31. Violation of Sec. 4 of the Anti-Child Pornography Act of 2009 32. Violations of Secs. 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of the Special Protection of Children Against Abuse, Exploitation and Discrimination 33. Fraudulent practices and other violations under Securities Regulation Code of 2000 34. Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

How is Money committed

Stages of Money Laundering:

Laundering

offense

Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity:

b) c)

d) e)

transacts said monetary instrument or property; converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c); aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above.

Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the AMLC, fails to do so. (Sec. 4, R.A. No. 10365) Prosecution Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined. The prosecution of any offense or violation under this Act shall proceed independently of any proceeding relating to the unlawful activity. (Sec. 6, R.A. No. 10365) Jurisdiction The Regional Trial Courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan. (Sec. 1, Rule 4, IRR)

1. 2.

Placement – the physical disposal of cash proceeds derived from illegal activity. Layering – separating illicit proceeds from their source by creating complex layers of financial transactions designed to

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disguise the audit trail and provide anonymity. Integration – the provision of apparent legitimacy to criminally derived wealth. If the layering process has succeeded, integration schemes place the laundered proceeds back into the economy in such a way that they re-enter the financial system appearing to be normal business funds. (BSP Anti-Money Laundering Model Operating Manual for Banks and other covered institutions)

Penalties a.

Penalties for Money Laundering - The following are the penalties to be imposed on persons convicted of money laundering: 1. Penalties for Sec. 4(a), (b), (c) and (d) of the AMLA - The penalty of imprisonment ranging from 7 to 14 years and a fine of not less than P3,000,000.00, but not more than twice the value of the monetary instrument or property involved in the offense, shall be imposed upon a person convicted under Sec. 4(a), (b), (c) and (d) of the AMLA, as amended. 2. Penalties for Sec. 4(e) and (f) of the AMLA - The penalty of imprisonment from four to seven years and a fine of not less than P1,500,000.00 but not more than P3,000,000.00, shall be imposed upon a person convicted under Sec. 4(e) and (f) of the AMLA, as amended. 3. Penalties for the Last Paragraph of Sec. 4 of the AMLA - The penalty of imprisonment from six months to four years or a fine of not less than P100,000.00 but not more than P500,000.00, or both, shall be imposed on a person convicted under the last paragraph of Sec. 4 of the AMLA, as amended.

b. Penalties for Knowingly Participating in the Commission of Money Laundering - The penalty of imprisonment ranging from four to seven years and a fine corresponding to not more than 200% of the value of the monetary instrument or property laundered shall be imposed upon the covered person, its directors, officers or personnel who knowingly participated in the

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commission laundering.

the

crime

money

Penalties for Failure to Keep Records The penalty of imprisonment from six months to one year or a fine of not less than P100,000.00 but not more than P500,000.00, or both, shall be imposed on a person convicted under Sec. 9(b) of the AMLA. d. Penalties for Malicious Reporting - Any person who, with malice, or in bad faith, reports or files a completely unwarranted or false information relative to money laundering transaction against any person shall be subject to a penalty of six months to four years’ imprisonment and a fine of not less than P100,000.00 but not more than P500,000.00, at the discretion of the court: Provided, that the offender is not entitled to avail of the benefits of the Probation Law. If the offender is a corporation, association, partnership or any other juridical person, the penalty of imprisonment and/or fine shall be imposed upon the responsible officers, as the case may be, who participated in, or allowed by their gross negligence the commission of the crime and the court may suspend or revoke its license. If the offender is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties herein prescribed. If the offender is a public official or employee, he shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be. Any public official or employee who is called upon to testify and refuses to do the same or purposely fails to testify shall suffer the same penalties herein prescribed. e. Penalties for Breach of Confidentiality - The punishment of imprisonment ranging from three to eight years and a fine of not less than P500,000.00 but not more than P1,000,000.00, shall be imposed on a person convicted for a violation under Sec. 9(c) of the AMLA. In case of a breach of confidentiality that is published or reported by the media, the responsible reporter,

writer, president, publisher, manager and editor-in-chief shall be liable under the AMLA. f.

Criminal Liability of Corporate Entities - If the offender is a corporate entity, the penalties herein shall be imposed upon the responsible officers who participated in, or allowed by their gross negligence the commission of the crime; and/or directors or trustees who willfully and knowingly voted for or assented to violate the AMLA, this RIRR, or other AMLC issuances. (Rule 14, 2016 Revised Implementing Rules and Regulations of R.A. No. 9160, as amended)

F. ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 [REPUBLIC ACT NO. 9995] AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO AND VIDEO VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES Definition of Terms: Broadcast means to make public, by any means, a visual image with the intent that it be viewed by a person or persons. (Sec. 3 [a]) Capture (with respect to an image) means to videotape, photograph, film, record by any means, or broadcast. (Sec. 3 [b]) Photo or video voyeurism means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such person. (Sec. 3 [d])

a person believe that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place. (Sec. 3 [f]) Prohibited Acts: 1. To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; 2. To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; 3. To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or 4. To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. (Sec. 4 [a][b][c][d]) NOTE: The prohibition under Sec. 4 paragraphs (b), (c) and (d) of R.A. No. 9995 shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. (Sec. 4) Inadmissibility of Evidence Any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Sec. 7)

Under circumstances in which a person has a reasonable expectation of privacy means

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G. ANTI-PLUNDER ACT [REPUBLIC ACT NO. 7080] AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER Definition of Terms: Public officers mean any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. (Sec. 1 [a]) Person includes any natural or juridical person, unless the context indicates otherwise. (Sec. 1 [c]) Ill-gotten wealth any asset, property, business enterprise or material possession of any person within the purview of Sec. 2 hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of schemes. (Sec. 1 [d]) Acquisition of ill-gotten wealth It is acquired by any combination or series of the following means or similar schemes: 1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of

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decrees and orders intended to benefit particular persons or special interests; or 6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Sec. 1 [d]) Elements: (PuMeSche50) 1. That the offender is a Public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates, or other persons; 2. That he amassed, accumulated or acquired illgotten wealth through a combination or series of Means or Schemes mentioned above; and 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. Persons Liable: 1. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Sec. 1(d) hereof in the aggregate amount or total value of at least P50,000,000.00; or 2. Any person who participated with the said public officer in the commission of an offense. (Sec 2, R.A. 7080, as amended by Sec. 12, R.A. No. 7659) "in connivance" would suggest an agreement or consent to commit an unlawful act or deed with or by another, to connive being to cooperate secretly or privily with another. “to participate” is to have a part or a share in conjunction with another of the proceeds of the unlawful act or deed. (Serapio vs. Sandiganbayan, G.R. No. 148468, January 28, 2003) Combination means at least two acts of a different category.

Example: raids on the public treasury and fraudulent conveyance of assets belonging to the National Government (Estrada vs. Sandiganbayan, supra.) Series means at least two acts of the same category (Estrada vs Sandiganbayan, supra.). Example: Misappropriation, malversation and raids on the public treasury, all of which falling under item (1) in the enumeration under the definition of “ill-gotten wealth.” (Estrada vs. Sandiganbayan, supra.). Pattern It consists of at least a combination or series of overt or criminal acts enumerated under the definition of “ill-gotten wealth,” directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. There must either be an “overall unlawful scheme” or “conspiracy” to achieve said common goal. Competent court All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan. (Sec. 3, R.A. No. 7080) NOTE: Because plunder is a crime that only a public official can commit by amassing, accumulating, or acquiring ill-gotten wealth in the aggregate amount or total value of at least ₱50,000,000.00, the identification in the information of such public official as the main plunderer among the several individuals thus charged is logically necessary under the law itself. (Arroyo vs. People, G.R. No. 220598, April 18, 2017) Rule of evidence in plunder It shall not be necessary to prove each and every criminal act done, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. (Sec. 4) Effects if case pending in court Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. (Sec. 5)

Effect of final judgment:  If convicted – lose all retirement or gratuity benefits under any law.  If acquitted – reinstatement and be entitled to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him. (Sec. 5) Prescription of Crime of Plunder General Rule: The crime shall prescribe in 20 years. Exception: The right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel. (Sec. 6) NOTE: The legislative declaration in R.A. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se (Estrada vs. Sandiganbayan, G.R. No. 148560, November 2, 2001). Immunity from prosecution Any person who voluntarily gives information and who willingly testifies against any public official or employee for any of the following violations shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: 1. 2. 3. 4. 5.

Arts. 210, 211, and 212 of the RPC; R.A. 3019, as amended; Sec. 345 of the Internal Revenue Code; Sec. 3604 of the Tariff and Customs Code; and Other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse (e.g. R.A. 7080).

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The following conditions must concur in order for the grant of immunity: 1. The information must refer to consummated violations of any of the above-mentioned provisions of law, rules and regulations; 2. The information and testimony are necessary for the conviction of the accused public officer; 3. Such information and testimony are not yet in the possession of the State; 4. Such information and testimony can be corroborated on its material points; and 5. The informant or witness has not been previously convicted of a crime involving moral turpitude. (Sec. 1, P.D. No. 749) NOTES:  This immunity may be enjoyed even in cases where the information and testimony are given against a person who is not a public official but who is a principal, or accomplice, or accessory in the commission of any related violations.  This immunity may be enjoyed by such informant or witness notwithstanding that he offered or gave the bribe or gift to the public official or his accomplice for such gift or bribegiving. (Id.) H. ANTI-TORTURE ACT OF 2009 [REPUBLIC ACT NO. 9745] AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR The law penalizes: 1. Torture; and 2. Other cruel, inhuman treatment or punishment.

and

degrading

Definition of Terms Torture – refers to an act by which: a) Severe pain or suffering, whether physical or mental, is intentionally inflicted on a person;

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b) By or at the instigation of or with the consent or acquiescence of a person in authority (PA) or agent of a person in authority (APA); c) For such purposes as: 1. Obtaining from him or a third person information or a confession; 2. Punishing him for an act he or a third person has committed or is suspected of having committed; or 3. Intimidating or coercing him or a third person; or 4. For any reason based on discrimination of any kind. NOTE: It does not include pain or buffering arising only from, inherent in or incidental to lawful sanctions. (Sec. 3 [a]) Other cruel, inhuman, and degrading (CID) treatment or punishment refers to: a. Deliberate and aggravated treatment or punishment not included in the enumeration of acts of torture under Sec. 4; b. Inflicted by a PA or APA against a person under his custody, which attains a level of severity; or c. Causing the latter suffering, gross humiliation, or debasement. (Sec. 3 [b]) NOTE: The assessment of the level of severity shall depend on all circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. (Sec. 5) Three forms of torture: a. Physical which involves treatment or punishment causing severe pain, exhaustion, disability or dysfunction of one or more parts of the body. (Sec. 4 [a]) b. Mental/psychological which affects or confuses the mind and/or undermines one’s dignity and morale. (Sec. 4 [b]) c. Other CID treatment or punishment at a level of severity causing suffering, gross humiliation, or debasement to the victim. (Sec. 5)

Specific Acts of Physical Torture (Sec. 4 [a]) 1. Systematic beating, head-banging, 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 or acid, or 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: a. The administration or drugs to induce confession and/ or reduce mental competency; or b. The use of drugs to induce extreme pain or certain symptoms of a disease; and 14. Other analogous acts of physical torture. Specific Acts of Torture (Sec. 4 [b])

Mental/Psychological

1. Blindfolding; 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 will 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. Victim – refers to the: a. person subjected to torture or other cruel, inhuman and degrading treatment or punishment as defined above; and b. any individual who has suffered harm as a result of any act(s) of torture, or other CID treatment or punishment. (Sec. 3 [c]) 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 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. (Sec. 3 [d]) Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Right Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other

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cruel, inhuman and degrading treatment or punishment. (Sec. 6)

torture or other CID treatment or punishment is being committed and not being either principal or accomplice, take part subsequent to its commission in the following ways: Profiting from effects of the act; Concealing acts; or harboring or assisting in the escape of the of the principal.

Prohibited Detention – Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity are hereby prohibited. (Sec. 7) NOTE: Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against a person or persons accused of committing torture. (Sec. 8) The PNP, AFP and other law enforcement agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on prisoners or detainees incarcerated or detained therein. This list shall be available to the public at all times and updated by the same agencies every 5 days of the month at the minimum (Sec. 7). Persons Criminally Liable The law attaches criminal liability to principals, accomplices and accessories to the crimes of “torture” and “other cruel, inhuman and degrading treatment or punishment”. PRINCIPAL

ACCOMPLICE

1. By actual participation; 2. By inducement; 3. By indispensable cooperation; 4. For issuing an order to a lower raking military, police or law enforcement personnel to commit torture for whatever purpose; and 5. By the application of the doctrine of command responsibility. Any person who, not being included in Sec. 26, cooperate in the execution of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts. (Sec. 27,

IRR of the Anti-Torture Act of 2009)

ACCESSORIES

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Public officers or employees who have knowledge that

Provided, that the accessory acts are done with the abuse of the official’s public functions.

(Sec. 13[4], R.A. No. 9745)

 Accomplices are punished as principals. Any person “who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal. (Sec. 13[1]) Distinction between Art. 263 and 265 of RPC and R.A. No. 9745 As to: Kind of offense Offender

RPC Serious/Less Serious Physical Injury. Any person (Private person or public official).

R.A. No. 9745 Torture and/or CID. A Person in Authority or an Agent of Person in Authority.

Penalties for the crime of Torture(Sec.14) Any person who commits an act of torture under the following circumstances present: a. Torture resulting in the death of any person; b. Torture resulting in mutilation; c. Torture with rape; d. Torture with other forms of sexual abuse and, in consequence of torture, the victim becomes insane, imbecile, impotent, blind or maimed for life; and e. Torture committed against children. If a person commits any act of mental/ psychological torture resulting in: a. Insanity;

Reclusion Perpetua

(20 years and 1 day to 40 years of imprison-ment)

Reclusion Temporal

b. complete or partial amnesia; or c. fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame. If a person commits any act in consequence of torture where the victim: a. loses the power of speech or the power to hear or to smell; or b. loses an eye, a hand, a foot, an arm or a leg; or c. loses the use of any such member; or d. shall become permanently incapacitated for labor. Any act in consequence of torture where the victim: a. becomes deformed; or b. loses any part of his/her body other than those cited above; c. loses the use thereof, or becomes ill or incapacitated for labor for a period of more than ninety (90) days. If a person commits any act of torture: a. resulting in psychological, mental and emotional harm other than torture; b. resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame. Any person who establishes, operates and maintains secret detention places and/or effect or cause to effect solitary confinement, incommunicado or other similar forms of prohibited detention. If a person who commits any act as a result of torture where the victim becomes ill or incapacitated for labor for more than thirty (30) days but not more than ninety (90) days.

(12 years & 1 day to 20 years of imprisonment)

Prision

Mayor

medium and maximum periods (8 years & 1 day to 10 years to 10 years & 1 day to 12 years of imprisonment)

Prision

If a person commits any act as a result of torture where the victim shall have been ill or incapacitated for labor for thirty (30) days or less.

Mayor

minimum and medium periods (6 years & 1 day to 8 years to 8 years & 1 day to 10 years of imprisonment)

Prision Correctional

(6 months, & 1 day to 6 years)

If responsible officers or personnel of the AFP, the PNP and other law enforcement agencies fail to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Sec. 7 of the Anti-Torture Act of 2009. If the crime committed falls under “other cruel, inhuman or degrading treatment or punishment”

Prision Correctional in its minimum and medium period (6 months, & 1 day to 2 years & 4 months to 2 years, 4 months & 1 day to 4 years & 2 months) Arresto Mayor (1 month & 1 day to 6 months)

Arresto Mayor

Rights and Remedies under the AntiTorture Act of 2009 Notwithstanding all other applicable laws, the following rights and remedies shall be afforded to victims of torture: 1. Legal assistance The Commission on Human Rights and the Public Attorney's Office shall render legal assistance in the investigation and monitoring and/or filing of the complaint. 2. Right to Physical, Medical Psychological Examination

Prision Correctional in its maximum period to prision mayor in its minimum period (4 years, 2 months & 1 day to 6 years to 6 years & 1 day to 8 years)

and

a) Right to be informed of the right to demand physical examination by an independent and competent doctor of his/her own choice; b) Demand to be provided by the State if he cannot afford the services of a private doctor. No cost shall accrue to the victim when the medical examination is provided by the State (Sec. 19, IRR of the Anti-Torture Act of 2009); c) Request for psychological evaluation, if available;

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d) Access proper and adequate medical treatment to document possible allegations of torture (Sec. 12 of RA 9745 viz. Sec. 19 of the IRR), and have his/her physical examination and/or psychological evaluation be contained in a medical report, duly signed by the attending physician and detailing the victim’s medical history and the physician’s findings, including the nature and probable cause of the his/her injury, pain, disease and/or trauma, and the approximate time and date when it/they was/were sustained. The report is to be attached to the custodial investigation report and considered a public document. e) Knowingly and voluntarily waive these rights in writing, executed in the presence and assistance of his/her counsel. 3. Institutional Protection Prompt and an impartial investigation – Within 60 working days from the lodging of the complaint, the concerned government agency such as the CHR, DOJ, PAO, NBI and the PNP shall complete and make available its investigation report and/or resolution, including appeals thereon, on the allegation of torture or other cruel, inhumane and degrading treatment or punishment. (Sec. 9) Sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of complaint or the presentation of evidence – a) Place the alleged perpetrator under preventive suspension during the period of administrative investigation; and b) Transfer of the detainee to a safe place. (Sec. 16, IRR of the Anti-Torture Act of 2009) The victim and the witnesses of torture may avail of the benefits under Republic Act 7891, otherwise known as the “Witness Protection, Security and Benefit Act” and other applicable laws. (Sec. 16, IRR of the Anti-Torture Act of 2009) 4. Expeditious disposition of Writs of Habeas Corpus, Amparo and Habeas Data Proceedings filed by Torture Victims (Sec. 10)

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5. Applicability of Refouler Refouler rule provides that no person shall be expelled, returned, or extradited to another State where there are substantial grounds to believe that he shall be in danger of being subjected to torture. (Sec. 17) 6. Right to Compensation A victim has the right to claim compensation as provided for under Republic Act No. 7309 for an amount not lower than Ten Thousand Pesos (P10,000.00). He may also avail of other financial relief programs. These claims are nonexclusive; the victims may avail of both. 7. Rehabilitation The Department of Social Welfare and Development (DSWD), Department of Justice (DOJ) and Department of Health (DOH), together with human rights nongovernment organizations duly recognized by the government, are mandated to formulate a comprehensive rehabilitation program for the physical, mental, social, psychological healing and development of victims of torture and their families. Torture as a Separate and Independent Crime The felonies and offenses are in addition to the offense under this Act. Torture as a crime shall not absorb or shall not be absorbed by any other crime of felony committed as a consequence, or as a means in the conduct or commission thereof. Torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws. (Sec. 15) Exclusion from the Coverage of Special Amnesty Law In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. (Sec. 16)

NOTE: The statute of limitation or prescription period shall not apply to torture cases. (Sec. 45, IRR of the Anti-Torture Act of 2009) Applicability of the Revised Penal Code The provisions of the Revised Penal Code insofar as they are applicable shall be suppletory to this Act. Moreover, if the commission of any crime punishable under Title Eight (Crimes Against Persons) and Title Nine (Crimes Against Personal Liberty and Security) of the Revised Penal Code is attended by any of the acts constituting torture and other cruel, inhuman and degrading treatment or punishment as defined herein, the penalty to be imposed shall be in its maximum period. (Sec. 22) Applicability of Exclusionary Rule General Rule – Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceeding. Exception – If the same is used as evidence against a person or persons accused of committing torture. (Sec. 8) The Human Security Act includes torture as one of the punishable acts of terrorism: Use of threat, intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of a charged or suspected person under investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism. (Sec. 25) Death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological pressure. (Sec. 25) I.

ANTI-TRAFFICKING IN PERSONS ACT OF 2003

[REPUBLIC ACT NO. 9208, as amended by REPUBLIC ACT NO. 10364] AN ACT TO INSTITUTE POLICIES TO

ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS, AND FOR OTHER PURPOSES Definition of Terms: Trafficking in Persons refers to the recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat, or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of exploitation or when the adoption is induced by any form of consideration for exploitative purposes shall also be considered as ‘trafficking in persons’ even if it does not involve any of the means set forth in the preceding paragraph. (Sec. 3[a]) Child refers to a person below 18 years of age or one who is over 18 but is unable to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (Sec. 3 [b]) Prostitution refers to any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration. (Sec. 3 [c]) Forced Labor and Slavery refers to the extraction of work or services from any person by means of enticement, violence, intimidation or

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threat, use of, force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt-bondage or deception including any work or service extracted from any person under the menace of penalty. (Sec. 3 [d]) Slavery – refers to the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (Sec. 3 [e]) Involuntary Servitude – refers to a condition of enforced and compulsory service induced by means of any scheme, plan or pattern, intended to cause a person to believe that if he or she did not enter into or continue in such condition, he or she or another person would suffer serious harm or other forms of abuse or physical restraint, or threat of abuse or harm, or coercion including depriving access to travel documents and withholding salaries, or the abuse or threatened abuse of the legal process. (Sec. 3 [f]) Sex Tourism – refers to a program organized by travel and tourism-related establishments and individuals which consists of tourism packages or activities utilizing and offering escort and sexual services as enticement for tourists. This includes sexual services and practices offered during rest and recreation periods for members of the military. (Sec. 3 [g]) Sexual Exploitation – refers to participation by a person in prostitution, pornography or the production of pornography, in exchange for money, profit or any other consideration or where the participation is caused or facilitated by any means of intimidation or threat, use of force, or other forms of coercion, abduction, fraud, deception, debt bondage, abuse of power or of position or of legal process, taking advantage of the vulnerability of the person, or giving or receiving of payments or benefits to achieve the consent of a person having control over another person; or in sexual intercourse or lascivious conduct caused or facilitated by any means as provided in this Act. (Sec. 3 [h]) Debt Bondage – refers to the pledging by the debtor of his/her personal services or labor or those of a person under his/her control as a security or payment for a debt, when the length and nature of the services is not clearly defined or when the value of the services as reasonably

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assessed is not applied toward the liquidation of the debt. (Sec. 3 [i]) Pornography – refers to any representation, through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes. (Sec. 3 [j]) Punishable Acts: A) Acts of trafficking persons 1. To recruit, obtain, hire, provide, offer, transport, transfer, maintain, harbor, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, or sexual exploitation (Sec. 4[a]); 2. Introduce or match for money, profit, or material, economic, or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling, or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage (Sec. 4[b], R.A. 9208, as amended); 3. Offer or contract marriage, real or simulated, for purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage (Sec. 4[c], R.A. 9208, as amended); 4. Undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering of persons for prostitution, pornography or sexual exploitation (Sec. 4[d], R.A. 9208, as amended); 5. Maintain or hire a person to engage prostitution or pornography (Sec. 4[e], R.A. 9208, as amended); 6. To adopt persons by any form of consideration for exploitative purposes or to facilitate the same for purposes of prostitution, pornography, sexual

exploitation, forced labor, slavery, involuntary servitude or debt bondage (Sec. 4[f], R.A. 9208, as amended); 7. Adopt or facilitate the adoption or persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage (Sec. 4[g], R.A. 9208, as amended); 8. To recruit, hire, adopt, transport, transfer, obtain, harbor, maintain, provide, offer, receive or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person (Sec. 4[h], R.A. 9208, as amended); 9. To recruit, transport, obtain, transfer, harbor, maintain, offer, hire, provide, receive or adopt a child to engage in armed activities in the Philippines or abroad (Sec. 4[i], R.A. 9208, as amended); 10. To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Sec. 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: a) To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or b) To abuse or threaten the use of law or the legal processes (Sec. 4[j], R.A. 9208, as amended); 11. To recruit, transport, harbor, obtain, transfer, maintain, hire, offer, provide, adopt or receive a child for purposes of exploitation or trading them, including but not limited to, the act of baring and/or selling a child for any consideration or for barter for purposes of exploitation. Trafficking for purposes of exploitation of children shall include: a) All forms of slavery or practices similar to slavery, involuntary servitude, debt bondage and forced labor, including recruitment of children for use in armed conflict; b) The use, procuring or offering of a child for prostitution, for the

production of pornography, or for pornographic performances; c) The use, procuring or offering of a child for the production and trafficking of drugs; and d) The use, procuring or offering of a child for illegal activities or work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals (Sec. 4[k], R.A. 9208, as amended); 12. To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act. (Sec. 4[l], R.A. 9208, as amended) Attempted Trafficking in Persons Where there are acts to initiate the commission of a trafficking offense but the offender failed to or did not execute all the elements of the crime, by accident or by reason of some cause other than voluntary desistance, such overt acts shall be deemed as an attempt to commit an act of trafficking in persons. As such, an attempt to commit any of the offenses enumerated in Sec. 4 of this Act shall constitute attempted trafficking in persons. In cases where the victim is a child, any of the following acts shall also be deemed as attempted trafficking in persons: a) Facilitating the travel of a child who travels alone to a foreign country or territory without valid reason therefor and without the required clearance or permit from the Department of Social Welfare and Development, or a written permit or justification from the child’s parent or legal guardian; b) Executing, for a consideration, an affidavit of consent or a written consent for adoption; c) Recruiting a woman to bear a child for the purpose of selling the child; d) Simulating a birth for the purpose of selling the child; and e) Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and lowincome families, for the purpose of selling the child. (Sec. 4-A, R.A. No. 9208, as amended)

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Accomplice Whoever knowingly aids, abets, cooperates in the execution of the offense by previous or simultaneous acts defined in this Act shall be punished in accordance with the provisions of Sec. 10(c) of this Act. (Sec. 4-B, R.A. No. 9208, as amended) Accessories Whoever has the knowledge of the commission of the crime, and without having participated therein, either as principal or as accomplices, take part in its commission in any of the following manners: a) By profiting themselves or assisting the offender to profit by the effects of the crime; b) By concealing or destroying the body of the crime or effects or instruments thereof, in order to prevent its discovery; or c) By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his or her public functions or is known to be habitually guilty of some other crime. (Sec. 4-C R.A. No. 9208, as amended) B) Acts that promote trafficking in persons 1. Knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of trafficking in persons (Sec. 5[a], R.A. No. 9208, as amended); 2. To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers, overseas employment certificates or other certificates of any government agency which issues these certificates, decals and such other markers as proof of compliance with government regulatory and predeparture requirements for the purpose of promoting trafficking in persons (Sec. 5[b], R.A. No. 9208, as amended); 3. Advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information and technology and in the internet, of any brochure, flyer, or any propaganda material that promotes

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trafficking in persons (Sec. 5[c], R.A. No. 9208, as amended); 4. Assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide predeparture registration and services for departing persons for the purpose of promoting trafficking in persons (Sec. 5[d], R.A. No. 9208, as amended); 5. Facilitate, assist or help in the exit and entry of persons from/to the country and international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons (Sec. 5[e], R.A. No. 9208, as amended); 6. Confiscate, conceal or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in the furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies (Sec. 5[f], R.A. No. 9208, as amended); 7. Knowingly benefit from, financial or otherwise, or make use of the labor or services of a person held to a condition of involuntary servitude or slavery (Sec. 5[g], R.A. No. 9208, as amended); 8. To tamper with, destroy, or cause the destruction of evidence, or to influence or attempt to influence witnesses, in an investigation or prosecution of a case under this Act (Sec. 5[h], R.A. No. 9208, as amended); 9. To destroy, conceal, remove, confiscate or possess, or attempt to destroy, conceal, remove, confiscate or possess, any actual or purported passport or other travel, immigration or working permit or document, or any other actual or purported government identification, of any person in order to prevent or restrict, or attempt to prevent or restrict, without lawful authority, the person’s liberty to move or travel in order to maintain the labor or services of that person (Sec. 5[i], R.A. No. 9208, as amended); or 10. To utilize his or her office to impede the investigation, prosecution or execution of

lawful orders in a case under this Act (Sec. 5[j], R.A. No. 9208, as amended). C) Causing publicity of trafficking in persons

any

case

In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons. (Sec. 7, R.A. No. 9208, as amended) D) Use of Trafficked Person Any person who buys or engages the services of trafficked persons for prostitution. (Sec. 11, R.A. No. 9208, as amended). Qualified Trafficking in Persons 1. Trafficked person is a child; 2. Adoption is effected through R.A. No. 8043, otherwise known as the “Inter-Country Adoption Act of 1995” and said that adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 3. Crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three or more persons conspiring or confederating with another. It is deemed committed in a large scale if committed against three or more persons, individually or as a group; 4. When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; 5. Trafficked person is recruited to engage in prostitution with any member of the military or law officer or employee; 6. Offender is a member of the military or law enforcement agencies; 7. Act of trafficking in persons, by reason or on occasion, the offended party dies, becomes

insane, suffers mutilation or is afflicted with Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS); 8. When the offender commits one or more violations of Sec. 4 over a period of 60 or more days, whether those days are continuous or not; and 9. When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking. (Sec. 6, R.A. No. 9208, as amended) Who May File Complaint for Trafficking 1. Any person who has knowledge of the commission of any offense under this Act; 2. Trafficked person; 3. Parents; 4. Spouse; 5. Siblings; 6. Children; or 7. Legal guardian. (Sec. 8, R.A. No. 9208, as amended) Venue of Criminal Action A criminal action arising from violation of this Act shall be filed: 1. where the offense was committed, 2. or where any of its elements occurred, 3. or where the trafficked person actually resides at the time of the commission of the offense.

Provided, that the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. (Sec. 9, R.A. No. 9208, as amended) Prescriptive Period Trafficking cases under this Act shall prescribe in 10 years: Provided, however, that trafficking cases committed by a syndicate or in a large scale as defined under Sec. 6 shall prescribe in 20 years. The prescriptive period shall commence to run from the day on which the trafficked person is delivered or released from the conditions of bondage and shall be interrupted by the filing of the complaint or information and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted

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or are unjustifiably stopped for any reason not imputable to the accused. (Sec. 12, R.A. No. 9208, as amended) Penalties (Sec. 12, R.A. No. 10364) The following penalties and sanctions are hereby established for the offenses enumerated in this Act: (a) Any person found guilty of committing any of the acts enumerated in Sec. 4 shall suffer the penalty of imprisonment of 20 years and a fine of not less than P1,000,000.00 but not more than P2,000,000.00; (b) Any person found guilty of committing any of the acts enumerated in Sec. 4-A of this Act shall suffer the penalty of imprisonment of 15 years and a fine of not less than P500,000.00 but not more than P1,000,000.00; (c) Any person found guilty of Sec. 4-B of this Act shall suffer the penalty of imprisonment of 15 years and a fine of not less than P500,000.00 but not more than P1,000,000.00; NOTE: In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment agency involved in trafficking. The license of a recruitment agency which trafficked a child shall be automatically revoked. (d) Any person found, guilty of committing any of the acts enumerated in Sec. 5 shall suffer the penalty of imprisonment of 15 years and a fine of not less than P500,000.00 but not more than P1,000,000.00; (e) Any person found guilty of qualified trafficking under Sec. 6 shall suffer the penalty of life imprisonment and a fine of not less than P2,000,000.00 but not more than P5,000,000.00; (f) Any person who violates Sec. 7 hereof shall suffer the penalty of imprisonment of six years and a fine of not less than P500,000.00 but not more than P1,000,000.00; (g) If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime

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or who shall have knowingly permitted or failed to prevent its commission; (h) The registration with the SEC and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name; (i) If the offender is a foreigner, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country; (j) Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His or her retirement and other benefits shall likewise be forfeited; and (k) Conviction, by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption. Other relevant facts Trafficked persons shall not be penalized for unlawful acts committed as a direct result or incident, or in-elation to being trafficked enumerated in this act. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. Victims of trafficking for purposes of prostitution as defined under Section 4 of this Act are not covered by Article 202 of the Revised Penal Code and as such, shall not be prosecuted, fined, or otherwise penalized under the said law. (Sec.17, R.A. No. 9208, as amended)

Testimony PUNISHABLE ACTS The testimony of the confidential informant is not indispensable in the crime of trafficking in persons. Neither is his identity relevant. It is sufficient that the accused has lured, enticed, or engaged its victims or transported them for the established purpose of exploitation, which was sufficiently shown by the trafficked person's testimony alone (Santiago vs. People of the Philippines, G.R No. 213760, July 1, 2019) J. ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 [REPUBLIC ACT No. 9262] AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES Violence Against Women and their Children refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Sec. 3[a], R.A. No. 9262) It seeks to address the prevalence of violence against women and children (VAWC), abuses on women and their children by their intimate partners like:    

Husband or ex-husband. Live-in partner or ex-live in partner. Boyfriend/girlfriend or ex-boyfriend/exgirlfriend. Dating partner or ex-dating partner.

NOTE: A man cannot be a victim under this Act. CHILDREN - Those below eighteen (18) years of age or older but are incapable of taking care of themselves. It includes the biological children of the victim and other children under her care. (Sec. 3 [h], R.A. No. 9262)

Acts of Violence Against Women and Their Children - The crime of violence against women and their children is committed through any of the following acts: 1. Causing physical harm to the woman or her child; 2. Threatening to cause the woman or her child physical harm; 3. Attempting to cause the woman or her child physical harm; 4. Placing the woman or her child in fear of imminent physical harm; 5. Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct: a. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; b. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support; c. Depriving or threatening to deprive the woman or her child of a legal right; d. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties; 6. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 7. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or

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threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; 8. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: a. Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman or her child; c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; d. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and e. Engaging in any form of harassment or violence; 9. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman’s child/children. (Sec. 5, R.A. No. 9262) Includes, but is not limited to, the following acts: 1. Physical Violence – refers to acts that include bodily or physical harm; (Sec. 3[a][A], R.A. No. 9262) 2. Sexual Violence – refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a. Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

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b. Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; and c. Prostituting the woman or child. (Sec. 3[a][B], R.A. No. 9262) 3. Psychological violence – refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. (Sec. 3[a][C], R.A. No. 9262) 4. Economic abuse – refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Art. 73 of the Family Code; a. Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; b. Destroying household property; and c. Controlling the victims’ own money or properties or solely controlling the conjugal money or properties. (Sec. 3[a][D], R.A. No. 9262) 5. Battery- refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. (Sec. 3[b], R.A. No. 9262) 6. Battered Woman Syndrome- refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in

battering relationships as a result of cumulative abuse. (Sec. 3[c], R.A. No. 9262) 7. Dating relationship- refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Sec. 3[e], R.A. No. 9262) 8. Sexual relation refers to a single sexual act which may or may not result in the bearing of a common child. (Sec. 3[f], R.A. No. 9262) 9. Safe place or shelter - refers to any home or institution maintained or managed by the DSWD or by any other agency or voluntary organization accredited by the DSWD for the purposes of this Act or any other suitable place the resident of which is willing temporarily to receive the victim. (Sec. 3[g], R.A. No. 9262) Construction R.A. 9262 shall be liberally construed to promote the protection and safety of victims of violence against women and their children. (Sec. 4, R.A. No. 9262) Prescriptive Period Acts falling under Nos. 1-6 shall prescribe in 20 years. Acts falling under Nos. 7-9 shall prescribe in 10 years. (Sec. 24, R.A. No. 9262) Prohibited Defense 1. Being under the influence of alcohol, any illicit drug, or any other mind-altering substance. (Sec. 27, R.A. No. 9262) 2. End of dating relationship prior to violence. It is immaterial whether the relationship had ceased for as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. (Dabalos vs. RTC, G.R. No. 193960, January 7, 2013)

Two limiting qualifications for any act or series of acts to be considered as a crime of violence against women through physical harm, namely: 1. it is committed against a woman or her child and the woman is the offender’s wife, former wife, or with whom he has or had sexual or dating relationship or with whom he has a common child; and 2. it results in or is likely to result in physical harm or suffering. (Id.)  Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman, for R.A. No. 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. Nowhere in the law can such limitation be inferred. Hence, applying the rule on statutory construction that when the law does not distinguish, neither should the courts, then, clearly, the punishable acts refer to all acts of violence against women with whom the offender has or had a sexual or dating relationship. (Id.)  The deprivation or denial of financial support to the child is considered an act of violence against women and children. It is also a continuing offense as long as financial support to the child is not given. (Van Wilsem vs. Van Wilsem, G.R. No. 193707, December 10, 2014)  While Sec. 3 of R.A. No. 9262 provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC. (Go – Tan vs. Sps. Tan, G.R. No. 168852, September 30, 2008)  The acts of violence against women and their children may be committed by an offender through another. (Id.)  A single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones.

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(Ang vs. Court of Appeals, G.R. No. 182835, April 20, 2010)

 Neither the physical injuries suffered by the victim nor the actual physical violence done by the perpetrator are essential elements of the acts of violence against women and their children. The only exception is when the physical violence done by the accused is alleged to have caused the mental and emotional suffering; in which case, such acts of physical violence must be proven. (Dinamling vs. People, G.R. No. 199522, June 22, 2015) Pregnancy or the presence of the woman’s child are aggravating circumstances for the crime of violence against women and their children. (Id.) Battered Woman Syndrome as a Defense Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of selfdefense under the RPC. The courts shall be assisted by expert psychiatrists/ psychologists, in determining the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime. (Sec. 26, R.A. No. 9262) The Battered woman syndrome is characterized by the so-called "cycle of violence” which has three phases: 1. Tension building phase - minor battering occurs. It could be verbal or slight physical abuse or another form of hostile behavior. 2. Acute battering incident - characterized by brutality, destructiveness and sometimes death. The battered woman deems this incident as unpredictable, yet also inevitable. 3. Tranquil period - the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. On the other hand, the battered woman also

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tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this "good, gentle and caring man" is the real person whom she loves. (People vs. Genosa, G.R. No. 135981, January 15, 2004) NOTE: In order to be classified as a battered woman, the couple must go through the battering cycle at least twice. (People vs. Genosa, G.R. No. 135981, January 15, 2004) K. ANTI-WIRE TAPPING ACT [REPUBLIC ACT 4200] AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES Punishable Acts 1. Tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a Dictaphone or dictograph or detectaphone or walkietalkie or tape recorder. (Sec. 1, par. 1, R.A. 4200) 2. Knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act. 3. Replay the said tape record, wire record or disc record for any other person or persons. 4. Communicate the contents of the said tape record, wire record or disc record, either verbally or in writing. 5. Furnish transcriptions of the said tape record. Wire record or disc record, whether complete or partial, to any other person. (Sec. 1, par. 2, R.A. No. 4200) 6. Knowingly does or aid, permit or cause to de done any of the acts declared unlawful in Sec. 1. (Sec. 2, R.A. No. 4200)

NOTE: The law prohibits recording or intercepting private communications. Therefore, recording of public communication or communication involving public interest such as proceedings before the lupon tagapamayapa inside the barangay hall is not a violation of the law. (Boado, Compact Reviewer in Criminal Law, 2016 ed., pp. 429)

Any recording, communication or spoken words obtained in violation of this provision is inadmissible in evidence in any judicial, quasijudicial or administrative hearing or investigation.

Penalties

NOTES:

Offender Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful. Public official, at the

time of commission of offense. Alien.

Penalty Imprisonment for not less than six months nor more than six years.

On top of the imprisonment, there is an accessory penalty of absolute disqualification from public office. Subject to deportation proceedings. (Sec. 2,

Exception to the exception: if the act was authorized by CA, the evidence is admissible in court. (Sec. 7, R.A. No. 9372)



R.A. No. 4200)

Persons Liable The offender is any person who can be a third party or a participant in the communication, as long as the other party did not consent to the recording of the conversation. (Sec. 1, R.A. No. 4200) Exception: When a peace officer is authorized by written order from the court or from the authorizing division of the Court of Appeals (CA) under RA 9372 or The Human Security Act. Under this law, communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism may be tracked down, tapped, or listened to, intercepted, or recorded by law enforcement officials with the use of any device, or with the use of any suitable ways and means for that purpose upon written order by the authorizing division of the CA.

The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Sec. 1. (Boado, Compact Reviewer in Criminal Law , 2016 ed., pp. 428) The law makes no distinction as to whether the party sought to be penalized is a party other than those involved in private communication. The statute’s intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier “any”. Thus, even a party to a communication who records his private conversation with another with-out the knowledge of the latter qualifies as a violator of R.A. 4200. In other words, there must be consent of all parties to any private communication or spoken word to tap any wire or cable or to use any device or arrangement to hear, intercept or record. (Ramirez vs. CA, G.R. No. 93833, September 28, 1995)

Effect of Court Order Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful, in cases involving the crimes of: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Treason Espionage Provoking war and disloyalty in case of war Piracy Mutiny on the high seas Rebellion Conspiracy and proposal to commit rebellion Inciting to rebellion Sedition Conspiracy to commit sedition Inciting to sedition

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12. Kidnapping 13. Violations of CA 616 (espionage and other offenses against national security) (Sec. 3, R.A. No. 4200) Inadmissibility in Evidence Any communication or spoken word, or the existence, contents, substance, purport, effect or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Sec. 4) L. BOUNCING CHECKS LAW [BATAS PAMBANSA (B.P.) NO. 22] AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES Check – is a negotiable instrument that serves as substitute for money and as a convenient form of payment in financial transactions and obligations. But the convenience afforded by checks that adversely affect confidence in our commercial and banking activities, and ultimately injure public interest. (Mitra vs. People, G.R. No. 191404, July 5, 2010) NOTES: • The gravamen of the offense punished by B.P. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the nonpayment of an obligation. (Lozano vs. Martinez, G.R. No. L-63419, December 18, 1986) • The law has made the mere act of issuing a bum check a malum prohibitum, an act proscribed by legislature for being deemed pernicious and inimical to public welfare. (People vs. Chua, G.R. No. 130632, September 28, 1999) DAIF Check – means drawn against insufficient funds. A check is DAIF when it is issued for an amount which is more than the funds available in a particular account. Unlike DAUD, it is

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punishable under Crime of Estafa and B.P. No. 22. Manager’s Check & Cashier’s Check – not covered under B.P. 22 because if its peculiar character and general use in the commercial world, it is as good as the money it represents and is therefore deemed as cash. (New Pacific Timber and Supply Company, Inc. vs. Seneres, G.R. No. L-41764, December 19, 1980) Punishable Acts A. Checks funds

drawn

without

sufficient

Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment (Sec. 1[1], B.P. 22). Elements: (DisCAVaNot) 1. A person makes or draws and issues any Check; 2. The check is made drawn or issued to apply on Account or for Value; 3. The person knows at the time of issue that he does Not have sufficient funds or credit for the payment of the check upon its presentment; and 4. The check is subsequently Dishonored for insufficiency of funds or credit; or would have been dishonored for the same reason if the drawer had not, without any valid reason, ordered the bank to stop payment. Can a person be liable for B.P. 22 for a dishonored check which is drawn against uncollected deposit? No. DAUD means that the account has sufficient funds on its face but not yet available to the drawer because the deposit has not yet been cleared. (Dy vs. People, G.R. No. 158312, November 14, 2008)

NOTE: To hold a person liable under B.P. 22, it is not enough to establish that a check issued was subsequently dishonored. It must be shown further that the person who issued the check knew at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. This element involves a state of mind which is difficult to establish. (Vergara vs. People, G.R. 160328, February 04, 2005) B. Failure to maintain sufficient funds Any person who, having sufficient funds in or credit with the drawee bank, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon. (Sec. 1[2], B.P. 22)

actually signed the check in behalf of such drawer shall be liable under this Act. (Sec. 1 [par. 3], B.P. 22) Evidence of knowledge of insufficient funds The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within 90 days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within 5 banking days after receiving notice that such check has not been paid by the drawee. (Sec. 2, B.P. 22) NOTES:

Elements: 1. A person has Sufficient funds or credit when he makes, issues or draws a check; 2. He fails to keep sufficient funds or to Maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon; and 3. The check is Dishonored by the drawee bank. (Sec. 1[2], B.P. 22) NOTES: ● There is no disputable presumption of knowledge of insufficiency of funds when there is no receipt of notice of dishonor. (Reyes, The Revised Penal Code: Book Two, 2017, p.865) ● The full payment of the amount appearing in the check within five banking days from notice of dishonor is a ‘complete defense.’ The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. (Lao vs. Court of Appeals, G.R. No. 119178, June 20, 1997) ● The law requires that the insufficiency of funds in or credit shall be explicitly stated in the dishonor hence, a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. (Domagsang vs. CA, G.R. No. 139292, December 5, 2000) ● Where the check is drawn by a corporation, company or entity, the person or persons who

• It is well-settled that violation of B.P. Blg. 22 cases is categorized as transitory or continuing crimes, which means that the acts material and essential thereto occur in one municipality or territory, while some occur in another. Stated differently, a person charged with a continuing or transitory crime may be validly tried in any municipality or territory where the offense was in part committed. A criminal complaint for violation of B.P. Blg. 22 may be filed and tried either at the place where the check was issued, drawn, delivered, or deposited. (Brodeth and Onal vs. People, G.R. No. 197849, November 19, 2017) • An essential element of a violation of B.P. 22 is the drawer’s knowledge that he has insufficient funds or credit with the drawee bank to cover his check. B.P. 22 creates the prima facie presumption that once the check is dishonored, the drawer of the check gains knowledge of the insufficiency. (Mitra vs. People, G.R. No. 191404, July 5, 2010) • The prima facie presumption does not apply when from the very beginning, drawer never hid the fact that he did not have the funds with which to put up the warranty deposit. (Magno vs. CA, G.R. No. 96132, June 26, 1992) • When no proof as to when notice of nonpayment was received by the drawer, then the presumption or prima facie evidence provided in Section 2 of B.P. 22 cannot arise, since there would simply be no way of reckoning the

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•

• •

•

crucial 5-day period. (Chua vs. People, G.R. No. 196853, July 13, 2015) Failure to make good the check within five banking days from receipt of notice of dishonor and demand for payment gives rise for the violation of B.P. 22. (Domagsang vs. CA, G.R. No. 139292, December 5, 2000) Prosecution under this B.P. 22 shall be without prejudice to any liability for violation of any provision of the RPC. (Sec. 5, B.P. 22) Mere act of issuing a worthless check whether as a deposit, as a guarantee or even as evidence of pre-existing debt is malum prohibitum. (Ricaforte vs. Jurado, G.R. No. 154438, September 5, 2007) An acquittal for violation of B.P. 22 based on reasonable doubt should not preclude the payment of the face value of the checks, plus legal interest. (Moster vs. People, G.R. No. 167461, February 19, 2008) What the law punishes is simply the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating thereto. However, accused should be exonerated for the check that was dishonored for being drawn against uncollected deposit. B.P. 22 speaks only of insufficiency of funds and does not treat of uncollected deposits. (Dy vs. People, G.R. No. 158312, November 14, 2008) For if a check were issued by a kidnap victim to a kidnapper for ransom, it would be absurd to hold the drawer liable under B.P. 22, if the check is dishonored and unpaid. That would go against public policy and common sense. (Idos vs. CA, G.R. No. 110782, September 25, 1998)

Defenses against B.P. 22 1. The check was issued as a guaranteed deposit 2. The required notice of dishonor wasn’t given 3. The dishonor was not due to insufficiency of funds 4. The check was presented beyond the 90- or 180-day period 5. Valid cause to stop payment as when the complainant was informed that the account was previously closed.

Rule of Preference Penalties

Imposition

The Supreme Court issued SC Administrative Circular No. 13-2001 which clarified the application of Administrative Circular No. 12-2000 concerning the penalty for violation of B.P. 22. SC Administrative Circular No. 13-2001 clarified that Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22. 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. (Supreme Court, Administrative Circular No. 13, 2001) Notice of Dishonor is an Indispensable Requirement In all prosecutions under B.P. 22, the introduction in evidence of any unpaid and dishonored check with the drawee’s refusal to pay stamped or written thereon, or attached thereto, shall be prima facie evidence of:

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1. The making or issuance of the check; 2. The due presentment to the drawee for payment and the dishonor thereof; and 3. The fact that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. (Sec. 3, [par. 1], B.P. 22) NOTE: The prosecution has to present in evidence only the unpaid and dishonored check with the drawee’s refusal to pay stamped or written thereon, or attached thereto. (Reyes, The Revised Penal Code: Book Two, 2017) Significant Periods under B.P. 22 (5-90180) 1. 5 banking days – the maker or owner must make arrangements to make good the value of the check to escape criminal liability for issuing check. (Sec. 5, B.P. 22); 2. 90 days – he must maintain sufficient funds within this period of time to destroy the prima facie presumption of knowledge of insufficiency of funds to back up the check (Sec. 1[2], B.P. 22); and 3. 180 days – failure of the payee to depositor encash the check within the 180-day period will make the check stale or valueless, hence, no criminal action may arise therefrom. (Boado, Criminal Law, 2018, p. 533) B.P. 22 VIS-À-VIS Estafa B.P. 22

Estafa

Malum prohibitum

Malum in se

Crime against public interest. Deceit not required. Punishes the making or drawing of any check that is subsequently dishonored, whether issued in payment of an obligation or to merely guarantee an obligation. It is the issuance of a check, not the nonpayment of obligation which is punished. Violated if check is issued in payment of a preexisting obligation Damage is not required

Crime against property. Deceit is an element. The act constituting the offense is postdating or issuing a check in payment of an obligation when the offender has no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check.

Drawer is given 5 banking days to make arrangements of payment after receipt of notice of dishonour.

Drawer is given 3 days to make arrangements for payment after receipt of notice of dishonour.

NOTES:  While a B.P. 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered “separate, distinct, and independent” from each other. Therefore, both cases can proceed to their final adjudication – both as to their criminal and civil aspects – subject to the prohibition on double recovery. Perforce, a ruling in a B.P. 22 case concerning the criminal and civil liabilities of the accused cannot be given any bearing whatsoever in the criminal and civil aspects of a related estafa case. (Rimando vs. Sps. Aldaba, G.R. No. 203583, Oct. 13, 2014)  The crimes of estafa and violation of B.P. 22 are different and distinct from each other. There is no identity of offenses involved, for which legal jeopardy in one case may be invoked in the other. The offenses charged in the information are perfectly distinct from each other in point of law, however nearly they may be connected in point of fact. (Rodriguez vs. Ponferrada, G.R. Nos. 155531-34, July 29, 2005) Prescription A violation of the offense of B.P. 22 prescribes in four years from the commission of the offense or, if the same be not known at the time, from the discovery thereof. (Sec 1, Act 3326) The filing of the complaint-affidavit before the Office of the City Prosecutor signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. 22. (Panaguiton, Jr. vs. DOJ, G.R. No. 167571, November 25, 2008)

Not violated if check is issued in payment of a pre-existing obligation Damage is required

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Jurisdiction The MTC has exclusive original jurisdiction in the prosecution of B.P. 22 cases. (A.M. No. 00-11-01SC, March 25, 2003) M. COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 [REPUBLIC ACT No. 9165, as amended by REPUBLIC ACT No. 10640] AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES Definition of Terms Administer – any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. (Sec. 3 [a], R.A. No. 9165) Dangerous Drugs – include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances. (Sec. 3 [j], R.A. No. 9165) Deliver – any act of “knowingly” passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. (Sec. 3 [k], R.A. No. 9165) Den, Dive, or Resort – place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form Drug Syndicate – any organized group of two or more persons forming or joining together with the intention of committing any offense prescribed under this Act. (Sec. 3 [o], R.A. No. 9165)

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Financier – any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this Act. (Sec. 3 [q], R.A. No. 9165) Illegal Trafficking – the illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation, and possession of any dangerous drug and/or controlled precursor and essential chemical. (Sec. 3 [r], R.A. No. 9165) Protector/Coddler – any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. (Sec. 3 [ee], R.A. No. 9165) Pusher – any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transactions, in violation of this Act. (Sec. 3 [ff], R.A. No. 9165) Sell – any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. (Sec. 3 [ii], R.A. No. 9165) Punishable Acts 1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 4, R.A. No. 9165); 2. Selling, trading, administrating, dispensing, delivering, giving away to another, distributing dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or acting as broker in any of such transactions (Sec. 5, R.A. No. 9165); 3. Maintenance of a Den, Dive or Resort (Sec. 6, R.A. No. 9165); 4. Employment in and visiting a den, dive or resort (Sec. 7, R.A. No. 9165);

5. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 8, R.A. No. 9165); 6. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals (Sec. 9, R.A. No. 9165); 7. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 10, R.A. No. 9165); 8. Possession of Dangerous Drugs (Sec. 11, R.A. No. 9165); 9. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs (Sec. 12 [par. 1], R.A. No. 9165); 10. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings (Sec. 13, R.A. No. 9165); 11. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings (Sec. 14, R.A. No. 9165); 12. Use of Dangerous Drugs (Sec. 15, R.A. No. 9165); 13. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof (Sec. 16 [par. 1], R.A. No. 9165);

14.

15. 16. 17.

The land or portions thereof and/or greenhouses on which any of said plants is cultivated or cultured shall be confiscated and escheated in favor of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part. (Sec. 16 [par. 2], R.A. No. 9165) If the land involved is part of the public domain, the maximum penalty provided for under this Section shall be imposed upon the offender. (Sec. 16 [par. 2], R.A. No. 9165) Violates or Fails to comply with the Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 17, R.A. No. 9165); Unnecessary Prescription of Dangerous Drugs (Sec. 18, R.A. No. 9165); Unlawful Prescription of Dangerous Drugs (Sec. 19, R.A. No. 9165); Acts of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources

of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed (Sec. 27, R.A. No. 9165); 18. Planting of any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity (Sec. 29, R.A. No. 9165); 19. Any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation (Sec. 30 [par. 1], R.A. No. 9165); and 20. Partner, President, Director, Manager, Trustee, Estate Administrator, or Officer who knowingly authorizes, tolerates or consents to the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in the importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of dangerous drugs, or chemical diversion, if such vehicle, vessel, aircraft, equipment or other instrument is owned by or under the control or supervision of the partnership, corporation, association or juridical entity to which they are affiliated. (Sec. 30 [par. 2], R.A. No. 9165) Section 5: Illegal sale of dangerous drugs and/or controlled precursors and essential Elements a. The identity of the buyer and the seller, the object and the consideration of the sale; and b. The delivery of the thing sold and the payment therefor. (People vs. Villahermosa, G.R. No. 186465, June 2, 2011; People vs. Guzon, G.R. No. 199901, October 9, 2013; People vs. Dasigan, G.R. No. 206229, February 4, 2015) Prosecution In order to sustain a conviction for selling prohibited drugs, the element of sale must be unequivocally established. What the law proscribes is not only the act of selling but also the act of delivering. What is important is that the poseur–buyer received the drugs from the

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accused. (People vs. Ponferada, G.R. No. 101004, March 17, 1993) Burden of Proof The State bears the burden not only of proving these elements of the offense under R.A. No. 9165, but also of proving the corpus delicti. The dangerous drug is itself the very CORPUS DELICTI of the violation of the law. Compliance with chain custody rule is crucial. (People vs. Guzon, G.R. No. 199901, October 9, 2013) NOTE: The essential element of the charge of illegal transportation of dangerous drugs is the movement of the dangerous drug from one place to another. Possession of prohibited drugs, coupled with the fact that the possessor is not a user thereof, indicates the intention to sell, distribute or deliver the prohibited stuff. A person may be found guilty of illegal delivery and transportation of marijuana. (People vs. Asislo, G.R. No. 206224, January 18, 2016) Act of Distribution In the distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drugs to others is in itself a punishable offense (People vs. Akmad, G.R. No. 195194, November 25, 2015). NOTES: ● The prosecution must prove that the buyer and seller were identified. (People vs. Edgardo Femin, G.R. No. 179344, August 3, 2011) ● The absence of actual or completed payment is irrelevant, for the law itself penalizes the very act of delivery of a dangerous drug, regardless of any consideration. Payment of consideration is likewise immaterial in the distribution of illegal drugs. (People vs. Yang G.R. 148077, February 16, 2004) Penalty The penalty for the unauthorized sale of shabu, regardless of its quantity and purity, is life imprisonment to death and a fine ranging from P500,000.00 to P10 million. However, with the enactment of R.A. No. 9346, only life imprisonment and fine shall be imposed. (People vs. Opiana, G.R. No. 200797, January 12, 2015)

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BUY-BUST OPERATION is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of the offense. Entrapment has received judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards. (People vs. Basilgo, G.R. No. 107327, August 5, 1994) NOTES: ● A buy-bust operation is a form of entrapment which had repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law; in every prosecution for illegal sale of prohibited or regulated drugs. (People vs. Suson and Fortich, G.R. No. 152848, July 12, 2006) ● Moreover, in a buy-bust operation, the violator is caught in flagrante delicto and the police officers conducting the same are not only authorized but also duty-bound to apprehend the violator and consequently search him for anything that may have been part of or used in the commission of the crime. (People vs. Cruz, G.R. No. 187047, June 15, 2011) ● The delivery of the contraband to the poseurbuyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused. The presentation in court of the corpus delicti - the body or substance of the crime - establishes the fact that a crime has actually been committed. (People vs. Edgardo Fermin, G.R. No. 179344, August 3, 2011) Consummation The delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the buy-bust transaction. (People vs. Dela Cruz, G.R. No. 193670, December 3, 2014) Principles in Buy-Bust Operation 1. The presentation in evidence of the ‘buy-bust’ money is not indispensable for the conviction of an accused provided that the sale of marijuana is adequately proven in the prosecution. (People vs. Pascual, G.R. No. 88282, May 6, 1992) 2. It is not surprising for a police officer to use his own money during the buy-bust

5. 6.

operations–such use of money does not adversely affect the case against the accused. There is no requirement that the police must apply fluorescent powder to the buy-bust money to prove the commission of the offense; there is no law or rule of evidence requiring the use of fluorescent powder or the taking of the culprit’s fingerprints from the bag containing the shabu. (People vs. Saidmin Macabalang, G.R. No. 168694, November 27, 2006) What is material is the delivery of the prohibited drug to the buyer in this case, was sufficiently proved by the prosecution through the testimony of the poseur-buyer and the presentation of the articles itself before the court. Besides, the money was already marked by the poseur-buyer with his initials. Neither is fingerprint a requirement in buybust operations. (People vs. Saidmin Macabalang, G.R. No. 168694, November 27, 2006) Mission order, court order, and surveillance progress report are not required in buy-bust operation. (People vs. Ong Co, G.R. No. 112046, July 11, 1995) There is no fixed procedure for conducting buy-bust operations. (People vs. Cruda, G.R. No. 98251, August 4, 1992) In a buy-bust operation, the important aspect of police operatives in their modus operandi is not the hearing but seeing the accused selling the prohibited drugs. (People vs. Fernandez, G.R. No. 90019, December 8, 1993)

Section 11: Possession of dangerous drugs Elements a) The accused was in possession of an item or an object identified to be a prohibited or regulated drug; b) Such possession is not authorized by law; and c) The accused was freely and consciously aware of being in possession of the drug (People vs. Dela Cruz, G.R. No. 205821, October 1, 2014; People vs. Dela Peña, G.R. No. 207635, February 18, 2015). NOTE: In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. (People vs. Dela Cruz, G.R. No. 205821, October 1, 2014)

Possession, under the law, includes not only actual possession, but also constructive possession. Actual vs. Constructive Possession Actual Possession

Constructive Possession

The prosecution must prove that the accused had the intent to possess (animus possidendi) the drugs. Actual possession Constructive exists when the drug is possession exists when in the immediate the drug is under the physical possession or dominion and control of control of the accused. the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary.

(People vs. Trinidad, G.R. No. 199898, September 3, 2014)



The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. (People vs. Tira, G.R. No. 139615, May 28, 2004)

NOTES: ●

Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession. (People vs. Pancho, G.R. No. 206910, October 14, 2015)

●

Possession of different kinds of dangerous drugs (e.g. shabu and marijuana, in one occasion), the accused may only be convicted of a single offense of possession of dangerous drug. If convicted, the higher penalty shall be imposed. (David vs. People, G.R. No. 181861, October 17, 2011)

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Section 12: Possession of equipment, instrument, apparatus, and other paraphernalia of dangerous drugs Elements a) Possession or control by the accused of any equipment, apparatus or other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body; and b) Such possession is not authorized by law. 

It is necessary to prove that the items seized were intended to be used as drug paraphernalia. (Derilo vs. People, G.R. No. 190466, April 18, 2016)

Presumption The possession of such equipment, instrument, apparatus, and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Sec. 15 of this Act. (Sec. 12 [par. 2], R.A. No. 9165) Section 14: Possession of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs during parties, social gatherings or meetings Elements 1. Possession by the accused of an item or object identified to be a prohibited or dangerous drug; 2. Such possession is not authorized by law; 3. Free and conscious possession of the drug by the accused; and 4. The accused possessed the prohibited or dangerous drug during a social gathering or meeting, or in the company of at least two persons. (People vs. Pavia, G.R. No. 202687, January 14, 2015) Section 15: Use of dangerous drugs Elements 1. A person is apprehended or arrested;

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2. Such person is found to be positive for use of any dangerous drug; 3. After a confirmatory test; NOTE: Sec. 15 only covers persons arrested or apprehended for unlawful acts under Art. II of R.A. 9165 and not any crime. (Dela Cruz vs. People, G.R. No. 200748, July 23, 2014) Exception Use of Dangerous Drugs shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Sec. 11 of this Act, in which case the provisions stated therein shall apply. (Sec. 15, R.A. No. 9165); NOTE: A sample taken from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise. (People vs. Tang Wai Lan, G.R. Nos. 118736-37, July 23, 1997) Who are Liable? 1. Any person who commits any of the prohibited acts herein stated; 2. Financier; 3. Protector/Coddler; and 4. Pusher. A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by and offender, and the application of the penalty provided for in the revised Penal Code shall be applicable. (Sec. 25) Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment The Philippine Drug Enforcement Agency shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

1. The apprehending team shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof; a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. (Sec. 21, R.A. No. 9165 as amended by R.A. No. 10640) 2. Within 24 hours upon confiscation/seizure of the items, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; 3. A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s:

Provided, that when the volume of dangerous

drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory:

Provided, however, that a final certification shall be issued immediately upon completion of the said examination and certification;

4. After the filing of the criminal case, the Court shall, within 72 hours, conduct an ocular inspection of the confiscated, seized and/or surrendered items, and through the PDEA shall within 24 hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. Item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes provided that a representative sample, duly weighed and recorded is retained; 5. The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which shall be submitted to the court; 6. The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within 72 hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; and 7. After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within 24 hours from receipt of the same. (Sec. 21, R.A. No. 9165)

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Chain of Custody The duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory for safekeeping to presentation in court for destruction, the record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. (Dangerous Drugs Board Resolution No. 1, Series of 2002, Implementing R.A. No. 9165, Sec. 1[b]) All evidence collected at the crime scene should be tagged. If the item cannot be tagged then, it should be labeled or marked. Four links that should be established in the chain of custody of the confiscated item: 1. The seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; 2. The turnover of the illegal drug seized by the apprehending officer to the investigating officer; 3. The turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and 4. The turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (People vs. Dela Cruz, G.R. No. 205821, October 1, 2014)

NOTES: ●

●

Marking Consistency with the "chain of custody" rule requires that the marking of the seized items—to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done: 1. In the presence of the apprehended violator; and 2. Immediately upon confiscation. (People vs. Beran, G.R. No. 203028, January 15, 2014)

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●

The marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value. (Derilo vs. People, G.R. No. 190466, April 18, 2016) Non-compliance with the procedure outlined in Sec. 21(a) of R.A. No. 9165 shall not render void and invalid such seizures of and custody over said items, for as long the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. (People vs. Lopez, G.R. No. 181747, September 29, 2008) However, in case of failure to comply with the requirements of Sec. 21 in a manner that compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant, his acquittal is in order. (Bondad vs. People, G.R. No. 173804, December 10, 2008) Failure to establish the identity of the corpus delicti warrants the dismissal of a charge for violation of the law. (People vs. Morales, G.R. No. 172873, March 19, 2010) In seizures covered by search warrants, the physical inventory and photograph of the exhibits must be conducted in the place of the search warrant. In warrantless seizures such as a buy-bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. (People vs. Beran, G.R. No. 203028, January 15, 2014) Crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband is immediately marked because succeeding handlers of the specimens will use the markings as reference. (People vs. Guzon, G.R. No. 199901, October 9, 2013)

●

The non-presentation of the informant or the marked money is not required, as long as the integrity of the seized items was preserved. (People vs. Gonzaga, G.R. No. 184952, October 11, 2010) What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. (People vs. Pancho, G.R. No. 206910, October 14, 2015) The integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will or proof that the evidence has been tampered with. (People vs. Bis, G.R. No. 191360, March 10, 2014) The prosecution’s evidence must include testimony about every link in the chain. It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused. (Derilo vs. People, G.R. No. 190466, April 18, 2016) The absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation as there is no textbook method of conducting the same. (People vs. Robelo, G.R. No. 184181, November 26, 2012)

OTHER PROVISIONS UNDER RA 9165 Non-Applicability of Probation Law (P.D. No. 968) – Any person convicted of drug trafficking or pushing cannot avail of the privilege granted by the Probation Law. (Sec. 24)

same penalty prescribed for the commission of the same as provided under this Act: a. Importation of any dangerous drug and/or controlled precursor and essential chemical; b. Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; c. Maintenance of a den, dive or resort where any dangerous drug is used in any form; d. Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and e. Cultivation or culture of plants which are sources of dangerous drugs. (Sec. 26) Drug Dependent Submission Program

under

Voluntary

A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Sec. 15 (subject to conditions). (Sec. 55) Jurisdiction The Supreme Court shall designate special courts from among existing Regional Trial Courts in each region to exclusively try and hear cases involving violations of this Act. (Sec. 90)

Sec. 23 of R.A. 9165 (Plea-Bargaining Provision) was declared unconstitutional for being contrary to the rule-making authority of the Supreme Court. (Estipona vs. Hon. Lobrigo, G.R. No. 226679, August 15, 2017)

N. CYBERCRIME PREVENTION ACT OF 2012 [REPUBLIC ACT NO. 10175] AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

Qualifying Circumstance

Definition of Terms:

A positive finding for the USE of dangerous drug shall be qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the RPC shall be applicable. (Sec. 25)

Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network. (Sec. 3 [a], R.A. No. 10175)

Attempt or Conspiracy

Alteration refers to the modification or change, in form or substance, of an existing computer data or program. (Sec. 3 [b], R.A. No. 10175)

Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the

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Communication refers to the transmission of information through ICT media, including voice, video and other forms of data. (Sec. 3 [c], R.A. No. 10175) Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet. (Section 3 [d], R.A. No. 10175) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online. (Sec. 3 [e], R.A. No. 10175) Computer program refers to a set of instructions executed by the computer to achieve intended results. (Sec. 3 [f], R.A. No. 10175) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. (Sec. 3 [g], R.A. No. 10175) Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law. (Sec. 3 [h], R.A. No. 10175) Cyber refers to a computer or a computer network, the electronic medium in which online

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communication takes place. (Sec. 3 [i], R.A. No. 10175) Critical infrastructure refers to the computer systems, and/or networks, whether physical or virtual, and/or the computer programs, computer data and/or traffic data so vital to this country that the incapacity or destruction of or interference with such system and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters. (Sec. 3 [j], R.A. No. 10175) Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets. (Sec. 3 [k], R.A. No. 10175) Database refers to a representation of information, knowledge, facts, concepts, or instructions which are being prepared, processed or stored or have been prepared, processed or stored in a formalized manner and which are intended for use in a computer system. (Sec. 3 [l], R.A. No. 10175) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring. (Sec. 3 [m], R.A. No. 10175) Service provider – refers to: 1. Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and 2. Any other entity that processes or stores computer data on behalf of such communication service or users of such service. (Sec. 3 [n], R.A. No. 10175) Subscriber’s information – refers to any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established:

1. The type of communication service used, the technical provisions taken thereto and the period of service; 2. The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and 3. Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. (Sec. 3 [o], R.A. No. 10175) Traffic data or non-content data – refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service. (Sec. 3 [p], R.A. No. 10175) Punishable Acts: Cybercrime Offenses – The following acts constitute the offense of cybercrime punishable under this Act: A) Offenses against the confidentiality, integrity and availability of computer data and systems (IDSCIM) 1. Illegal Access – The access to the whole or any part of a computer system without right. 2. Illegal Interception – The interception made by technical means without right of any nonpublic transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data. 3. Data Interference – The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses. 4. System Interference – The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data

message, without right or authority, including the introduction or transmission of viruses. 5. Misuse of Devices i. The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of: a) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or b) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act. ii. The possession of an item referred to in paragraphs 5(i)(a) or (b) above with intent to use said devices for the purpose of committing any of the offenses under this section. 6. Cyber-squatting – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is: i. Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; ii. Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and iii. Acquired without right or with intellectual property interests in it. (Sec. 4[a], R.A. No. 10175) B) Computer-related Offenses (FFI) 1. Computer-related Forgery i. The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or ii. The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design. 2. Computer-related Fraud - The unauthorized input, alteration, or deletion of computer data

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or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, that if no damage has yet been caused, the penalty imposable shall be one (1) degree lower. 3. Computer-related Identity Theft - The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, that if no damage has yet been caused, the penalty imposable shall be one degree lower. (Sec. 4[b], R.A. No. 10175) C) Content-related Offenses (CCUL) 1. Cybersex – The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. NOTE: The element of ‘engaging in a business’ is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam. (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014) 2. Child Pornography – The unlawful or prohibited acts defined and punishable by R.A. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be one degree higher than that provided for in R.A. 9775. NOTE: Child pornography committed online as to which, charging the offender under both Sec. 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription, shall be void and unconstitutional for it is a violation against the proscription against double jeopardy. (Id.)

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3. Unsolicited Commercial–Communications – The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited. NOTE: This provision Sec. 4(c)3 was declared void and unconstitutional. To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression. (Id.). 4. Libel – The unlawful or prohibited acts of libel as defined in Art. 355 of the RPC, as amended, committed through a computer system or any other similar means which may be devised in the future. (Sec. 4[c], R.A. No. 10175) NOTES: ●

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Sec. 4(c)(4) on Online Libel that penalizes online libel as valid and constitutional with respect to the original author of the post; but void and unconstitutional with respect to others who simply receive the post and react to it. (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014) Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Art. 353, in relation to Art. 355 of the penal code, already punishes it. In effect, Sec. 4(c)[4] above merely affirms that online defamation constitutes ‘similar means’ for committing libel. (Id.) An offender cannot be charged under both Sec 4(c)4 of the Cybercrime Prevention Act and Art. 353 of the RPC. (Id.) These limitations imposed on libel actions filed by private persons are hardly onerous, especially as they still allow such persons to file the civil or criminal complaint in their respective places of residence, in which situation there is no need to embark on a

quest to determine with precision where the libelous matter was printed and first published. (Bonifacio vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5, 2010) Other Offenses: 1. Aiding or Abetting in the Commission of Cybercrime – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. 2. Attempt in the Commission of Cybercrime Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable. (Sec. 5, R.A. No. 10175) NOTES: ●

●

Sec. 5 is valid and constitutional only in relation to Sec. 4(a)(1) on Illegal Access, Sec. 4(a)(2) on Illegal Interception, Sec. 4(a)(3) on Data Interference, Sec. 4(a)(4) on System Interference, Sec. 4(a)(5) on Misuse of Devices, Sec. 4(a)(6) on Cyber-squatting, Sec. 4(b)(1) on Computer-related Forgery, Sec. 4(b)(2) on Computer-related Fraud, Sec. 4(b)(3) on Computer-related Identity Theft, and Sec. 4(c)(1) on Cybersex. Sec. 5 is void and unconstitutional with respect to Secs. 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on Online Libel. (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014)

Aggravating Circumstance applicable to all Crimes under RPC and Special Penal Laws If committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. (Sec. 6, R.A. 10175) Restricting or Blocking Access to Computer Data When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ

shall issue an order to restrict or block access to such computer data. (Sec. 19, R.A. No. 10175) NOTE: The following provisions were challenged and was declared constitutional or unconstitutional as the case may be: (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014) PROVISION Sec. 4(a)(1) on Illegal Access Sec. 4(a)(3) on Data Interference Sec. 4(a)(6) on Cybersquatting Sec. 4(b)(3) on Identity Theft Sec. 4(c)(1) on Cybersex Sec. 4(c)(2) on Child Pornography Sec. 4(c)(3) on Unsolicited Commercial Communications Sec. 4(c)(4) on Libel

Sec. 5 on Aiding or Abetting and Attempt in Commission of Cybercrimes

JUDGMENT Constitutional Constitutional Constitutional Constitutional Constitutional Constitutional Unconstitutional Constitutional with respect to the original author of the post; but Void and Unconstitutional with respect to others who simply receive the post and react to it. Constitutional only in relation to Sec. 4(a)(1) on Illegal Access, Sec. 4(a)(2) on Illegal Interception, Sec. 4(a)(3) on Data Interference, Sec. 4(a)(4) on System Interference, Sec. 4(a)(5) on Misuse of Devices, Sec. 4(a)(6) on Cyber-squatting, Sec. 4(b)(1) on Computerrelated Forgery, Sec. 4(b)(2) on Computerrelated Fraud, Sec. 4(b)(3) on Computerrelated Identity Theft, and Sec. 4(c)(1) on Cybersex; but Void and Unconstitutional with respect to Sec. 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial

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Communications, and 4(c)(4) on online Libel Sec. 6 on the Penalty of One Degree Higher Sec. 7 on the Prosecution under both RPC and R.A. 10175

Sec. 8 on Penalties Sec. 12 on Real-Time Collection of Traffic Data Sec. 13 on Preservation of Computer Data Sec. 14 on Disclosure of Computer Data Sec. 15 on Search, Seizure, and Examination of Computer Data Sec. 17 on Destruction of Computer Data Sec. 19 on Restricting or Blocking Access to Computer Data Sec. 20 on Obstruction of Justice Sec. 24 on Cybercrime Investigation and Coordinating Center (CICC) Sec. 26 on CICC’s Powers and Functions

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Constitutional SC resolves to leave the determination of the correct application of Sec. 7 to actual cases, with the exception of: (1) Online libel as to which, charging the offender under both Sec.4(c)(4) of R.A. 10175 and Art. 353 of RPC constitutes violation of the proscription against double jeopardy; and, (2) Child pornography committed online as to which, charging the offender under both Sec.4(c)(2) of R.A. 10175 and R.A. 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription, and, in respect to these, is void and unconstitutional Constitutional Unconstitutional Constitutional Constitutional Constitutional

Constitutional Unconstitutional Constitutional Constitutional

Constitutional

Corporate Liability When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; (b) an authority to take decisions on behalf of the juridical person:

Provided, That the act committed falls within the

scope of such authority; or (c) an authority to exercise control within the juridical person, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Sec. 7 up to a maximum of PhP10,000,000.00. If the commission of any of the punishable acts herein defined was made possible due to the lack of supervision or control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person by a natural person acting under its authority, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Sec. 7 up to a maximum of PhP5,000,000.00. The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense. (Sec. 9, R.A. No. 10175) Implementation The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act. (Sec. 10, R.A. No. 10175) NOTES: ●

To ensure that the technical nature of cybercrime and its prevention is given focus and considering the procedures involved for international cooperation, law enforcement authorities specifically the computer or technology crime divisions or units responsible for the investigation of cybercrimes are

required to submit timely and regular reports including pre-operation, post-operation and investigation results and such other documents as may be required to the Department of Justice (DOJ) for review and monitoring. (Sec. 10, R.A. No. 10175) ●

Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties. Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: a) To secure a computer system or a computer data storage medium; b) To make and retain a copy of those computer data secured; c) To maintain the integrity of the relevant stored computer data; d) To conduct forensic analysis or examination of the computer data storage medium; and e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network. The law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

NOTE: Failure to comply with Secs. 10 to 20 hereof specifically the orders from law enforcement authorities shall be punished as a violation of PD 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities. (Sec. 20, R.A. No. 10175) Jurisdiction The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines. There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases tribunal. (Sec. 21, R.A. No. 10175) O. NEW ANTI-CARNAPPING ACT OF 2016 [REPUBLIC ACT NO. 10883] NEW ANTI-CARNAPPING ACT OF 2016 Repealing Republic Act (R.A.) No. 6539 AN ACT PREVENTING AND PENALIZING CARNAPPING Definition of Terms:

Exclusionary Rule

Motor vehicle refers to any vehicle propelled by any power other than muscular power using the public highways, except road rollers, trolley cars, street sweepers, sprinklers, lawn mowers, bulldozers, graders, forklifts, amphibian trucks, and cranes if not used on public highways; vehicles which run only on rails or tracks; and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes (Sec. 2e, R.A. No. 10883).

Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal. (Sec. 18, R.A. No. 10175)

NOTE: Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as a separate motor vehicle with no power rating.

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Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court. (Sec. 15, R.A. No. 10175)

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Defacing or tampering with a serial number refers to the altering, changing, erasing, replacing or scratching of the original factory inscribed serial number on the motor vehicle engine, engine block or chassis of any motor vehicle. (Sec. 2b, R.A. No. 10883) NOTE: Whenever any motor vehicle is found to have a serial number on its engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicle imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered serial number. (Ibid.) Dismantling refers to the tearing apart, pieceby-piece or part-by-part, of a motor vehicle. (Sec. 2c, R.A. No. 10883) Identity transfer refers to the act of transferring the engine number, chassis number, body tag number, plate number, and any other identifying marks of a motor vehicle declared as “total wreck" or is beyond economic repair by concerned car insurance companies and/or law enforcement agencies after its involvement in a vehicular accident or other incident and registers the same into another factory-made body or vehicle unit, of the same classification, type, make or model. (Sec. 2d, R.A. 10883) Overhauling refers to the cleaning or repairing of the whole engine of a motor vehicle by separating the motor engine and the parts from the body of the motor vehicle. (Sec. 2f, R.A. No. 10883) Repainting refers to the act of changing the color of a motor vehicle by means of painting. (Sec. 2g, R.A. No. 10883) Remodeling refers to the introduction of some changes in the shape or form of the body of the motor vehicle. (Sec. 2h, R.A. No. 10883) Second hand spare parts refer to the parts taken from a carnapped vehicle used in assembling another vehicle. (Sec. 2i, R.A. No. 10883) Total wreck refers to the state or status of a motor vehicle after a vehicular accident or other incident, so that it is rendered in operational and beyond economic repair due to the extent of

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damage in its body, chassis and engine. (Sec. 2j, R.A. No. 10883) Unlawful transfer or use of vehicle plates refers to the use or transfer of a vehicle plate issued by the LTO to a certain vehicle to another vehicle. It presumed illegally transferred when the motor vehicle plate does not correspond with that as appearing to which it was issued. (Sec. 2k, R.A. No. 10883) Punishable Acts: A. Carnapping – is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. (Sec. 3 [par.1], R.A. No. 10883) Elements: 1. That there is an Actual taking of the vehicle; Note: The unlawful taking is deemed complete the moment the offender gains possession of the thing, even if he had no opportunity to dispose the same. (People vs. Gutierrez, G.R. No. 100699, July 5, 1996) 2. That the vehicle belongs to a person Other than the offender himself; 3. That the taking is without the Consent of the owner thereof; or that the taking was committed by means of Violence against or Intimidation of persons, or by using Force upon things; and 4. That the offender intends to Gain from the taking of the vehicle. (People vs. Lagat, G.R. No. 187044, September 14, 2011) Penalty: Imprisonment for not less than 20 years and one day but not more than 30 years. The penalty for carnapping may increase if committed: 1. With violence or intimidation of persons or force upon things. Penalty: Imprisonment for not less than 30 years and one day but not more than 40 years; or 2. When the owner or driver or occupant of carnapped motor vehicle is killed or raped in the commission of carnapping.

Penalty: Life imprisonment. (Sec. 3 [2], R.A. 10883) NOTE: The accused shall be denied bail when evidence of guilt is strong in the following instances: 1. That the crime of carnapping is committed by criminal groups, gangs, or syndicates; 2. By means of violence or intimidation of any person or persons or forced upon things; or 3. When the owner, driver, passenger, or occupant of the carnapped vehicle is killed or raped in the course of carnapping. (Sec. 3 [par. 3], R.A. No. 10883) B. Concealment of Carnapping – any person who conceals carnapping shall be punished with imprisonment of six years up to 12 years and a fine equal to the amount of the inquisition cost of the motor vehicle, motor vehicle engine, or any other part involved in the violation; provided, that if the violator is a juridical person, the penalty herein provided shall be imposed on its president, secretary, and/or members of the board of directors or any of its officers and employees who may have directly participated in the violation. (Sec. 4, [par. 1], R.A. No. 10883) NOTE: Any public official or employee who directly commits the unlawful acts defined in this Act or is guilty of gross negligence of duty or connives with or permits the commission of any of the said unlawful act shall, in addition to the penalty prescribed, be dismissed from the service, and his benefits forfeited, and shall be permanently disqualified from holding public office. (Sec. 4 [par. 2], R.A. No. 10883)

economic repair by concerned insurance company, and/or law enforcement agencies, due to its involvement in a vehicular accident or for some other causes. The LTO shall cancel the registration of total wreck vehicle as reported by PNP and/or as declared by Insurance Commission. (Sec. 15, R.A. No. 10883) E. Transfer of Vehicle Plate – It shall be unlawful for any person, office, or entity to transfer or use a vehicle plate from one vehicle to another without securing the proper authority from LTO. (Sec. 16, R.A. No. 10883) F. Sale of Second-Hand Spare Parts – It shall be unlawful for any person, office, or entity to buy and/or sell any second hand spare parts taken from a carnapped vehicle. (Sec. 17, R.A. No. 10883) P. Special Protection of Children Against Abuse, Exploitation, and Discrimination Act REPUBLIC ACT No. 7610, as amended by R.A. No. 7658 and R.A. No. 9231 AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES (Anti-Child Abuse Law) Definition of Terms: Children

C. Defacing or Tampering with Serial Numbers of Motor Vehicle Engines, Engine Blocks, and Chassis – It shall be unlawful for any person to deface or otherwise tamper with the original or registered serial number of motor vehicle engines, engine blocks, and chassis. (Sec. 14, R.A. No. 10883)

1. Person below 18 years of age; or 2. Those over 18 but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. (Sec. 3[a], R.A. No. 7610, as amended)

D. Identity Transfer – It shall be unlawful for any person, office, or entity to cause and/or allow the sale, registration, and/or transfer into another name, the chassis number, engine number, and plate number of a motor vehicle declared as “total wreck” or beyond

The maltreatment, whether habitual or not, of the child which includes any of the following:

Child abuse

1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

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2. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; 3. Unreasonable deprivation of his basic needs for survival, such as food and shelter; or 4. Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. (Sec. 3[b], R.A. No. 7610, as amended)

Child Prostitution and Other Sexual Abuse

NOTE: When the laying of hands was done at the spur of the moment and in anger, the loss of selfcontrol negates the specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human being that was essential in the third act of child abuse. (Bongalon vs. People, G.R. No. 169533, March 20, 2013)

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:

Comparison with Art. 366, RPC Acts of lasciviousness is punished under R.A. No. 7610 when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse. Circumstances which gravely threaten or endanger the survival and normal development of children – include, but are not limited to, the following: 1. 2. 3.

5. 6.

Being in a community where there is armed conflict or being affected by armed conflictrelated activities; Working under conditions hazardous to life, safety and normal which unduly interfere with their normal development; Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or basic services needed for a good quality of life; Being a member of an indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life; Being a victim of a man-made or natural disaster or calamity; or Circumstances analogous to those above stated which endanger the life, safety or normal development of children. (Sec. 3[c], R.A. 7610, as amended)

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Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. Persons liable:

(i) Acting as a procurer of a child prostitute; (ii) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (iii) Taking advantage of influence or relationship to procure a child as prostitute; (iv) Threatening or using violence towards a child to engage him as a prostitute; or (v) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (Sec. 5 [a], R.A. No. 7610, as amended) Non-applicability of Sweetheart Theory In the case of People vs. Udang (ibid.), the sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations. For purposes of sexual intercourse and lascivious conduct in child abuse cases under R.A. No. 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is under 12 years of age, the perpetrators shall be prosecuted under Art. 335(3), for rape and Art. 336 of the RPC, for

rape or lascivious conduct, as the case may be. (Sec. 5 [b], R.A. No. 7610, as amended) NOTE: Rape cannot be complexed with a violation of Sec. 5(b) of R.A. No. 7610. (People vs. Dahilig, G.R. No. 187083, June 13, 2011) (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Sec. 5 [c], R.A. No. 7610, as amended)

(b)

(c)

Elements: 1. 2. 3.

The accused commits the act of sexual intercourse or lascivious conduct; The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and The child, whether male or female, is below 18 years of age. (Imbo vs. People, G.R. No. 197712, April 20, 2015)

NOTE: Consent is immaterial in cases involving a violation of Sec. 5, Art. III of R.A. 7610, Thus, the sweetheart defense cannot be validly raised. A child cannot give consent to a contract under our civil laws. The child is not capable of fully understanding or knowing the nature or import of her actions. (Caballo vs. People, G.R. No. 198732, June 10, 2013) (d) Penalty: Reclusion temporal in its medium period to reclusion perpetua.(Sec. 5, R.A. No. 7610, as amended) Other Acts of Neglect, Abuse, Cruelty, or Exploitation and Other Conditions Prejudicial to the Child’s Development Persons liable: (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Art. 59 of

(d)

(e)

Presidential Decree No. 603, as amended, but not covered by the RPC, as amended; Any person who shall keep or have in his company a minor, 12 years or under or who in 10 years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places; Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding; Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, it should result in the loss of parental authority over the minor; Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described; and Any person who shall use, coerce, force or intimidate a street child or any other child to: (1) Beg or use begging as a means of living; (2) Act as conduit or middlemen in drug trafficking or pushing; or (3) Conduct any illegal activities.

The victim of the acts committed under this section shall be entrusted to the care of the DSWD. (Sec. 10, R.A. No. 7610) A child is deemed exploited in prostitution or subjected to other sexual abuse when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. (Pinlac vs. People, G.R. No. 197458, November 11, 2015)

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Prohibition Against Worst Forms of Child Who may file a complaint? Complaints on cases of unlawful acts committed against children as enumerated herein may be filed by the following: a) Offended party; b) Parents or guardians; c) Ascendant or collateral relative within the third degree of consanguinity; d) Officer, social worker or representative of a licensed child-caring institution; e) Officer or social worker of the DSWD; f) Barangay chairman of the place where the violation occurred, where the child is residing or employed; or g) At least three concerned, responsible citizens where the violation occurred. Q. SWINDLING BY SYNDICATE [PRESIDENTIAL DECREE (P.D.) NO. 1689] INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR ESTAFA Estafa is committed when fraud is employed to the prejudice of another person. It may be committed in several ways, such as: a) through unfaithfulness or abuse of confidence; b) by false pretense or fraudulent acts executed prior to or simultaneous with the commission of the fraud; c) by other fraudulent means; or d) by swindling or other deceits. There is Syndicated Estafa when five or more persons group together with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers association, or of funds solicited by corporations/associations from the general public. Elements of Syndicated Estafa: 1. That Estafa or other forms of Swindling as defined in Art. 315 and 316 of the RPC is committed;

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2. That the Estafa or Swindling is committed by a syndicate consisting of 5 or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme; and 3. That such defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general Public. (Sec. 1, P.D. No. 1689) Penalties Any person or persons who shall commit estafa or other forms of swindling as defined in Arts. 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, “samahang nayon(s),” or farmers’ associations, or of funds solicited by corporation/associations from the general public. When not committed by a syndicate, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos. (Sec. 1, P.D. No. 1689)

IV. PRACTICAL EXERCISES A. Drafting of Complaint, Information, Affidavits of Desistance, etc. Sample form: INFORMATION (with Preliminary Investigation Conducted) REPUBLIC OF THE PHILIPPINES _____________ JUDICIAL REGION _________TRIAL COURT _________ CITY, BRANCH _______ PEOPLE OF THE PHILIPPINES,

Plaintiff, Crim. Case No.: _____ For: ______________

-versus-

Name of the Accused,

Accused.

x--------------------------------------------x INFORMATION The undersigned Assistant Provincial/City Prosecutor accuses (name of the accused) of the crime of (offense committed), defined and penalized under (legal basis for the offense), committed as follows: That on or about (date and time) in (place, city, province and/or municipality of the commission of the offense) and within the jurisdiction of this Honorable Court, the above mentioned accused, not being authorized by law to (circumstances), did then and there, willfully, unlawfully, knowingly, and feloniously, (acts or omission constituting the crime). Contrary to law. (City or Municipality), (Date of filing).

(signed) (Name of the Assistant Provincial/City Prosecutor)

Assistant Provincial/City Prosecutor

Approved By:

(signed) (Name of the Provincial/City Prosecutor) Provincial/City Prosecutor

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CERTIFICATION This is to certify that a Preliminary Investigation was conducted in this case in accordance with law; that I have examined the complainant and his witnesses; that there is reasonable ground to believe that the offense charged had been committed and the accused is probably guilty thereof; the accused was given the opportunity to present controverting evidence and that the filing of this information is with the authority of the Provincial/City Prosecutor.

(signed)

(Name of the Assistant Provincial/City Prosecutor) Assistant Provincial/City Prosecutor JURAT SUBSCRIBED AND SWORN to before me this ________ in ___________.

(signed)

(Name of the Provincial/City Prosecutor) Provincial/City Prosecutor WITNESS/ES: 1.(Name and Address of witness) 2. (Name and Address of witness) BAIL RECOMMENDED: Php (amount of bail)

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Sample form: INFORMATION (with Inquest Proceeding Conducted) REPUBLIC OF THE PHILIPPINES _____________ JUDICIAL REGION _________TRIAL COURT _________ CITY, BRANCH _______ PEOPLE OF THE PHILIPPINES,

Plaintiff,

Crim. Case No.: _____ For: ______________

-versus-

Name of the Accused,

Accused.

x--------------------------------------------x INFORMATION The undersigned Assistant Provincial Prosecutor accuses (name of the accused) of the crime of (offense committed), defined and penalized under (legal basis for the offense), committed as follows: That on or about (date and time) in (place, city, province and/or municipality of the commission of the offense) and within the jurisdiction of this Honorable Court, the above mentioned accused, not being authorized by law to (circumstances), did then and there, willfully, unlawfully, knowingly, and feloniously, (acts or omission constituting the crime). Contrary to law. (City or Municipality) (Date or Time)

(signed) (Name of the Assistant Provincial/City Prosecutor) Assistant Provincial/City Prosecutor

Approved By:

(signed) (Name of the Provincial/City Prosecutor) Provincial/City Prosecutor

295

CERTIFICATION This is to certify that the foregoing Information is filed pursuant to Rules of Criminal Procedure, the accused not having opted to avail himself of his right to preliminary investigation and not having executed a waiver pursuant to the Revised Penal Code. This further certifies that this Information is being filed with the prior authority of the Provincial/City Prosecutor.

(signed) (Name of the Assistant Provincial/City Prosecutor) Assistant Provincial/City Prosecutor

JURAT SUBSCRIBED AND SWORN to before me this ________ in ___________.

(signed) (Name of the Provincial/City Prosecutor) Provincial/City Prosecutor

WITNESS/ES: 1.(Name and Address of witness) 2. (Name and Address of witness)

BAIL RECOMMENDED: Php (amount of bail)

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Sample form: COMPLAINT-AFFIDAVIT Republic of the Philippines}

Place of Execution of Document} S.S. COMPLAINT-AFFIDAVIT I, State personal circumstance/matters, as applicable), after being sworn in accordance with law, states that: 1. 2. 3. 4. 5.

(State personal circumstances of Complainant: Name, Age, Address, Citizenship ); (State personal circumstances of Respondent: Name, Age, Address, Citizenship ); (Details of the allegation). (Details of the allegation). Affiant has nothing more to say.

(Place) and (Date) (signed)

(Name of the Complainant)

JURAT SUBSCRIBED AND SWORN to before me, in ___________, this _______. I hereby certify that I have personally examined the affiant and that I am convinced that he voluntarily executed the foregoing affidavit and that he understood the contents thereof.

(signed) (Name of the Assistant Provincial/City Prosecutor) Assistant Provincial/City Prosecutor

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Sample form: AFFIDAVIT OF DESISTANCE Republic of the Philippines}

Place of Execution of Document} S.S.

AFFIDAVIT OF DESISTANCE I (name of the complainant), Filipino, of legal age and a resident of (place of residence), after having been duly sworn to in accordance with law, depose and state, that: 1. I am the complainant in a criminal case of (name of the offense) against (name of the accused) docketed as (case number), pending before the (name of court and branch) . 2. (Stipulation of circumstance) 3. I fully understand the consequences of executing an Affidavit of Desistance. 4. I am executing this affidavit to attest to the truth of the foregoing statements and respectfully pray that the aforementioned case against (name of accused) be withdrawn.

IN WITNESS WHEREOF, we have hereunto set our hands this (Date) in the City of (Name of City), Philippines. (Name of Complainant) Affiant JURAT SUBSCRIBED AND SWORN to before me this (Date) in the City of (Name of City) Philippines. Exhibiting (Type of Identification) with (I.D. Number) issued on (Date of issuance).

NOTARY PUBLIC Commission Expires on (place)(date) Commission No. ____: Roll No.: ____; IBP No.: ____; PTR No.: ____; MCLE No.: ___.

(Office Address) (Contact Details) Doc. No. _____; Page No. _____; Book No. _____; Series of _____.

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Sample form: DEMURRER TO EVIDENCE REPUBLIC OF THE PHILIPPINES _____________ JUDICIAL REGION _________TRIAL COURT _________ CITY, BRANCH _______ PEOPLE OF THE PHILIPPINES,

Plaintiff,

Crim. Case No.: _____ For: ______________

-versus-

Name of the Accused,

Accused.

x--------------------------------------------x MOTION ACCUSED, through the undersigned counsel, with leave of Court, respectfully submits this Demurrer to the Prosecution’s Evidence and in support thereof, state: GROUND The pieces of evidence presented by the prosecution failed to adduce sufficient evidence to prove the guilt of the accused beyond reasonable doubt. ACCUSATION AGAINST THE ACCUSED The accused is charged under the information filed by the Office of the Provincial/City Prosecutor of (Place/City/Municipality) through the (Name of the Prosecutor , the pertinent portions of which, read as follows, to wit: “That sometime on (date and time) at (place, city, province and/or municipality of the commission of the offense) and within the jurisdiction of this Honorable Court, the above mentioned accused, not being authorized by law to (state circumstances), did then and there, willfully, unlawfully, knowingly, and feloniously, (acts or omission constituting the crime). Contrary to Law.” ARGUMENTS / DISCUSSIONS (state arguments and discussions) PRAYER Accused respectfully prays that: 1. The Court takes note of this motion. 2. The Court dismisses t

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