Criminal Law (Arts. 1-237)

ATENEO CENTRAL BAR OPERATIONS 2007 Criminal Law SUMMER REVIEWER

BOOK I CRIMINAL LAW – A branch of municipal law which defines crimes, treats of their nature and provides for their punishment. Characteristics of Criminal Law: 1. General – binding on all persons who reside or sojourn in the Philippines Exceptions: a. Treaty Stipulation b. Laws of Preferential Application c. Principles of Public International Law Ex: i. sovereigns and other chiefs of state ii. Ambassadors, ministers plenipotentiary, minister resident and charges d’affaires (BUT consuls, vice-consuls and other foreign commercial representatives CANNOT claim the privileges and immunities accorded to ambassadors and ministers.) 2. Territorial – penal laws of the Philippines are enforceable only within its territory Exceptions: (Art. 2 of RPC – binding even on crimes committed outside the Philippines) a. offense committed while on a Philippine ship or airship b. forging or counterfeiting any coin or currency note of the Philippines or obligations and the securities issued by the Government QuickTime™ and a TIFF (Uncompressed) decompressor c. introduction into the country of the are needed to see this picture. above-mentioned obligations and securities d. while being public officers and employees, an offense committed in the exercise of their functions e. crimes against national security and the law of the nations defined in Title One of Book Two

retroactive effect. Exception: when the law is favorable to the accused Exceptions to the Exception: a. The new law is expressly made inapplicable to pending actions or existing causes of action b. Offender is a habitual criminal Theories of Criminal Law: 1. Classical Theory – basis is man’s free will to choose between good and evil, that is why more stress is placed upon the result of the felonious act than upon the criminal himself. The purpose of penalty is retribution. The RPC is generally governed by this theory. 2. Positivist Theory – basis is the sum of social and economic phenomena which conditions man to do wrong in spite of or contrary to his volition. This is exemplified in the provisions on impossible crimes and habitual delinquency. 3. Mixed Theory – combination of the classical and positivist theories wherein crimes that are economic and social in nature should be dealt in a positive manner. The law is thus more compassionate. Construction of Penal Laws: 1. Liberally construed in favor of offender Ex: a. the offender must clearly fall within the terms of the law b. an act is criminal only when made so by the statute 2. In cases of conflict with official translation, original Spanish text is controlling, 3. No interpretation by analogy.

LIMITATIONS ON POWER OF CONGRESS TO ENACT PENAL LAWS: 1. ex post facto law 2. bill of attainder 3. law that violates the equal protection clause of the constitution 4. law which imposes cruel and unusual punishments nor excessive fines

3. Prospective – the law does not have any —Advisers: Atty. Lorenzo Padilla, Justice Diosdado Peralta; Head: Kristine Quimpo; Understudies: Ivy Patdu, Krizna Gomez—

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Omission – failure to perform a duty required by law BOOK ONE GENERAL PROVISIONS

ART.1: TIME WHEN ACT TAKES EFFECT RPC took effect February 1, 1932. ART. 2: APPLICATION OF ITS PROVISIONS RULES: 1. Philippine vessel or airship – Philippine law shall apply to offenses committed in vessels registered with the Philippine Bureau of Customs. It is the registration, not the citizenship of the owner which matters. 2. Foreign vessel a. French Rule General Rule: Crimes committed aboard a foreign vessel within the territorial waters of a country are NOT triable in the courts of such country. Exception: commission affects the peace and security of the territory, or the safety of the state is endangered. b. English Rule General Rule: Crimes committed aboard a foreign vessel within the territorial waters of a country are triable in the courts of such country. Exception: When the crime merely affects things within the vessel or it refers to the internal management thereof. *This is applicable in the Philippines. Title One: FELONIES QuickTime™ AND CIRCUMSTANCES and a TIFF (Uncompressed) decompressor WHICH AFFECT CRIMINAL LIABILITY are needed to see this picture. Chapter One: FELONIES Felonies – acts and omissions punishable by the Revised Penal Code Crime – acts and omissions punishable by any law

ELEMENTS: 1. there must be an act or omission 2. this must be punishable by the RPC 3. act or omission was done by means of dolo or culpa NULLUM CRIMEN, NULLA POENA SINE LEGE – There is no crime when there is no law punishing it. Classification Of Felonies According To The Means By Which They Are Committed: 1. Intentional Felonies- by means of deceit (dolo) Requisites: a. freedom b. intelligence c. intent. MISTAKE OF FACT – misapprehension of fact on the part of the person who caused injury to another. He is not criminally liable. Requisites: a. the act done would have been lawful had the facts been as the accused believed them to be bintention is lawful b. mistake must be without fault or carelessness by the accused 2. Culpable Felonies- by means of fault (culpa) Requisites: a. freedom b. intelligence c. negligence (lack of foresight) and imprudence (lack of skill)

MALA IN SE v. MALA PROHIBITA Mala in se Mala Prohibita not considered moral trait of considered offender defense, not a defense; good faith as a valid unless the crime is intent not defense the result of culpa necessarysufficient that the offender has the intent to perpetrate the act prohibited by the special law

Act – an overt or external act Page 2 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 degree of taken into account accomplishme nt of the crime

taken into account only when consummated

mitigating and taken into account GENERALLY not in imposing penalty taken into account aggravating circumstance degree of when there is more than one offender, participation it is taken into consideration General Rule: laws violated RPC

INTENT v. MOTIVE Intent

GENERALLY not taken into account General Special Laws

Rule: Penal

Motive

purpose to use a moving power which impels particular means to effect one to act a result element of crime except not an element in crimes committed with culpa essential in intentional essential only when the identity felonies of the felon is in doubt

ART. 4: CRIMINAL LIABILITY Par.1 Criminal liability for a felony committed different from that intended to be committed Requisites: 1. felony has been committed intentionally 2. injury or damage done to the other party is the direct, natural and logical consequence of the felony Hence, since he is still motivated by criminal intent, the offender is criminally liable in: 1. Error in personae – mistake in identity 2. Abberatio ictus – mistake in blow QuickTime™ and a 3. Praetor intentionem – lack of intent to TIFF (Uncompressed) decompressor are needed to see this picture. commit so grave a wrong PROXIMATE CAUSE – the cause, which in the natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred

Par. 2 Impossible Crime Requisites: 1. Act would have been an offense against persons or property. 2. There was criminal intent. 3. Accomplishment is inherently impossible; or inadequate or ineffectual means are employed. 4. Act is not an actual violation of another provision of the Code or of special law. Impossible crime occurs when there is: 1. inherent impossibility to commit the crime 2. inadequate means to consummate the crime 3. ineffectual means to consummate the crime Art. 5: Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties Note: Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal possession of firearms or drugs. There can be no executive clemency for these crimes.

ART. 6: CONSUMMATED, FRUSTRATED, AND ATTEMPTED FELONIES STAGES OF EXECUTION: 1. CONSUMMATED – when all the elements necessary for its execution and accomplishment are present 2. FRUSTRATED Elements: a. offender performs all acts of execution b. all these acts would produce the felony as a consequence c. BUT the felony is NOT produced d. by reason of causes independent of the will of the perpetrator 3. ATTEMPTED Elements: a. offender commences the felony directly by overt acts b. does not perform all acts which would produce the felony c. his acts are not stopped by his own spontaneous desistance Page 3 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Attempted Frustrated Consummated Overt acts of All acts of execution are All the acts of execution are execution are present present started Not all acts of Crime sought to be The result execution are committed is not sought is present achieved achieved Due to reasons Due to intervening other than the causes independent of the will of the perpetrator spontaneous desistance of the perpetrator

Crimes, which do not admit of Frustrated and Attempted Stages: 1. Offenses punishable by Special Penal Laws, unless the law provides otherwise 2. Formal crimes – consummated in one instance (Ex: slander, adultery, etc.) 3. Impossible Crimes 4. Crimes consummated by mere attempt (Ex: attempt to flee to an enemy country, treason, corruption of minors) 5. Felonies by omission 6. Crimes committed by mere agreement (Ex: betting in sports: “ending,” corruption of public officers) Crimes which do not admit of Frustrated Stage: 1. Rape 2. Bribery 3. Corruption of Public Officers 4. Adultery 5. Physical Injury 2 stages in the development of a crime: 1. Internal acts - e.g. mere ideas QuickTime™ of the mind and a TIFF (Uncompressed) decompressor - not punishable are needed to see this picture. 2. External acts a. Preparatory acts - ordinarily not punishable except when considered by law as independent crimes (e.g. Art. 304, Possession of picklocks and similar tools) b. Acts of Execution - punishable under the RPC

ART. 7: WHEN LIGHT FELONIES ARE PUNISHABLE General Rule: Punishable only when they have been consummated Exception: Even if not consummated, if committed against persons or property Ex: slight physical injuries, theft, alteration of boundary marks, malicious mischief, and intriguing against honor. Note: Only principals and accomplices are liable; accessories are NOT liable even if committed against persons or property.

ART. 8: CONSPIRACY AND PROPOSAL TO COMMIT FELONY CONSPIRACY Requisites: 1. Two or more persons come to an agreement 2. For the commission of a felony 3. And they decide to commit it Concepts of Conspiracy: 1. As a crime in itself Ex: conspiracy to commit rebellion, insurrection, treason, sedition, coup d’ etat 2. Merely as a means to commit a crime Requisites: a. a prior and express agreement b. participants acted in concert or simultaneously, which is indicative of a meeting of the minds towards a common criminal objective Note: Conspiracy to commit a felony is different from conspiracy as a manner of incurring criminal liability. General Rule: Conspiracy to commit a felony is not punishable since it is merely a preparatory act. Exception: when the law specifically provides for a penalty Ex: rebellion, insurrection, sedition, coup d’ etat General Rule: The act of one is the act of all. Exception: Unless one or some of the conspirators committed some other crime which is not part of the intended crime. Page 4 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Exception to the exception: When the act constitutes an indivisible offense. OVERT ACTS IN CONSPIRACY MUST CONSIST OF: 1. Active participation in the actual commission of the crime itself, or 2. Moral assistance to his co-conspirators by being present at the time of the commission of the crime, or 3. Exerting a moral ascendance over the other co-conspirators by moving them to execute or implement the criminal plan People v. Abut, et al. (GR No. 137601, April 24, 2003)

PROPOSAL TO COMMIT A FELONY Requisites: 1. A person has decided to commit a felony 2. And proposes its execution to some other person or persons

Elements

Crimes

Conspiracy Proposal Agreement to person decides to commit AND commit a crime AND proposes the commission same to another Conspiracy to commit: sedition, treason, rebellion, coup d’ etat

Proposal to commit: treason, rebellion, coup d’ etat *no proposal to commit sedition

ART. 9: GRAVE FELONIES, LESS GRAVE FELONIES AND LIGHT FELONIES QuickTime™ and a

TIFF (Uncompressed) decompressor Importance of Classification are needed to see this picture.

1. To determine whether the felonies can be complexed or not. 2. To determine the prescription of the crime and of the penalty. Penalties (imprisonment): 1. Grave felonies – afflictive penalties: 6 yrs. and 1 day to reclusion perpetua (life) 2. Less grave felonies – correctional penalties:

1 month and 1 day to 6 years 3. Light felonies - arresto menor (1 day to 30 days)

ART. 10: OFFENSES NOT SUBJECT TO THE PROVISIONS OF THIS CODE General Rule: RPC provisions are supplementary to special laws. Exceptions: 1. when special law provides otherwise 2. when provision of RPC are impossible of application, either by express provision or by necessary implication

Terms

Attempted or Frustrated Stages Plea of guilty as mitigating circumstance Minimum, medium and maximum periods Penalty for accessory or accomplice

Special Laws imprisonment

General Rule: Not punishable Exception: Unless otherwise stated No

RPC prision correccional, prision mayor, arresto mayor, etc. Punishable

Yes

Not applicable

Yes

General Rule: None Exception: Unless otherwise stated

Yes

Provisions of RPC applicable to special laws: • Art. 16 Participation of Accomplices • Art. 22 Retroactivity of Penal laws if favorable to the accused • Art. 45 Confiscation of instruments used in the crime Note: When the special law adopts the penalties imposed in the RPC i.e. penalties as reclusion perpetua, prision correccional, etc. the provisions of the RPC on imposition of penalties based on stages of execution, degree of participation and attendance of mitigating and aggravating circumstance may be applied by necessary implication.

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Chapter Two JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY

ART. 11. JUSTIFYING CIRCUMSTANCES JUSTIFYING CIRCUMSTANCES – where the act of a person is in accordance with law such that said person is deemed not to have violated the law. General Rule: No criminal and civil liability incurred. Exception: There is civil liability with respect to par. 4 where the liability is borne by persons benefited by the act.

Par. 1 Self-defense Elements: 1. Unlawful Aggression ƒ indispensable requirement ƒ There must be actual physical assault or aggression or an immediate and imminent threat, which must be offensive and positively strong. ƒ The defense must have been made during the existence of aggression, otherwise, it is no longer justifying. ƒ While generally an agreement to fight does not constitute unlawful aggression, violation of the terms of the agreement to fight is considered an exception. 2. Reasonable necessity of the employed to prevent or repel it –

means

Test of reasonableness depends on: (1) weapon used by aggressor (2) physical condition, character, size QuickTime™ and a and other circumstances of TIFF (Uncompressed) decompressor are needed to see this picture. aggressor (3) physical condition, character, size and circumstances of person defending himself (4) place and occasion of assault 3. Lack of sufficient provocation on the part of the person defending himself NOTE: Perfect equality between the weapons used,

nor material commensurability between the means of attack and defense by the one defending himself and that of the aggressor is not required REASON: the person assaulted does not have sufficient opportunity or time to think and calculate. Rights included in self-defense: 1. defense of person 2. defense of rights protected by law 3. defense of property (only if there is also an actual and imminent danger on the person of the one defending) 4. defense of chastity Kinds of Self-Defense: 1. self-defense of chastity – there must be an attempt to rape the victim 2. defense of property – must be coupled with an attack on the person of the owner, or on one entrusted with the care of such property. People v. Narvaez, (GR No. L-33466-67, April 20, 1983) Attack on property alone was deemed sufficient to comply with element of unlawful aggression

3. self-defense in libel – justified when the libel is aimed at a person’s good name. “Stand ground when in the right” - the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon. NOTE: Under Republic Act 9262 (Anti-Violence Against Women and Their Children Act of 2004), victim-survivors who are found by the Courts to be suffering from Battered Woman Syndrome (BWS) do not incur any criminal or civil liability despite absence of the necessary elements for the justifying circumstance of self-defense in the RPC. BWS is a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

Par. 2 Defense of Relative Elements: 1. unlawful aggression requirement)

(indispensable

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. reasonable necessity of the means employed to prevent or repel it 3. In case the provocation was given by the person attacked, the one making the defense had no part in such provocation. Relative entitled to the defense: 1. spouse 2. ascendants 3. descendants 4. legitimate, natural or adopted brothers and sisters, or relatives by affinity in the same degrees th 5. relatives by consanguinity within the 4 civil degree NOTE: The relative defended may be the original aggressor. All that is required to justify the act of the relative defending is that he takes no part in such provocation. Par. 3 Defense of Stranger Elements: 1. unlawful aggression (indispensable requirement) 2. reasonable necessity of the means employed to prevent or repel it 3. person defending be not induced by revenge, resentment or other evil motive Par. 4 State of Necessity (Avoidance of Greater Evil or Injury) Elements: 1. evil sought to be avoided actually exists 2. injury feared be greater than that done to avoid it 3. no other practical and less harmful means of preventing it NOTE: The necessity must not be due to the negligence or violation of any law by the actor. QuickTime™ and a

Par. 5 FulfillmentTIFFof(Uncompressed) Duty or decompressor Lawful Exercise of are needed to see this picture. a Right or Office Elements: 1. accused acted in the performance of duty or in the lawful exercise of a right or office 2. the injury caused or offense committed be the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office.

NOTE: The accused must prove that he was duly appointed to the position claimed he was discharging at the time of the commission of the offense. It must also be shown that the offense committed was the necessary consequence of such fulfillment of duty, or lawful exercise of a right or office. Par. 6 Obedience to a Superior Order Elements: 1. an order has been issued 2. order has a lawful purpose (not patently illegal) 3. means used by subordinate to carry out said order is lawful NOTE: The superior officer giving the order cannot invoke this justifying circumstance. Good faith is material, as the subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and he is not negligent. General Rule: Subordinate cannot invoke this circumstance when order is patently illegal. Exception: When there is compulsion of an irresistible force, or under impulse of uncontrollable fear.

ART. 12: CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY EXEMPTING CIRCUMSTANCES – grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent. Basis: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. Burden of proof: Any of the circumstances is a matter of defense and must be proved by the defendant to the satisfaction of the court.

Who/what is affected? Nature of act Existence

Justifying Act

Exempting Actor

act is considered legal None

act is wrongful but actor not liable Yes, but since Page 7 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of a crime Liability

No criminal and civil liability BUT there is civil liability as to Art.11(4) (state of necessity)

voluntariness is absent the actor is not liable No criminal liability but there is civil liability EXCEPT as to Art. 12(4) (injury by mere accident) and (7) (lawful cause)

Par. 1 Imbecility or Insanity IMBECILE – one while advanced in age has a mental development comparable to that of children between 2 and 7 years old. He is exempt in all cases from criminal liability. INSANE – one who acts with complete deprivation of intelligence/reason or without the least discernment or with total deprivation of freedom of will. Mere abnormality of the mental faculties will not exclude imputability. General Rule: Exempt from criminal liability Exception: The act was done during a lucid interval. NOTE: Defense must prove that the accused was insane at the time of the commission of the crime because the presumption is always in favor of sanity.

Par. 2 Under Nine Years of Age Requisite: Offender is under 9 years of age at the time of the commission of the crime. There is absolute criminal irresponsibility in the case of a minor under 9 years of age. NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act a minor 15 years and below is exempt from criminal liability Par. 3 Person Over 9 and Under 15 Acting QuickTime™ and a TIFF (Uncompressed) decompressor Without Discernment are needed to see this picture. NOTE: Such minor must have acted without discernment to be exempt. If with discernment, he is criminally liable. Presumption: The minor committed the crime without discernment. DISCERNMENT – mental capacity to fully appreciate

the consequences of the unlawful act, which is shown by the: 1. manner the crime was committed 2. conduct of the offender after its commission NOTE: Under R.A. 9344 a minor over 15 but but below 18 who acted without discernment is exempt from criminal liability Par. 4 Accident without fault or intention of causing it Elements: 1. A person is performing a lawful act 2. with due care 3. He causes injury to another by mere accident 4. Without fault or intention of causing it. Par. 5 Irresistible Force IRRESISTIBLE FORCE – offender uses violence or physical force to compel another person to commit a crime. Elements: 1. The compulsion is by means of physical force. 2. The physical force must be irresistible. 3. The physical force must come from a third person. NOTE: Force must be irresistible so as to reduce the individual to a mere instrument.

Par. 6 Uncontrollable Fear UNCONTROLLABLE FEAR – offender employs intimidation or threat in compelling another to commit a crime. DURESS – use of violence or physical force Elements: 1. The threat which causes the fear is of an evil greater than, or at least equal to, that which he is required to commit. 2. It promises an evil of such gravity and imminence that an ordinary man would have succumbed to it. NOTE: Duress to be a valid defense should be based on real, imminent or reasonable fear for one’s life or limb. It should not be inspired by speculative, fanciful or remote fear. A threat of future injury is not enough. Page 8 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS – Any act done by me against my will is not my act.

NOT a bar to Accused will be acquitted accused’s prosecution and conviction NOT an absolutory Absolutory cause cause

PAR 7. Insuperable Cause INSUPERABLE CAUSE – some motive, which has lawfully, morally or physically prevented a person to do what the law commands Elements: 1. An act is required by law to be done. 2. A person fails to perform such act. 3. His failure to perform such act was due to some lawful or insuperable cause. Ex: 1. A priest can’t be compelled to reveal what was confessed to him. 2. No available transportation – officer not liable for arbitrary detention 3. Mother who was overcome by severe dizziness and extreme debility, leaving child to die – not liable for infanticide (People v. Bandian, 63 Phil 530) ABSOLUTORY CAUSES – where the act committed is a crime but for some reason of public policy and sentiment, there is no penalty imposed. Exempting and justifying circumstances are absolutory causes. Examples of such other circumstances are: 1. spontaneous desistance (Art. 6) 2. accessories exempt from criminal liability (Art. 20) 3. Death or physical injuries inflicted under exceptional circumstances (Art. 247) 4. persons exempt from criminal liability from theft, swindling, malicious mischief (Art 332) 5. instigation NOTE: Entrapment is NOT an absolutory cause. A buy-bust operation conducted in connection with illegal drug-related offenses is a form of entrapment. Entrapment

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

The ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.

Instigation

Instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal

Chapter Three CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

Offset by any aggravating circumstance Effect on penalty

Kinds (Sources)

Privileged Mitigating Cannot be offset

Effect of imposing the penalty by 1 or 2 degrees lower than that provided by law Minority, Incomplete Self-defense, two or more mitigating circumstance without any aggravating circumstance (has the effect of lowering the penalty by one degree). Art. 64, 68 and 69

Ordinary Mitigating Can be offset by a generic aggravating circumstance If not offset, has the effect of imposing the minimum period of the penalty Those circumstances enumerated in paragraph 1 to 10 of Article 13

Age ≤ 15years

Criminal Responsibility/ Effect Absolute irresponsibility, exempting circumstance * as amended by RA 9344 15 < and < Conditional responsibility 18 Without discernment – not criminally liable With discernment – criminally liable * as amended by RA 9344 Minor Sentence is suspended delinquent 18 ≤ and ≤ 70 Full responsibility

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 > 70

Mitigated responsibility, no imposition of death penalty, execution of death sentence may be suspended and commuted

ART. 13: MITIGATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES – those which if present in the commission of the crime reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from that same fact. Par. 1 Incomplete Justifying or Exempting Circumstances NOTE: This applies when not all the requisites are present. If two requisites are present, it is considered a privileged mitigating circumstance. However, in reference to Art.11(4) if any of the last two requisites is absent, there is only an ordinary mitigating circumstance. Remember though, that in selfdefense, defense of relative or stranger, unlawful aggression must always be present as it is an indispensable requirement. Par. 2 Under 18 or Over 70 Years Old

This provision addresses the intention of the offender at the particular moment when the offender executes or commits the criminal act, not to his intention during the planning stage NOTE: In crimes against persons – if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. It is mitigating only when the victim dies. NOTE: It is not applicable to felonies by negligence because in felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence or imprudence. There is no intent on the part of the offender, which may be considered as diminished Par. 4 Provocation or Threat Provocation – any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone. Provocation

Vindication

Made directly only to the Grave offense may be also the offender’s person committing the against relatives mentioned by law felony Cause that brought about the provocation need not be a grave offense Necessary that provocation or threat immediately preceded the act. No time interval

Offended party must have done a grave offense to the offender or his relatives May be proximate. Time interval allowed

NOTE: Age of accused is determined by his age at the date of commission of crime, not date of trial. Par. 3 No Intention to Commit so Grave a Wrong QuickTime™ and a the proven facts NOTE: Can be used only when TIFF (Uncompressed) decompressor are needed toand see thisevident picture. show that there is a notable disproportion between the means employed to execute the criminal act and its consequences.

Factors that can be considered are: 1. weapon used 2. injury inflicted 3. part of the body injured 4. mindset of offender at the time of commission of crime

Requisites: 1. provocation must be sufficient 2. it must originate from the offended party 3. must be immediate to the commission of the crime by the person who is provoked NOTE: Threat should not be offensive and positively strong. Otherwise, it would be an unlawful aggression, which may give rise to self-defense and thus no longer a mitigating circumstance.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Par. 5 Vindication of Grave Offense Requisites: 1. a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degrees 2. the felony is committed in immediate vindication of such grave offense NOTE: “Immediate” 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. (proximate time, not just immediately after)

3rd person Unlawful

Must come from lawful sentiments PASSION & OBFUSCATION Produced by an impulse which may be caused by provocation

PROVOCATION Comes from injured party

Offense which engenders perturbation of mind need not be immediate. It is only required that the influence thereof lasts until the crime is committed

Immediately precede the commission of the crime

Effect is loss of reason and selfcontrol on the part of the offender

Same

Par. 7 Surrender and Confession of Guilt Par. 6 Passion or Obfuscation Requisites: 1. offender acted upon an impulse 2. the impulse must be so powerful that it naturally produced passion or obfuscation in him NOTE: Act must have been committed not in the spirit of lawlessness or revenge; act must come from lawful sentiments. Act, Which Gave Rise To Passion And Obfuscation: 1. That there be an act, both unlawful and unjust 2. The act be sufficient to produce a condition of mind 3. That the act was proximate to the criminal act, not admitting of time during which the perpetrator might recover his normal equanimity 4. The victim must be the one who caused the passion or obfuscation QuickTime™ and a

TIFFobfuscation (Uncompressed) decompressor NOTE: Passion and cannot co-exist with are needed to see this picture. treachery since this means that the offender had time to ponder his course of action.

PASSION & OBFUSCATION Mitigating No physical force needed From the offender himself

IRRESISTIBLE FORCE Exempting Requires physical force Must come from a

Requisites:

VOLUNTARY SURRENDER 1. offender not actually arrested 2. offender surrendered to person in authority 3. surrender was voluntary

VOLUNTARY PLEA OF GUILT 1. offender spontaneously confessed his guilt 2. confession was made in open court, that is, before the competent court that is to try the case 3. confession of guilt was made prior to the presentation of the evidence for the prosecution

WHEN SURRENDER VOLUNTARY - must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because: 1. he acknowledges his guilt; or 2. he wishes to save them the trouble and expense necessarily incurred in his search and capture. NOTE: If both are present, considered as two independent mitigating circumstances. Further mitigates penalty.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: ƒ plea made after arraignment and after trial has begun does not entitle accused to the mitigating circumstance ƒ If accused pleaded not guilty, even if during arraignment, he is entitled to mitigating circumstance as long as he withdraws his plea of not guilty to the charge before the fiscal could present his evidence. ƒ Plea to a lesser charge is not a Mitigating Circumstance because to be such, the plea of guilt must be to the offense charged. ƒ Plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance. Par. 8 Physical Defect of Offender The offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with others. NOTE: The physical defect must relate to the offense committed. Par. 9 Illness of the Offender Requisites: 1. The illness of the offender must diminish the exercise of his will-power. 2. Such illness should not deprive the offender of consciousness of his acts. Par. 10 Similar and Analogous Circumstances

Examples Not examples defendant who is 60 years old killing the wrong with failing eyesight is similar to a person case of one over 70 yrs old QuickTime™ a outraged feeling of TIFF owner of notandresisting arrest is (Uncompressed) decompressor are needed to see this picture. animal taken for ransom is not the same as analogous to vindication of grave voluntary surrender offense

impulse of jealous feeling, similar to passion and obfuscation voluntary restitution of property, similar to voluntary surrender

running amuck is not mitigating

extreme poverty, similar to incomplete justification based on state of necessity

CHAPTER FOUR

CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY

AGGRAVATING CIRCUMSTANCES – Those which, if attendant in the commission of the crime, serve to have the penalty imposed in its maximum period provided by law for the offense or those that change the nature of the crime. BASIS: The greater perversity of the offender manifested in the commission of the felony as shown by: 1. the motivating power itself, 2. the place of the commission, 3. the means and ways employed 4. the time, or 5. the personal circumstances of the offender, or the offended party.

KINDS OF AGGRAVATING CIRCUMSTANCES: 1. Generic - those which apply to all crimes 2. Specific - those which apply only to specific crimes, 3. Qualifying - those that change the nature of the crime 4. Inherent - which of necessity accompany the commission of the crime, therefore not considered in increasing the penalty to be imposed 5. Special - those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances GENERIC AGGRAVATING CIRCUMSTANCE EFFECT : When not set off by any mitigating circumstance, Increases the penalty which should be imposed upon the accused to the

QUALIFYING AGGRAVATING CIRCUMSTANCE EFFECT: Gives the crime its proper and exclusive name and places the author of the crime in such a situation as to deserve no other Page 12 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 maximum period but without exceeding the limit prescribed by law

If not alleged in the information, a qualifying aggravating circumstance will be considered generic May be offset by a mitigating circumstance.

penalty than that specially prescribed by law for said crimes (People v. Bayot, 64Phil269, 273) To be considered as such, MUST be alleged in the information Cannot be offset by a mitigating circumstance

RULES ON AGGRAVATING CIRCUMSTANCES: 1. Aggravating circumstances shall NOT be appreciated if: a) They constitute a crime specially punishable by law, or b) It is included by the law in defining a crime with a penalty prescribed, and therefore shall not be taken into account for the purpose of increasing the penalty. Ex: “That the crime be committed by means of …fire,…explosion” (Art. 14, par. 12) is in itself a crime of arson (Art. 321) or a crime involving destruction (Art. 324). It is not to be considered to increase the penalty for the crime of arson or for the crime involving destruction.

act of all, regardless of lack of knowledge of the facts constituting the circumstance. (Art. 62, par. 4) 5. 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. (Sec. 9, Rule 110, 2000 Rules of Criminal Procedure) 6. 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.

ART. 14: AGGRAVATING CIRCUMSTANCES

Par. 1. That advantage be taken by the offender of his public position Requisites: 1. Offender is public officer 2. Public officer must use the influence, prestige, or ascendancy which his office gives him as means to realize criminal purpose ƒ

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(Art.62, par.2) 3. 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. QuickTime™ and a TIFF (Uncompressed) decompressor 62, par. 3) are needed to see this picture. 4. 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 only those persons who had knowledge of them at the time of the execution of the act or their cooperation therein. Except when there is proof of conspiracy in which case the act of one is deemed to be the

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It is not considered as an aggravating circumstance where taking advantage of official position is made by law an integral element of the crime or inherent in the offense, Ex: malversation (Art. 217), falsification of a document committed by public officers (Art. 171). When the public officer did not take advantage of the influence of his position, this aggravating circumstance is not present NOTE : Taking advantage of a public position is also inherent in the case of accessories under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the crime), and in crimes committed by public officers (Arts. 204245).

Par. 2. That the crime be committed in contempt of or with insult to public authorities Requisites: 1. That the public authority is engaged in the exercise of his functions. 2. That he who is thus engaged in the exercise of said functions is not the person against whom the crime is committed. Page 13 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. The offender knows him to be a public authority. 4. His presence has not prevented the offender from committing the criminal act. PERSON IN AUTHORITY – public authority, or person who is directly vested with jurisdiction and has the power to govern and execute the laws Ex: 1. Governor 2. Mayor 3. Barangay captain/ chairman 4. Councilors 5. Government agents 6. Chief of Police NOTE: A teacher or professor of a public or recognized private school is not a “public authority within the contemplation of this paragraph. While he is a person in authority under Art. 152, that status is only for purposes of Art. 148 (direct assault) and Art. 152 (resistance and disobedience). ƒ

The crime should not be committed against the public authority (otherwise it will constitute direct assault under Art.148)

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This is NOT applicable when committed in the presence of a mere agent.

AGENT – subordinate public officer charged w/ the maintenance of public order and protection and security of life and property Ex: barrio vice lieutenant, barrio councilman Par. 3. That the act be committed: (1) with insult or in disregard of the respect due the offended party on account of his (a)rank, (b) age, or (c) sex or (2) that it be committed in the dwelling of the offended party, if the latter has not given provocation Rules regarding par 3(1): 1. These circumstances shall only be QuickTime™ and a (Uncompressed) decompressor circumstance. consideredTIFF as one aggravating are needed to see this picture. 2. Rank, age, sex may be taken into account only in crimes against persons or honor, they cannot be invoked in crimes against property. 3. It must be shown that in the commission of the crime the offender deliberately intended to offend or insult the sex, age and rank of the offended party. RANK – 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). AGE – may refer to old age or the tender age of the victim. SEX– refers to the female sex, not to the male sex. The AC of disregard of rank, age, or sex is not applicable in the following cases: 1. When the offender acted with passion and obfuscation. 2. When there exists a relationship between the offended party and the offender. 3. When the condition of being a woman is indispensable in the commission of the crime. (Ex: in parricide, abduction, seduction and rape) People vs. Lapaz, March 31, 1989 Disregard of sex and age are not absorbed in treachery because treachery refers to the manner of the commission of the crime, while disregard of sex and age pertains to the relationship of the victim. DWELLING – must be a building or structure exclusively used for rest and comfort (combination of house and store not included), may be temporary as in the case of guests in a house or bedspacers. It includes dependencies, the foot of the staircase and the enclosure under the house NOTES: ƒ The aggravating circumstance of dwelling requires that the crime be wholly or partly committed therein or in any integral part thereof. ƒ Dwelling does not mean the permanent residence or domicile of the offended party or that he must be the owner thereof. He must, however, be actually living or dwelling therein even for a temporary duration or purpose. ƒ It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without. What aggravates the commission of the crime in one’s dwelling: 1. The abuse of confidence which the offended party reposed in the offender by opening the door to him; or Page 14 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner. Meaning of provocation in the aggravating circumstance of dwelling: The provocation must be: 1. Given by the owner of the dwelling, 2. Sufficient, and 3. Immediate to the commission of the crime. NOTE: 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. REASON: When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house. Dwelling is not aggravating in the following cases: 1. When both the offender and the offended party are occupants of the same house, and this is true even if offender is a servant in the house. 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. 2. When robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent. ƒ

However, dwelling is aggravating in robbery with violence against or intimidation of persons because this class of robbery can be committed without the necessity of trespassing the sanctity of the offended party’s house. QuickTime™ and a TIFF (Uncompressed) decompressor

to see this picture. 3. In the crimeare needed of trespass to dwelling, it is inherent or included by law in defining the crime.

4. When the owner of the dwelling gave sufficient and immediate provocation. ƒ There must exist a close relation between the provocation made by the victim and the commission of the crime by the accused.

5. The victim is not a dweller of the house. Par. 4. That the act be committed with: (1) abuse of confidence or (2) obvious ungratefulness There are two aggravating circumstances present under par.4 which must be independently appreciated if present in the same case While one may be related to the other in the factual situation in the case, they cannot be lumped together. Abuse of confidence requires a special confidential relationship between the offender and the victim, while this is not required for there to be obvious ungratefulness

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Requisites Of Abuse Of Confidence: 1. That the offended party had trusted the offender. 2. That the offender abused such trust by committing a crime against the offended party. 3. That the abuse of confidence facilitated the commission of the crime. NOTE: Abuse of confidence is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315), and qualified seduction (Art. 337). Requisites of obvious ungratefulness: 1. That the offended party had trusted the offender; 2. That the offender abused such trust by committing a crime against the offended party. 3. That the act be committed with obvious ungratefulness. NOTE: The ungratefulness contemplated by par. 4 must be such clear and manifest ingratitude on the part of the accused. Par. 5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship. ƒ

Actual performance of duties is not necessary when crime is committed in the palace or in the presence of the Chief Executive

Requisites Regarding Public Authorities: 1. crime occurred in the public office

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. public authorities are actually performing their public duties

NIGHTTIME (obscuridad) – that period of darkness beginning at the end of dusk and ending at dawn. ƒ

PAR. 5. Where public PAR. 2. Contempt or authorities are engaged insult to public in the discharge of their authorities duties FOR BOTH, Public authorities are in the performance of their duties

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Place where public duty is performed In their office. Outside of their office. The offended party May or may not be the Public authority should public authority not be the offended party Requisites (Place Dedicated To Religious Worship): 1. The crime occurred in a place dedicated to the worship of God regardless of religion 2. The offender must have decided to commit the crime when he entered the place of worship ƒ

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Except for the third which requires that official functions are being performed at the time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there. Cemeteries, however respectable they may be, are not considered as place dedicated to the worship of God.

Par. 6. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place, or (3) by a band, whenever such circumstance may facilitate the commission of the offense NOTE: When present in the same case and their element are distinctly palpable and can subsist independently, they shall be considered separately. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

When nighttime, uninhabited place or band aggravating: 1. When it facilitated the commission of the crime; or 2. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or 3. When the offender took advantage thereof for the purpose of impunity

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Commission of the crime must begin and be accomplished in the nighttime. When the place of the crime is illuminated by light, nighttime is not aggravating. It is not considered aggravating when the crime began at daytime. Nighttime is not especially sought for when the notion to commit the crime was conceived of shortly before commission or when crime was committed at night upon a casual encounter However, nighttime need not be specifically sought for when (1) it facilitated the commission of the offense, or (2) the offender took advantage of the same to commit the crime A bare statement that crime was committed at night is insufficient. The information must allege that nighttime was sought for or taken advantage of, or that it facilitated the crime

GENERAL RULE: Nighttime is absorbed in treachery. EXCEPTION: Where both the treacherous mode of attack and nocturnity were deliberately decided upon in the same case, they can be considered separately if such circumstances have different factual bases. Thus: ƒ In People vs. Berdida, et. al. (June 30, 1966), nighttime was considered since it was purposely sought, and treachery was further appreciated because the victim’s hands and arms were tied together before he was beaten up by the accused. ƒ In People vs. Ong, et. al. (Jan. 30, 1975), there was treachery as the victim was stabbed while lying face up and defenseless, and nighttime was considered upon proof that it facilitated the commission of the offense and was taken advantage of by the accused. UNINHABITED PLACE (despoblado) – one where there are no houses at all, a place at a considerable distance from town, where the houses are scattered at a great distance from each other ƒ ƒ

Solitude must be sought to better attain the criminal purpose What should be considered here is whether in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help. Page 16 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. When both the attacking party and the party attacked were equally armed. 2. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose. 3. When the others were only “casually present” and the offender did not avail himself of any of their aid or when he did not knowingly count upon their assistance in the commission of the crime

BAND (en cuadrilla) – whenever there are more than 3 armed malefactors that shall have acted together in the commission of an offense NOTE: There must be four or more armed men ƒ

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If one of the four-armed malefactors is a principal by inducement, they do not form a band because it is undoubtedly connoted that he had no direct participation. “By a band” is aggravating in crimes against property or against persons or in the crime of illegal detention or treason but does not apply to crimes against chastity “By a band” is inherent in brigandage This aggravating circumstance is absorbed in the circumstance of abuse of superior strength

Par. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. Requisites: 1. The crime was committed when there was a calamity or misfortune 2. The offender took advantage of the state of confusion or chaotic condition from such misfortune ƒ

If the offended was PROVOKED by the offended party during the calamity/misfortune, this aggravating circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity Requisites: 1. That armed men or persons took part in the commission of the crime, directly or indirectly. 2. That the accused availed himself of their aid or relied upon them when the crime was QuickTime™ and a committed.TIFF (Uncompressed) decompressor are needed to see this picture.

NOTE: This aggravating circumstance requires that the armed men are accomplices who take part in a minor capacity directly or indirectly, and not when they were merely present at the crime scene. Neither should they constitute a band, for then the proper aggravating circumstance would be cuadrilla. When This Aggravating Circumstance Shall Not Be Considered:

Par. 6 “By a band”

Par. 8. “With the aid of armed men”

As to their number Requires more than three At least two armed malefactors (i.e., at least four) As to their action Requires that more than This circumstance is three armed malefactors present even if one of the shall have acted together offenders merely relied on in the commission of an their aid, for actual aid is offense. not necessary. ƒ

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If there are four armed men, aid of armed men is absorbed in employment of a band. If there are three armed men or less, aid of armed men may be the aggravating circumstance. “Aid of armed men” includes “armed women.”

Par. 9. That the accused is a recidivist RECIDIVIST – 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 the RPC. Requisites: 1. That the offender is on trial for an offense; 2. That he was previously convicted by final judgment of another crime; 3. That both the first and the second offenses are embraced in the same title of the Code; 4. That the offender is convicted of the new offense. MEANING OF “at the time of his trial for one crime.” It is employed in its general sense, including the rendering of the judgment. It is meant to include everything that is done in the course of the trial, from Page 17 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 arraignment until after sentence is announced by the judge in open court. ƒ

What is controlling is the TIME OF THE TRIAL, not the time of the commission of the offense.

GENERAL RULE: To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused. Exception: If the accused does not object and when he admits in his confession and on the witness stand. ƒ Recidivism must be taken into account no matter how many years have intervened between the first and second felonies. ƒ

Amnesty extinguishes the penalty and its effects. However, pardon does not obliterate the fact that the accused was a recidivist. Thus, even if the accused was granted a pardon for the first offense but he commits another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist

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Being an ordinary aggravating circumstance, recidivism affects only the periods of a penalty, except in prostitution and vagrancy (Art. 202) and gambling (PD 1602) wherein recidivism increases the penalties by degrees. No other generic aggravating circumstance produces this effect

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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. 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 convicted handed down on the same day shall be considered as only one conviction. REASON: Because the Code requires that to be QuickTime™ and a (Uncompressed) decompressor at the time of considered as TIFF separate convictions, are needed to see this picture. his trial for one crime the accused shall have been previously convicted by final judgment of the other.

Par. 10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

Requisites Of Reiteracion Or Habituality: 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 crimes to which it attaches a lighter penalty than that for the new offense; and 3. That he is convicted of the new offense HABITUALITY RECIDIVISM As to the first offense It is necessary that the It is enough that a offender shall have final judgment has served out his been rendered in the sentence for the first first offense. offense As to the kind of offenses involved The previous and Requires that the subsequent offenses offenses be included must not be em in the same title of the braced in the same Code. title of the Code. THE FOUR FORMS OF REPETITION ARE: 1. Recidivism (par. 9, Art. 14) – Where a person, on separate occasions, is convicted of two offenses embraced in the same title in the RPC. This is a generic aggravating circumstance. 2. Reiteracion or Habituality (par. 10, Art. 14) – Where the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two crimes to which it attaches a lighter penalty. This is a generic aggravating circumstance. 3. Multi-recidivism or Habitual delinquency (Art. 62, par, 5) – Where a person within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third time or oftener. This is an extraordinary aggravating circumstance. 4. Quasi-recidivism (Art. 160) – Where a person commits felony before beginning to serve or while serving sentence on a previous conviction for a felony. This is a special aggravating circumstance. ƒ

Since reiteracion provides that the accused has duly served the sentence for his previous conviction/s, or is legally considered to have Page 18 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

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done so, quasi-recidivism cannot at the same time constitute reiteracion, hence this aggravating circumstance cannot apply to a quasi-recidivist.

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When another aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be considered as generic aggravating circumstance only

If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can easily be proven.

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When used as a means to kill another person, the crime is qualified to murder. PAR. 12 “by means of inundation, fire, etc.”

Par. 11. That the crime be committed in consideration of price, reward or promise. Requisites: 1. There are at least 2 principals: • The principal by inducement (one who offers) • The principal by direct participation (accepts) 2. The price, reward, or promise should be previous to and in consideration of the commission of the criminal act NOTE: The circumstance is applicable to both principals .It affects the person who received the price / reward as well as the person who gave it. ƒ

If without previous promise it was given voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty.

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The price, reward or promise need not consist of or refer to material things or that the same were actually delivered, it being sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense.

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The inducement must be the primary consideration for the commission of the crime.

The crime is committed by means of any such acts involving great waste or ruin.

Par. 13. That the act be committed with evident premeditation Requisites: The prosecution must prove – 1. The time when the offender 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. Essence of premeditation: 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. ƒ

To establish evident premeditation, it must be shown that there was a period sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the conscience to overcome the resolution of the will, as well as outward acts showing the intent to kill. It must be shown that the offender had sufficient time to reflect upon the consequences of his act but still persisted in his determination to commit the crime. (PEOPLE vs. SILVA, et. al., GR No. 140871, August 8, 2002)

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Premeditation is absorbed by reward or promise.

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When the victim is different from that intended, premeditation is not aggravating. However, if the

Par. 12. That the crime be committed by means of QuickTime™ and a TIFF poison, (Uncompressed)explosion, decompressor inundation, fire, stranding are needed to see this picture. of a vessel or intentional damage thereto, derailment of a locomotive, or by use of any artifice involving great waste and ruin ƒ

The circumstances under this paragraph will only be considered as aggravating if and when they are used by the offender as a means to accomplish a criminal purpose

PAR. 7 “on the occasion of a conflagration, shipwreck, etc. The crime is committed on the occasion of a calamity or misfortune.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 offender premeditated on the killing of any person, it is proper to consider against the offender the aggravating circumstance of premeditation, because whoever is killed by him is contemplated in his premeditation.

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DISGUISE (disfraz) – resorting to any device to conceal identity.

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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.

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The use of an assumed name in the publication of a libel constitutes disguise.

Par. 14. That (1) craft, (2) fraud, or (3) disguise be employed. Requisite The offender must have actually used craft, fraud, or disguise to facilitate the commission of the crime. CRAFT (astucia) – involved the use of intellectual trickery or cunning on the part of the accused. A chicanery resorted to by the accused to aid in the execution of his criminal design. It is employed as a scheme in the execution of the crime. FRAUD (fraude) – insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

FRAUD Where there is a direct inducement by insidious words or machinations, fraud is present.

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CRAFT The act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently where they are adopted for a different purpose in the commission of the crime. Ex: ƒ In People vs. San Pedro (Jan. 22, 1980), where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the QuickTime™ and a vehicle, separate from the means TIFF (Uncompressed) decompressor needed to see picture. subsequentlyare used to thistreacherously kill the defenseless driver. ƒ

In People vs. Masilang (July 11, 1986) there was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver.

Par. 15. That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense. Par. 15 contemplates two aggravating circumstances, either of which qualifies a killing to murder. MEANING OF “advantage be taken”: 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., GR No. 147649, December 17, 2002) No Advantage Of Superior Strength In The Following: 1. One who attacks another with passion and obfuscation does not take advantage of his superior strength. 2. 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. ƒ

TEST for abuse of superior strength: the relative strength of the offender and his victim and whether or not he took advantage of his greater strength.

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When 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.

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Abuse of superior strength is inherent in the crime of parricide where the husband kills the wife. It is generally accepted that the husband is physically stronger than the wife.

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Abuse of superior strength is also present when the offender uses a weapon which is out of proportion to the defense available to the offended party.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 “BY A BAND”

“ABUSE OF SUPERIOR STRENGTH”

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.

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. Hence, what is taken into account here is not the number of aggressors nor the fact that they are armed, but their relative physical strength vis-a vis the offended party.

directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. Requisites: 1. That at the 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. TEST: It is not only the relative position of the parties but, more specifically, whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack. Rules Regarding Treachery: 1. Applicable only to crimes against persons. 2. Means, methods or forms need not insure accomplishment of crime. 3. The mode of attack must be consciously adopted. ƒ

Treachery is taken into account even if the crime against the person is complexed with another felony involving a different classification in the Code. Accordingly, in the special complex crime of robbery with homicide, treachery but can be appreciated insofar as the killing is concerned.

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The suddenness of attack in itself does not constitute treachery, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental.

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Treachery applies in the killing of a child even if the manner of attack is not shown.

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Treachery must be convincing evidence

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Treachery is considered against all the offenders when there is conspiracy.

NOTE: Abuse of superior strength absorbs cuadrilla (“band”). MEANING OF “Means employed to weaken defense” - the offender employs means that materially weaken the resisting power of the offended party. Ex: 1. Where one, struggling with another, suddenly throws a cloak over the head of his opponent and while in this situation he wounds or kills him. 2. One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him. 3. When the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby materially weakening the latter’s resisting power. QuickTime™is andapplicable a NOTE: This circumstance only to TIFF (Uncompressed) decompressor are needed to see this picture. crimes against persons, and sometimes against person and property, such as robbery with physical injuries or homicide. Par. 16. That the act be committed with treachery (alevosia) TREACHERY – when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend

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WHEN MUST TREACHERY BE PRESENT: 1. When the aggression is continuous, treachery must be present in the beginning of the assault. (PEOPLE vs. MANALAD, GR No. 128593, August 14, 2002) ƒ

Thus, even if the deceased was shot while he was lying wounded on the ground, it appearing that the firing of the shot was a mere continuation of the assault in which the deceased was Page 21 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 wounded, with no appreciable time intervening between the delivery of the blows and the firing of the shot, it cannot be said that the crime was attended by treachery. 2. 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. ƒ

Hence, even though in the inception of the aggression which ended in 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.

Treachery Should Be Considered Even If: 1. The victim was not predetermined but there was a generic intent to treacherously kill any first two persons belonging to a class. (The same rule obtains for evident premeditation). 2. There was aberratio ictus and the bullet hit a person different from that intended. (The rule is different in evident premeditation). 3. There was error in personae, hence the victim was not the one intended by the accused. (A different rule is applied in evident premeditation). REASON FOR THE RULE: When there is treachery, it is impossible for either the intended victim or the actual victim to defend himself against the aggression. TREACHERY ABSORBS: 1. Craft 2. Abuse of superior strength 3. Employing means to weaken the defense QuickTime™ and a TIFF (Uncompressed) decompressor 4. Cuadrilla (“band”) are needed to see this picture. 5. Aid of armed men 6. Nighttime

TREACHERY

ABUSE OF SUPERIOR STRENGTH

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

Offender does not employ means, methods or forms of attack, he only takes advantage of his superior strength

MEANS EMPLOYED TO WEAKEN DEFENSE Means are employed but it only materially weakens the resisting power of the offended party

Par. 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act IGNOMINY – is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. MEANING OF “which add ignominy to the natural effects thereof” 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. Thus it is incorrect to appreciate ignominy where the victim was already dead when his body was dismembered, for such act may not be considered to have added to the victim’s moral suffering or humiliation. (People vs. Carmina, G.R. No. 81404, January 28, 1991) ƒ

Applicable to crimes against chastity, less serious physical injuries, light or grave coercion, and murder.

Par. 18. That the crime be committed after an unlawful entry. UNLAWFUL ENTRY - when an entrance is effected by a way not intended for the purpose. NOTE: Unlawful entry must be a means to effect entrance and not for escape. REASON FOR AGGRAVATION: One who acts, not respecting the walls erected by men to guard their property and provide for their personal safety, shows a greater perversity, a greater audacity; hence, the law punishes him with more severity.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Par. 19. That as a means to the commission of a crime, a wall, roof, floor, door, or window be broken.

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Applicable only if such acts were done by the offender to effect ENTRANCE. If the wall, etc., is broken in order to get out of the place, it is not an aggravating circumstance.

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It is NOT necessary that the offender should have entered the building Therefore, If the offender broke a window to enable himself to reach a purse with money on the table near that window, which he took while his body was outside of the building, the crime of theft was attended by this aggravating circumstance.

PAR. 19 It involves the breaking (rompimiento) of the enumerated parts of the house.

PAR. 18 Presupposes that there is no such breaking as by entry through the window.

NOTE: Breaking in is lawful in the following instances: 1. An officer, in order to make an arrest, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be; 2. An officer, if refused admittance, may break open any door or window to execute the search warrant or liberate himself, 3. Replevin, Section 4, Rule 60 of the Rules of Court Par. 20. That the crime be committed (1) with the aid of persons under fifteen (15) years of age, or (2) by means of motor vehicles, airships, or other similar means. QuickTime™ and a TWO DIFFERENTTIFFCIRCUMSTANCES GROUPED (Uncompressed) decompressor are needed to see this picture. IN THIS PARAGRAPH: 1. With the aid of persons under fifteen years of age: ƒ Intends to repress, so far as possible, the frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their irresponsibility. 2. By means of motor vehicles, airships, or other similar means:

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Intended to counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed.

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Use of motor vehicle is aggravating where the accused purposely and deliberately used the motor vehicle in going to the place of the crime, in carrying away the effects thereof, and in facilitating their escape.

MEANING OF “or other similar means” Should be understood as referring to motorized vehicles or other efficient means of transportation similar to automobile or airplane.

Par. 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission CRUELTY – there is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing unnecessary physical pain in the consummation of the criminal act. Requisites: 1. That the injury caused be deliberately increased by causing other wrong; 2. That the other wrong be unnecessary for the execution of the purpose of the offender. ƒ ƒ

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Cruelty is not inherent in crimes against persons. In order for it to be appreciated, there must be positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order unnecessarily to prolong physical suffering. Cruelty cannot be presumed 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.

IGNOMINY (PAR.17) Involves MORAL suffering ¾

CRUELTY (PAR. 21) Refers to PHYSICAL suffering

Unlike mitigating circumstances (par. 10, Art. 13), there is NO provision for aggravating circumstances of a similar or analogous character.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 CHAPTER FIVE ALTERNATIVE CIRCUMSTANCES

ALTERNATIVE CIRCUMSTANCES – Those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission.

ART.15 Concept of Alternative Circumstances BASIS: The nature and effects of the crime and the other conditions attending its commission. THE ALTERNATIVE CIRCUMSTANCES ARE: 1. Relationship; 2. Intoxication; and 3. Degree of instruction and education of the offender. RELATIONSHIP The alternative circumstance of relationship shall be taken into consideration when the offended party is the – 1. Spouse, 2. Ascendant, 3. Descendant, 4. Legitimate, natural, or adopted brother or sister, or 5. Relative by affinity in the same degree of the offender. Other Relatives Included (By Analogy): 1. The relationship of stepfather or stepmother and stepson or stepdaughter. REASON: It is the duty of the stepparents QuickTime™ to bestow upon their and a TIFF (Uncompressed) decompressor stepchildren a mother’s/father’s affection, are needed to see this picture. care and protection. 2. The relationship of adopted parent and adopted child. NOTE: But the relationship of uncle and niece is not covered by any of the relationship mentioned.

When Relationship Mitigating And When Aggravating: 1. As a rule, relationship is mitigating in crimes against property, by analogy to the provisions of Art. 332. ƒ Thus, relationship is mitigating in the crimes of robbery (Arts. 294-302), usurpation (Art. 312), fraudulent insolvency (Art. 314) and arson (Arts. 321-322, 325-326). 2. In crimes against persons – a) It is aggravating where the offended party is a relative of I. a higher degree than the offender, or II. when the offender and the offended party are relatives of the same level (e.g. brothers) b) But when it comes to physical injuries: i. It is aggravating when the crime involves serious physical injuries (Art. 263), even if the offended party is a descendant of the offender. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement. ii. It is mitigating when the offense committed is less serious physical injuries or slight physical injuries, if the offended party is a relative of a lower degree. iii. It is aggravating if the offended party is a relative of a higher degree of the offender. c) When the crime is homicide or murder, relationship is aggravating even if the victim of the crime is a relative of a lower degree. d) In rape, relationship is aggravating where a stepfather raped his stepdaughter or in a case where a father raped his own daughter. 3. In crimes against chastity, like acts of lasciviousness (Art. 336), relationship is always aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party. ƒ

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 offense. (e.g. parricide, adultery and concubinage).

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 INTOXICATION TITLE TWO

When Intoxication Mitigating And When Aggravating: 1. Mitigating – i. If intoxication is not habitual, or ii. If intoxication is not subsequent to the plan to commit a felony. 2. Aggravating – i. If intoxication is habitual, or ii. If it is intentional (subsequent to the plan to commit a felony). To Be Entitled To The Mitigating Circumstance Of Intoxication, It Must Be Shown: 1. That at the time of the commission of the criminal act, the accused has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control, and 2. That such intoxication is not habitual, or subsequent to the plan to commit the felony. ƒ To be mitigating, the accused’s state of intoxication must be proved. Once intoxication is established by satisfactory evidence, in the absence of proof to the contrary, it is presumed to be non-habitual or unintentional. INSTRUCTION OR EDUCATION ƒ As an alternative circumstance it does not refer only to literacy but more to the level of intelligence of the accused. ƒ Refers to the lack or presence of sufficient intelligence and knowledge of the full significance of one’s acts. ƒ Low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating, when the offender took advantage of his learning in committing the crime. GENERAL RULE: Lack of sufficient education is QuickTime™ and a TIFF (Uncompressed) decompressor mitigating. are needed to see this picture. EXCEPTIONS: 1. Crimes against property (e.g. arson, estafa, theft, robbery) 2. Crimes against chastity, and 3. Treason – because love of country should be a natural feeling of every citizen, however unlettered or uncultured he may be.

PERSONS CRIMINALLY LIABLE FOR FELONIES

ART.16.WHO ARE CRIMINALLY LIABLE ƒ

Note that accessories are not liable for light felonies. REASON: In the commission of light felonies, the social wrong as well as the individual prejudice is so small that penal sanction is unnecessary.

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The classification of the offenders as principal, accomplice or an accessory is essential under the RPC. The classification maybe applied to special laws only if the latter provides for the same graduated penalties as those provided under the RPC.

There Are Two Parties In All Crimes: 1. Active subject (the criminal) ƒ Art. 16 enumerates the active subjects of the crime. 2. Passive subject (the injured party) ƒ Is the holder of the injured right: the man, the juristic person, the group, and the State. ƒ Note: Only natural persons can be the active subject of crime because of the highly personal nature of the criminal responsibility. ƒ

However, corporation and partnership can be a passive subject of a crime.

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GENERALLY: Corpses and animals cannot be passive subjects because they have no rights that may be injured. EXCEPTION: Under Art. 253, the crime of defamation may be committed if the imputation tends to blacken the memory of one who is dead.

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This article applies only when the offenders are to be judged by their individual, and not collective, liability.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART.17.PRINCIPALS THREE TYPES OF PRINCIPALS: 1. Principal by DIRECT PARTICIPATION (par.1) 2. Principal by INDUCTION (par.2) 3. Principal by INDISPENSABLE COOPERATION (par.3) • Par. 1 – Principals by direct participation Requisites: 1. That they participated in the criminal resolution; and (conspiracy) 2. That they carried out their plan and personally took part in its execution by acts which directly tended to the same end. NOTE: If the second element is missing, those who did not participate in the commission of the acts of execution cannot be held criminally liable, unless the crime agreed to be committed is treason, sedition, coup d’ etat or rebellion. MEANING OF “personally took part in its execution” ƒ

That the principal by direct participation must be at the scene of the commission of the crime, personally taking part in its execution.

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Under conspiracy, although he was not present in the scene of the crime, he is equally liable as a principal by direct participation. Ex: One serving as guard pursuant to the conspiracy is a principal by direct participation

NOTES: ƒ Conspirator is not liable for the crimes of the others which are not the object of the conspiracy nor are logical or necessary consequences thereof ƒ

Regarding multiple rape – each rapist is liable for another’s crime because each cooperated in the commission of the rapes perpetrated by the others EXCEPTION: in the crime of murder w/ treachery – all the offenders must at least know that there will be treachery in executing the crime or cooperate therein.

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No such thing as conspiracy to commit an offense through negligence. However, special laws may make one a co-principal.

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Conspiracy is negated by the acquittal of codefendant. Par. 2 – Principals by induction

Requisites: 1. That the inducement be made directly with the intention of procuring the commission of the crime; and 2. That such inducement be the determining cause of the commission of the crime by the material executor.

CONSPIRACY – there is unity of purpose and intention. How conspiracy is established: QuickTime™ and a (Uncompressed) decompressor • It is proven by TIFF overt acttoand reasonable are needed see thisbeyond picture. doubt • Mere knowledge or approval is insufficient • It is not necessary that there be formal agreement • Conspiracy is implied when the accused had a common purpose and were united in execution. • Unity of purpose and intention in the commission of the crime may be shown in the following cases:

1. Spontaneous agreement at the moment of the commission of the crime 2. Active cooperation by all the offenders in the perpetration of the crime 3. Contribution by positive acts to the realization of a common criminal intent 4. Presence during the commission of the crime by a band and lending moral support thereto. While conspiracy may be implied from the circumstances attending the commission of the crime, it is nevertheless a rule that conspiracy must be established by positive and conclusive evidence.

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One cannot be held guilty of having instigated the commission of the crime without first being shown that the crime was actually committed (or attempted) by another. Thus, there can be no principal by inducement (or by indispensable cooperation) unless there is a principal by direct participation. But there can be a principal by direct participation without a Page 26 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 principal by inducement (or by indispensable cooperation).

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If the person who actually committed the crime had reason of his own to commit the crime, it cannot be said that the inducement was influential in producing the criminal act.

Two Ways Of Becoming Principal By Induction: 1. By directly forcing another to commit a crime by : a) Using irresistible force. b) Causing uncontrollable fear. ƒ In these cases, there is no conspiracy, not even a unity of criminal purpose and intention. Only the one using the force or causing the fear is criminally liable. The material executor is not criminally liable because of Art. 12, pars. 5 and 6 (exempting circumstances) 2. By directly inducing another to commit a crime by – a) Giving of price, or offering of reward or promise. ƒ The one giving the price or offering the reward or promise is a principal by inducement while the one committing the crime in consideration thereof is a principal by direct participation. There is collective criminal responsibility. b) Using words of command ƒ The person who used the words of command is a principal by inducement while the person who committed the crime because of the words of command is a principal by direct participation. There is also collective criminal responsibility. Requisites for words of command to be considered inducement: 1. Commander has the intention of procuring the commission of the crime 2. Commander has ascendancy or influence 3. Words used be so direct, so efficacious, so powerful 4. Command be uttered prior to the commission QuickTime™ andreason a 5. Executor had no personal TIFF (Uncompressed) decompressor are needed to see this picture.

NOTE: Words uttered in the heat of anger and in the nature of the command that had to be obeyed do not make one an inductor. ƒ

The inducement must precede the act induced and must be so influential in producing the criminal act that without it, the act would not have been performed. Mere imprudent advice is not inducement.

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 when the crime is committed by the principal by direct participation.

The mere proposal to commit a felony is punishable in treason or rebellion. 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 to be punishable must involve only treason or rebellion.

Effects Of Acquittal Of Principal By Direct Participation Upon Liability Of Principal By Inducement: 1. Conspiracy is negatived by the acquittal of codefendant. 2. One cannot be held guilty of having instigated the commission of a crime without first being shown that the crime has been actually committed by another. ƒ 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. ƒ

REASON FOR THE RULE: In exempting circumstances, such as when the act is not voluntary because of lack of intent on the part of the accused, there is a crime

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 committed, only that the accused is not a criminal.

QUASI-COLLECTIVE criminal responsibility: Some of the offenders in the crime are principals and the others are accomplices.

Par. 3 – Principal by indispensable cooperation 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.

ART.18.ACCOMPLICES– ACCOMPLICES - Persons who do not act as principals but cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime. They act as mere instruments that perform acts not essential to the perpetration of the offense Requisites: (the following must concur) 1. That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter his purpose;

MEANING OF “cooperation in the commission of the offense”

2. That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and

To desire or wish in common a thing. But that common will or purpose does not necessarily mean previous understanding, for it can be explained or inferred from the circumstances of each case.

3. That there be a relation between the acts done by the principal and those attributed to the person charged as an accomplice.

NOTE: If the cooperation is not indispensable, the offender is only an accomplice. 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.

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QuickTime™ and a Individual Criminal Responsibility: TIFF (Uncompressed) decompressor

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are needed to see this picture.

In the absence of any previous conspiracy, unity of 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 considered as individual and not collective, and each of the participants is liable only for the act committed by him.

NOTES: ƒ Before there could be an accomplice, there must be a principal by direct participation. ƒ

The person charged as an accomplice should not have inflicted a mortal wound. If he inflicted a mortal wound, he becomes a principal by direct participation.

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In case of doubt, the participation of the offender will be considered that of an accomplice rather than that of a principal.

ART.19.ACCESSORIES Accessories are those who: 1. having knowledge of the commission of the crime, and 2. without having participated therein either as principals or accomplices, take part subsequent to its commission in any of the following acts: a. By profiting themselves or assisting the offender to profit by the effects of the crime. Page 28 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. Assisting the offender to profit by the effects of the crime. c. By concealing or destroying the body of the crime to prevent its discovery.

Requisites: 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. 4. The crime committed by the principal is any crime, provided it is not a light felony.

In profiting by the effects of the crime, the accessory must receive the property from the principal. He should not take it without the consent of the principal. If he took it without the consent of the principal, he is not an accessory but a principal in the crime of theft. EXAMPLE: PAR. 1 - person received and used property from another, knowing it was stolen PAR. 2 - placing a weapon in the hand of the dead who was unlawfully killed to plant evidence, or burying the deceased who was killed by the principals

2. PRIVATE persons who harbor, conceal or assist in the escape of the author of the crime who is guilty of treason, parricide, murder, or attempts against the life of the President, or who is known to be habitually guilty of some other crime. Requisites: 1. The accessory is a private person. 2. He harbors, conceals or assists in the escape of the author of the crime. 3. The crime committed by the principal is either: a. Treason, b. Parricide, c. Murder, d. An attempt against the life of the President, or e. That the principal is known to be habitually guilty of some other crime.

PAR. 3 - a) 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 b) private persons who harbor, conceal or assist in the escape of the author of the crime – guilty of treason, parricide, murder or an attempt against the life of the President, or who is known to be habitually guilty of some crime. GENERAL RULE: If the Principal is acquitted the Accessory is also acquitted. The responsibility of the accessory is subordinate to that of the principal in a crime Exception: When the crime was in fact committed by the principal, but the principal is covered by exempting circumstances (Art 12) and as a result he is not held liable. However, it is possible that the accessory may still be held liable even if the principal was acquitted by an exempting circumstance ƒ

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Neither the letter nor the spirit of the law requires that the principal be convicted before one may be punished as an accessory. As long as the corpus delicti is proved and the accessory’s participation as such is shown, he can be held criminally responsible and meted out the corresponding penalty (Inovero vs. Coronel, CA, 65 O.G. 3160).

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The prescribed acts of the accessory under par. 2 must have been intended to prevent the discovery of the crime, hence, mere silence does not make one an accessory. If, however, the crime involved is a conspiracy to commit treason, his silence may hold him liable for misprision of treason (Art. 116) but as a principal thereof.

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Where the accused misleads the authorities by giving them false information, such act is equivalent to concealment and he should be held as an accessory.

Trial of accessory may proceed without awaiting QuickTime™ and a (Uncompressed) decompressor the result of TIFF the separate charge against the are needed to see this picture. principal because the criminal responsibilities are distinct from each other

Two classes of accessories contemplated in par. 3 of art. 19 1. 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.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 PRINCIPAL

ACCESSORY

Takes direct part or cooperates in, or induces the commission of the crime

Does NOT take direct part or cooperates in, or induces the commission of the crime does not take part in the commission of the offense

cooperates in the commission of the offense by acts either prior thereto or simultaneous therewith Participates during commission of the crime

Participation of the accessory in all cases always SUBSEQUENT to the commission of the crime

ANTI-FENCING LAW OF 1979 PRES. DECREE 1612

FENCING– is an act, with intent to gain, of buying, selling, receiving, possessing, keeping, or in any other manner dealing in anything of value which a person knows or should have known to be derived from the proceeds of the crime of robbery or theft. FENCE– is a person who commits the act of fencing. A fence who receives stolen property as aboveprovided is not an accessory but a principal in the crime defined in and punished by the Anti-Fencing Law.

3. descendant, or 4. legitimate, natural or adopted brother, sister or relative by affinity within the same degree. Accessory Is Not Exempt From Criminal Liability Even If The Principal Is Related To Him, If Such Accessory – 1. profited by the effects of the crime, or 2. assisted the offender to profit by the effects of the crime. REASON: Because such acts are prompted not by affection but by a detestable greed.

NOTES: ƒ Nephew and Niece not included ƒ Public officer contemplated in par. 3 of Art. 19 is exempt by reason of relationship to the principal, even if such public officer acted with abuse of his official functions. REASON: Ties of blood or relationship constitutes a more powerful incentive than the call of duty. P.D. 1829 penalizes the act of any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases. ƒ

The benefits of the exception in Art. 20 do not apply to PD 1829.

TITLE THREE PENALTIES

Mere possession of anything of value which has been the subject of robbery or theft shall be prima facie evidence of fencing. Chapter One : PENALTIES IN GENERAL ART.20.ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL LIABILITY BASIS: QuickTime™ and a TIFF (Uncompressed) decompressor The exemption provided for in this article is based on are needed to see this picture. 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. AN ACCESSORY IS EXEMPT FROM CRIMINAL LIABLITY WHEN THE PRINCIPAL IS HIS : 1. spouse, or 2. ascendant, or

PENALTY – suffering inflicted by the State for the transgression of a law. Different Juridical Conditions Of Penalty: 1. Must be productive of suffering, without however affecting the integrity of the human personality. 2. Must be commensurate with the offense – different crimes must be punished with different penalties.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Must be personal – no one should be punished for the crime of another. 4. Must be legal – it is the consequence of a judgment according to law. 5. Must be certain – no one may escape its effects. 6. Must be equal for all. 7. Must be correctional. Purpose Of The State In Punishing Crimes The State has an existence of its own to maintain, a conscience to assert, and moral principles to be vindicated. Penal justice must therefore be exercised by the State in the service and satisfaction of a duty, and rests primarily on the moral rightfulness of the punishment inflicted (to secure justice). The basis of the right to punish violations of penal law is the police power of the State.

Theories Justifying Penalty: 1. Prevention – to prevent or suppress the danger to the State arising from the criminal act of the offender. 2. Self-defense – so as to protect society from the threat and wrong inflicted by the criminal. 3. Reformation – the object of punishment in criminal cases is to correct and reform the offender. 4. Exemplarity – the criminal is punished to serve as an example to deter others from committing crimes. 5. Justice – that crime must be punished by the State as an act of retributive justice, a vindication of absolute right and moral law violated by the criminal. Three-Fold Purpose Of Penalty Under The Code: 1. Retribution or expiation – the penalty is commensurate with the gravity of the offense. 2. Correction or reformation – shown by the rules which regulate the execution of the penalties QuickTime™ and a consisting in deprivation of liberty. TIFF (Uncompressed) decompressor to seeby this its picture. 3. Social defense are – needed shown inflexible severity to recidivists and habitual delinquents.

ART.21.PENALTIES THAT MAY BE IMPOSED RULE: A felony shall be punishable only by the penalty prescribed by law at the time of its commission. (Art. 21 simply announces the policy of the state as regards punishment of crimes)

REASON: Because 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. ƒ It is a guaranty to the citizens of this country that no act will be considered criminal until the Government has made it so by law and has provided a penalty. ƒ Subsidiary penalty for a crime cannot be imposed, if it was “not prescribed by law prior to its commission” (US vs. Macasaet 11Phil.447)

ART.22.RETROACTIVE EFFECT OF PENAL LAWS NOTE: According to Reyes, Art. 22 is NOT applicable to the provisions of the RPC. Its application to the RPC can only be invoked where some former or subsequent law is under consideration. GENERAL RULE: Penal laws are applied prospectively. EXCEPTION: When retrospective application will be favorable to the person guilty of a felony; Provided that: 1. The offender is NOT a habitual criminal (delinquent) under Art. 62(5); 2. The new or amendatory law does NOT provide against its retrospective application. The favorable retroactive effect of a new law may find the defendant in one of the 3 situations: 1. The crime has been committed and the prosecution begins 2. The sentence has been passed but service has not begun 3. The sentence is being carried out HABITUAL DELINQUENT - A person who, within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification, is found guilty of any said crimes a third time or oftener. EX POST FACTO LAW - An act which when committed was not a crime, cannot be made so by statute without violating the constitutional inhibition as to ex post facto laws. An ex post facto law is one which: 1. Makes criminal an act done before the passage of the law and which was innocent when done; 2. Aggravates a crime, or makes it greater than it was, when committed; Page 31 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. Alters the legal rules of evidence, and authorizes conviction upon a less or different testimony than the law required at the time of the commission of the offense; 5. Assumes to regulate civil rights and remedies only, in effect imposing a penalty or deprivation of a right for something which when done was lawful; and 6. Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. ƒ

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3. When there is a saving clause. BILL OF ATTAINDER – A legislative act which inflicts punishment without trial.

ART.23.EFFECT OF PARDON BY THE OFFENDED PARTY– GENERAL RULE: Pardon by the offended party does not extinguish the criminal liability of the offender. REASON: A crime committed is an offense against the State. Only the Chief Executive can pardon the offenders. EXCEPTION: Pardon by the offended party will bar criminal prosecution in the following crimes: ƒ

If retroactive effect of a new law is justified, it shall apply to the defendant even if 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 The retroactive effect of criminal statutes does NOT apply to the culprit’s civil liability.

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REASON: The rights of offended persons or innocent third parties are not within the gift of arbitrary disposal of the State.

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The provisions of Art. 22 are applicable even to special laws which provide more favorable conditions to the accused.

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New law may provide that its provisions not to be applied to cases already filed in court at the time of the approval of such law.

Criminal liability SUBSISTS:

under

the

repealed

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Adultery and Concubinage (Art. 344, RPC) –

EXPRESS or IMPLIED pardon must be given by offended party to BOTH offenders.

–

Pardon must be given PRIOR to institution of criminal action.

Seduction, Abduction, Acts of Lasciviousness (Art. 344, RPC) -

EXPRESS pardon given by offended party or her parents or grandparents or guardian

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Pardon must be given PRIOR to the institution of the criminal action. However, marriage between the offender and the offended party EVEN AFTER the institution of the criminal action or conviction of the offender will extinguish the criminal action or remit the penalty already imposed against the offender, his coprincipals, accomplices and accessories after the fact.

law

1. When the provisions of the former law are reenacted; or (Note: The right to QuickTime™ punish and offenses committed a TIFF (Uncompressed) decompressor under an old penal law is not extinguished if the are needed to see this picture. offenses are still punishable in the repealing penal law.) 2. When the repeal is by implication; or (Note: 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.)

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Rape (as amended by R.A. 8353) -

The subsequent valid marriage between the offender and the offended party shall extinguish criminal liability or the penalty imposed. In case the legal husband is the offender, subsequent forgiveness by the wife as offended party shall also produce the same effect.

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Pardon by the offended party under Art. 344 is ONLY A BAR to criminal prosecution; it is NOT a ground for extinguishment of criminal liability. It DOES NOT extinguish criminal liability. It is not one of the causes that totally extinguish criminal liability in Art 89 Nevertheless, civil liability may be extinguished by the EXRESS WAIVER of the offended party.Civil liability w/ regard to the interest of the injured party is extinguished by the latter’s express waiver because personal injury may be repaired through indemnity. Waiver must be express. State has no reason to insist on its payment.

AN OFFENSE CAUSES TWO CLASSES OF INJURIES: SOCIAL INJURY

PERSONAL INJURY

Produced by the disturbance and alarm which are the outcome of the offense.

Caused to the victim of the crime who suffered damage either to his person, to his property, to his honor or to her chastity.

Is sought to be repaired through the imposition of the corresponding penalty.

Is repaired indemnity.

The offended party cannot pardon the offender so as to relieve him of the penalty.

The offended party may waive the indemnity and the State has no reason to insist in its payment.

192, PD No. 603) and for the purposes specified therein. 3. Suspension from the employment or public office during the trial or in order to institute 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. Reasons why they are not penalties: 1. Because they are not imposed as a result of judicial proceedings. Those mentioned in paragraphs 1, 3 and 4 are merely preventive measures before conviction of offenders. 2. The offender is not subjected to or made to suffer these measures in expiation of or as punishment for a crime. Note: Those in par 1, 3 and 4 are merely preventive measures before the conviction of offenders. ƒ

Par. 1 refers to “accused persons” who are detained “by reason of insanity or imbecility.” It does not refer to the confinement of an insane or imbecile who has not been arrested for a crime. It

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Paragraphs 3 and 4 refer to administrative suspension and administrative fines and not to suspension or fine as penalties for violations of the RPC. Fines in par. 4 do not constitute as penalties because they are not imposed by the court.

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The deprivations of rights established in penal form by the civil laws is illustrated in the case of parents who are deprived of their parental authority if found guilty of the crime of corruption of their minor children, in accordance with Art. 332 of the Civil Code.

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Where a minor offender was committed to a reformatory pursuant to Art. 80 (now, PD 603), and while thus detained he commits a crime therein, he cannot be considered a quasi-recidivist since his detention was only a preventive measure, whereas a quasirecidivism presupposes the commission of a

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ART.24.MEASURES OF PREVENTION OR SAFETY, WHICH ARE NOT CONSIDERED PENALTIES QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

The Following Shall Not Be Considered As 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 Art. 80 (now Art.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 crime during the service of the penalty for a previous crime. ƒ

Commitment of a minor is not a penalty because it is not imposed by the court in a judgment. The imposition of the sentence in such a case is suspended.

ART. 26: WHEN AFFLICTIVE, CORRECTIONAL, OR LIGHT PENALTY

Distinction between classification of Penalties in Art. 9 and Art. 26 Article 9 Article 26 Applicable in determining the prescriptive period of felonies

Applicable in determining the prescriptive period of penalties

Affli ctive – over 600 0; Corr ecti

onal – 201 to 6000; Light – 200 and less

Fines: 1. Afflictive – over 6000 2. Correctional – 201 to 6000 3. Light – 200 and less NOTES: ƒ The classification applies if the fine is imposed as a single or alternative penalty. Hence, it does not apply if the fine is imposed together with another penalty. ƒ Fines are imposed either as alternative (Ex: Art 144 punishing disturbance of proceedings with arresto mayor or fine from 200 pesos to 1000 pesos) or single (Ex. fine of 200 to 6000 pesos) ƒ Penalty cannot be imposed in the alternative since it is the duty of the court to indicate the penalty imposed definitely and positively. Thus, the court cannot sentence the guilty person in a manner as such as “to pay fine of 1000 pesos, or to suffer an imprisonment of 2 years, and to pay the costs.” ƒ If the fine imposed by the law for the felony is exactly 200 pesos, it is a light felony. * People vs. Yu Hai (99 Phil. 725): Under Art. 9, where the fine in question is exactly P200, it is a light penalty, thus the offense is a light felony; whereas under Art. 26, it is a correctional penalty, hence the offense involved is a less grave felony. It that this discrepancy should be resolved liberally in favor of the accused, hence Art. 9 prevails over Art. 26. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Bond to keep the peace is by analogy:

Chapter Three DURATION AND EFFECTS OF PENALTIES

Section One. — Duration of Penalties Art. 27: RECLUSION PERPETUA 1. Reclusión perpetua – 20 years and 1 day to 40 years 2. Reclusión temporal – 12 years and 1 day to 20 years 3. Prisión mayor and temporary disqualification – 6 years and 1 day to 12 years, except when disqualification is an accessory penalty, in which case its duration is that of the principal penalty 4. Prisión correccional, suspensión, and destierro – 6 months and 1 day to 6 years, except when suspensión is an accessory penalty, in which case its duration is that of the principal penalty 5. Arresto mayor – 1 month and 1 day to 6 months Page 34 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 6. Arresto menor – 1 day to 30 days 7. Bond to keep the peace – The period is discretionary on the court. NOTES: 1. Destierro is a principal, divisible and correctional penalty. 2. Cases when destierro imposed: a. Serious physical injuries or death under exceptional circumstances (Art. 247) b. In case of failure to give bond for good behavior (Art. 284) c. As a penalty for the concubine in concubinage (Art. 334) d. In cases where after reducing the penalty by one or more degrees, destierro is the proper penalty. ART. 28: COMPUTATION OF PENALTIES Rules on Computation of Penalties: 1. When the offender is in prison – the duration of the temporary penalties (Permanent Absolute Disqualification, Temporary Absolute Disqualification, detention, suspension) is from the day on which the judgment of conviction becomes final. 2. When the offender is not in prison – the duration of the penalty of deprivation of liberty is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty 3. The duration of the other penalties – the duration is from the day on w/c the offender commences to serve his sentence NOTES: ƒ Reason for rule (a) – Under Art 24, the arrest and temporary detention of the accused is not considered a penalty. ƒ if in custody, the accused appealed, the service of the sentence should commence and a from the TIFF date ofQuickTime™ the promulgation of the (Uncompressed) decompressor are needed to see this picture. decision of the appellate court, not the trial court’s. ƒ Service in prison begins only on the day the judgment of conviction becomes final. ƒ In cases of temporary penalties, and if the offender is under detention (as when undergoing preventive imprisonment), rule (a) applies. ƒ If he is not under detention (released on bail), rule (c) applies.

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If offender is under preventive imprisonment, rule (c) applies, not rule (a). The offender is entitled to a deduction of the full time or 4/5 of the time of his detention.

ART. 29: PERIOD OF PREVENTIVE IMPRISONMENT DEDUCTED FROM TERM OF IMPRISONMENT Instances when accused undergoes preventive suspension: 1. offense is non-bailable 2. bailable but can’t furnish bail

Notes: ƒ The full time or 4/5 of the time during which the offenders have undergone preventive suspension shall be deducted from the penalty imposed: ƒ full time: if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners ƒ four-fifths of the time: if the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners ƒ In the case of a youthful offender who has been proceeded against under the Child and Youth Welfare Code, he shall be credited in the service of his sentence with the full time of his actual detention, regardless if he agreed to abide by the same disciplinary rules of the institution or not. ƒ Offenders not entitled to be credited with the full time or four-fifths of the time of their preventive imprisonment: ƒ Recidivists or those convicted previously twice or more times of any crime. ƒ Those who, upon being summoned for the execution of their sentence, failed to surrender voluntarily (convicts who failed to voluntarily surrender to serve their penalties under a final judgment, not those who failed or refused to voluntarily surrender after the commission of the crime) ƒ Habitual Delinquents are not entitled to credit of time under preventive imprisonment since he is necessarily a recidivist or has been convicted previously twice or more times of Page 35 of 174

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any crime. Duration of RP is to be computed at 30 years, thus, even if the accused is sentenced to life imprisonment, he is entitled to the full time or 4/5 of the time of preventive suspension Credit is given in the service of sentences consisting of deprivation of liberty (imprisonment and destierro), whether perpetual or temporal. Thus, persons who had undergone preventive imprisonment but the offense is punishable by a fine only would not be given credit. Destierro is considered a “deprivation of liberty.” If the penalty imposed is arresto menor to destierro, the accused who has been in prison for 30 days (arresto menor to 30 days) should be released because although the maximum penalty is destierro (6 months and 1 day to 6 years), the accused sentenced to such penalty does not serve it in prison.

Section Two. — Effects of the penaltiesaccording to their respective nature ART. 30: EFFECTS OF THE PENALTIES OF PERPETUAL OR TEMPORARY ABSOLUTE DISQUALIFICATION NOTES: ƒ The exclusion is a mere disqualification from protection, and not for punishment – the withholding of a privilege, not a denial of a right. ƒ Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence. ƒ Temporary absolute disqualification is effective during the term of sentence and is removed after the service of the same. Exceptions: (1) deprivation of the public office or employment; (2) loss of all rights to retirement pay or other pension for any office QuickTime™ and a formerly held. TIFF (Uncompressed) decompressor are not needed to see this picture. or contemplated ƒ A plebiscite is mentioned in Art.30, par. 2 (deprivation of the right to vote), hence, the offender may vote in that exercise, subject to the provisions of pertinent election laws at the time. Effects of Perpetual and temporary absolute disqualification: 1. Deprivation of any public office or employment of offender

2. Deprivation of the right to vote in any election or to be voted upon 3. Loss of rights to retirement pay or pension All these effects last during the lifetime of the convict and even after the service of the sentence except as regards paragraphs 2 and 3 of the above in connection with Temporary Absolute Disqualification.

ART. 31: EFFECT OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION ART. 32: EFFECT OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION FOR THE EXERCISE OF THE RIGHT OF SUFFRAGE NOTE: Temporary disqualification if imposed is an accessory penalty. Its duration is that of the principal penalty. Effects of Perpetual and Temporary Special Disqualification: 1. For public office, profession, or calling a. Deprivation of the office, employment, profession or calling affected b. Disqualification for holding similar offices or employment during the period of disqualification 2. For the exercise of the right of suffrage a. Deprivation of the right to vote or to be elected in an office b. Cannot hold any public office during the period of disqualification ART. 33: EFFECTS OF THE PENALTIES OF SUSPENSION FROM ANY PUBLIC OFFICE, PROFESSION OR CALLING, OR THE RIGHT OF SUFFRAGE Effects: 1. Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence 2. Cannot hold another office having similar functions during the period of suspension

ART 34: CIVIL INTERDCTION Page 36 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Effects;Deprivation of the following rights: 1. Parental rights 2. Guardianship over the ward 3. Marital authority 4. Right to manage property and to dispose of the same by acts inter vivos Civil Interdiction is an accessory penalty to the following principal penalties: 1. If death penalty is commuted to life imprisonment 2. Reclusion perpetua 3. Reclusion temporal *He can dispose of such property by will or donation mortis causa ART. 35: EFFECTS OF BOND TO KEEP THE PEACE

2. if the facts and circumstances of the case show that the purpose of the President is to precisely restore the rights i.e., granting absolute pardon after election to a post (mayor) but before the date fixed by law for assuming office to enable him to assume the position in deference to the popular will Pardon by the offended party – does not extinguish criminal liability; may include offended party waiving civil indemnity and it should be done before the institution of the criminal prosecution and extended to both offenders.

Crime covered

Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime. Bond to keep the peace or for good behavior is imposed as a penalty in threats. ART. 36: PARDON; ITS EFFECT NOTES: ƒ Pardon by the President does not restore the right to public office or suffrage except when both are expressly restored in the pardon. Nor does it exempt one from civil liability or from payment of civil indemnity. ƒ

Limitations to President’s power to pardon: o can be exercised only after final judgment o does not extend to cases of impeachment o does not extinguish civil liability – only criminal liability

QuickTime™ and a in general terms GENERAL RULE: Pardon granted TIFF (Uncompressed) decompressor are needed topenalties. see this picture. does not include accessory Exceptions: 1. if the absolute pardon is granted after the term of imprisonment has expired, it removes all that is left of the consequences of conviction. However, if the penalty is life imprisonment and after the service of 30 years, a pardon is granted, the pardon does not remove the accessory penalty of absolute perpetual disqualification

Extinguishment of criminal liability

PARDON BY THE CHIEF EXECUTIVE (ART. 36) Any crime, unless otherwise provided by or subject to conditions in the Constitution or the laws Extinguishes criminal liability

To whom granted

Cannot affect the civil liability ex delicto of the offender Only after conviction by final judgment Any or all of the accused

Whether it can be conditional

May absolute conditional

Effect on civil liability

When granted

be or

PARDON BY OFFENDED PARTY (ART. 23) Crimes against chastity under the RPC only

Does not extinguish criminal liability although it may constitute a bar to the prosecution of the offender Offended party can waive the civil liability Only before the institution of the criminal action In adultery and concubinage, must include both offenders Cannot validly be made subject to a condition

ART. 37: COST; WHAT ARE INCLUDED Costs include: 1. fees Page 37 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. indemnities, proceedings

in

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course

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judicial ƒ

NOTE: ƒ Costs (expenses of the litigation) are chargeable to the accused in case of conviction. In case of acquittal, the costs are de oficio, each party bearing his own expense. ƒ No costs are allowed against the Republic of the Philippines, until law provides the contrary. ƒ The payment of costs is fully discretionary on the Court. ART. 38: PECUNIARY LIABILITIES; ORDER OF PAYMENT Pecuniary liabilities of persons criminally liable, in the following order: 1. The reparation of the damage caused 2. Indemnification of the consequential damages 3. Fine 4. Costs of proceedings NOTES: ƒ It is applicable in case the properties of the offender are not sufficient for the payment of all his pecuniary liabilities. Hence, if the offender has insufficient or no property, there is no use for Art 38. ƒ Order of payment is mandatory. Ex. Juan inflicted serious physical injuries against Pedro and took the latter’s watch and ring. He incurred P500 worth of hospital bills and failed to earn P300 worth of salary. Given that Juan only has P1000 worth of property not exempt from execution, it shall first be applied to the payment of the watch and ring which cannot be returned, as such is covered by “reparation of the damage caused,” thus, no. 1 in the order of payment. The 500 and 300 are covered by “indemnification of the consequential damage,” thus, no. 2 in the QuickTime™ and a order of payment. TIFF (Uncompressed) decompressor are needed to see this picture.

ART. 39: SUBSIDIARY PENALTY NOTES: ƒ When the penalty prescribed 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

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subsidiary penalty should be imposed. There is no subsidiary penalty for nonpayment of reparation, indemnification and costs in par 1, 2 and 4 of Art 38. It is only for fines. Art 39 applies only when the convict has no property with which to meet the fine in par 3 of art 38. Thus, a convict who has nonexempt property enough to meet the fine cannot choose to serve the subsidiary penalty instead of payment of the fine. Subsidiary imprisonment is not an accessory penalty. It is covered by Arts. 40-45 of this Code. Accessory penalties are deemed imposed even when not mentioned, while subsidiary imprisonment must be expressly imposed.

RULES AS TO SUBSIDIARY PENALTY 1. If the penalty imposed is prisión correccional or arresto and fine – 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, not counted. 2. When the penalty imposed is fine only – subsidiary imprisonment is: ƒ not to exceed 6 months – if the culprit is prosecuted for grave or less grave felony, and ƒ not to exceed 15 days – if prosecuted for light felony. 3. When the penalty imposed is higher than prisión correccional – no subsidiary imprisonment. 4. If the penalty imposed is not to be executed by confinement, but of fixed duration – 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. 5. 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. WHERE NO SUBSIDIARY PENALTY SHALL BE IMPOSED: 1. The penalty imposed is higher than prisión correccional or 6 years, 2. For non-payment of reparation or indemnification, 3. For non-payment of costs, and 4. Where the penalty imposed is a fine and another penalty without fixed duration, like Page 38 of 174

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Section Three. — Penalties in which other accessory penalties are inherent

ART. 40: DEATH; ITS ACCESSORY PENALTIES ART. 41: RECLUSION PERPETUA AND RECLUSION TEMPORAL; THEIR ACCESSORY PENALTIES ART. 42: PRISION MAYOR; ITS ACCESSORY PENALTIES ART. 43: PRISION CORRECCIONAL; ITS ACCESSORY PENALTIES ART. 44: ARRESTO; ITS ACCESSORY PENALTIES Outline Of Accessory Penalties Inherent In Principal Penalties 1. Death, if not executed because of commutation or pardon a. perpetual absolute disqualification b. civil interdiction during 30 years (if not expressly remitted in the pardon) 2. Reclusion Perpetua and Reclusion Temporal a. civil interdiction for life or during the sentence b. perpetual absolute disqualification (unless expressly remitted in the pardon) 3. Prision Mayor a. temporary absolute disqualification b. perpetual special disqualification from suffage (unless expressly remitted in the pardon) 4. Prision Correccional a. suspension from public office, profession or calling b. perpetual special disqualification QuickTime™ and a TIFF (Uncompressed) from suffrage decompressor if the duration of the are needed to see this picture. imprisonment exceeds 18 months (unless expressly remitted in the pardon) NOTES: ƒ The accessory penalties in Art 40-44 must be suffered by the offender, although pardoned as to the principal penalties. To be relieved of these penalties, they must be expressly remitted in the pardon.

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No accessory penalty for destierro Persons who served out the penalty may not have the right to exercise the right of suffrage. For a prisoner who has been sentenced to one year of imprisonment or more for any crime, absolute pardon restores to him his political rights. If the penalty is less than one year, disqualification does not attach except if the crime done was against property. The nature of the crime is immaterial when the penalty imposed is one year imprisonment or more. The accessory penalties are understood to be always imposed upon the offender by the mere fact that the law fixes a certain penalty for the crime. The accessory penalties do not affect the jurisdiction of the court in which the information is filed because they do not modify or alter the nature of the penalty provided by law. What determines jurisdiction in criminal cases is the principal penalty. RECLUSION PERPETUA

LIFE IMPRISONMENT

Specific duration of 20 years and 1 day to 40 years and accessory penalties

no definite term or accessory penalties

Imposable on felonies punished by the RPC

Imposable on crimes punishable by special laws

ART. 45: CONFISCATION AND FORFEITURE OF THE PROCEEDS OR INSTRUMENTS OF THE CRIME 1. Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime. 2. The proceeds and instruments/tools of the crime are confiscated in favor of the government. rd 3. The property of 3 persons (not liable for the offense) is not subject to confiscation and Page 39 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 forfeiture. 4. Property not subject of lawful commerce (whether it belongs to the accused or a 3rd person) shall be destroyed. NOTES: ƒ There cannot be confiscation or forfeiture unless there’s a criminal case filed, tried and accused is convicted. ƒ Third person must be indicted to effect confiscation of his property. ƒ Instruments of the crime belonging to an innocent 3rd person may be recovered. ƒ Confiscation can be ordered only if the property is submitted in evidence or placed at the disposal of the court. ƒ When the order of forfeiture has already become final, the articles which were forfeited can not be returned, even in case of an acquittal. ƒ There must be conviction by final judgment. However, even if the accused is acquitted on reasonable doubt, but the instruments or proceeds are contraband, the judgment of acquittal shall order their forfeiture for appropriate disposition. ƒ Confiscation & forfeiture are additional penalties. When the penalty imposed did not include the confiscation of the goods involved, the subsequent confiscation & forfeiture of said goods would be an additional penalty, amounting to an increase of the penalty already imposed, thereby placing the accused in double jeopardy. In case the accused appeals, confiscation and forfeiture not ordered by the trial court may be imposed by the appellate court ƒ The government can not appeal the modification of a sentence if the defendant did not appeal. But if the defendant appeals, it removes all bars to the review and correction of the penalty imposed by the court below, even if an increase thereof should be the result QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

When Art. 45 cannot apply: 1. The instruments belong to innocent third parties 2. Such properties have not been placed under the jurisdiction of the court 3. When it is legally or physically impossible.

Chapter Four APPLICATION OF PENALTIES

Section One. — Rules for the application of penalties to the persons criminally liable and for the graduation of the same.

ART. 46: PENALTY TO BE IMPOSED UPON PRINCIPALS IN GENERAL GENERAL RULE: The penalty prescribed by law in general terms shall be imposed: 1. upon the principals 2. for consummated felony EXCEPTION: when the law fixes a penalty for the frustrated or attempted felony. Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not proportionate to the wrong done, the law fixes a distinct penalty for the principal in the frustrated or attempted felony. The Graduation Of Penalties Refers To: 1. By degree a. stages of execution (consummated, frustrated, attempted) b. degree of the criminal participation of the offender (principal, accomplice, accessory) 2. By period a. (minimum, medium, maximum) refers to the proper period of the penalty w/c should be imposed when aggravating or mitigating circumstances attend the commission of the crime

ART. 47: IN WHAT CASES THE DEATH PENALTY SHALL NOT BE IMPOSED Death Penalty Not Imposed In The Following Cases: 1. under age - when the offender is under 18 yrs of age at the time of commission. ƒ Why? - Because minority is always a mitigating circumstance 2. over age - when the person is more than 70 years old at time RTC sentenced him 3. no court majority - when upon appeal or Page 40 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 automatic review of the case by the SC, the vote of eight members is not obtained for the imposition of death JUSTIFICATION FOR THE DEATH PENALTY: social defense and exemplarity. Not considered cruel and unusual because it does not involve torture or lingering death. CRIMES PUNISHABLE BY DEATH UNDER THE DEATH PENALTY LAW (RA 7659) 1. Treason 2. Qualified Piracy 3. Qualified Bribery 4. Parricide 5. Murder 6. Infanticide 7. Kidnapping and Serious Illegal Detention 8. Robbery – with Homicide, Rape, Intentional Mutilation, or Arson 9. Rape – with the use of a deadly weapon, or by two or more persons - where the victim became insane - with Homicide 10. Qualified Rape 11. Destructive Arson 12. Plunder 13. Violation of certain provisions of the Dangerous Drugs Act 14. Carnapping

ART.48: PENALTY FOR COMPLEX CRIMES COMPLEX CRIME – although there actually are two or more crimes, the law treats them as constituting only one- as there is only one criminal intent. Only one information need be filed. 2 Kinds Of Complex Crimes: 1. compound crime – single act constitutes 2 or more grave or less grave felonies Requisites: QuickTime™ and a TIFFonly (Uncompressed) decompressor a. that one single act is performed are needed to see this picture. by the offender b. that the single act produces i. 2 or more grave felonies ii. one or more grave and one or more less grave felonies iii. 2 or more less grave felonies 2. complex crime proper – when an offense is a necessary means for committing another

Requisites: 1. that at least 2 offenses are committed 2. that one or some of the offenses must be necessary to commit the other 3. that both or all the offenses must be punished under the same statute No Single Act In The Following Cases: 1. when 2 persons are killed one after the other, by different acts, although these 2 killings were the result of a single criminal impulse. The different acts must be considered as distinct crimes. 2. when the acts are wholly different, not only in themselves, but also because they are directed against 2 different persons, as when one fires his gun twice in succession, killing one and injuring the other. Light felonies produced by the same act should be treated and punished as separate offenses, or may be absorbed by the grave felony. NOTES: ƒ When in obedience to an order, several accused simultaneously shot many persons, w/o evidence how many each killed, there is only a single offense, there being a single criminal impulse. ƒ For the attainment of a single purpose w/c constitutes an offense, various acts are executed, such acts must be considered only as one offense. (Gregorio does not agree with this.) ƒ When a complex crime is charged and one offense is not proven, the accused can be convicted of the other. ƒ There is no complex crime of arson w/ homicide. ƒ Art 48 is applicable to crimes through negligence. ƒ Kidnapping the victim to murder him in a secluded place – ransom wasn’t paid so victim was killed. Kidnapping was a necessary means to commit murder. But where the victim was taken from his home but it was solely for the purpose of killing him and not for detaining him illegally or for the purpose of ransom, the crime is simple murder. ƒ “Necessary means” does not mean “indispensable means”. Indispensable would mean it is an element of the crime. The crime can be committed by another mean. Page 41 of 174

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The means actually employed (another crime) was merely to facilitate and insure the consummation of the crime. It is not a complex crime when trespass to dwelling is a direct means to commit a grave offense. Like rape, there is no complex crime of trespass to dwelling with rape. Trespass will be considered as aggravating (unlawful entry or breaking part of a dwelling) When the offender had in his possession the funds w/c he misappropriated, the falsification of a public or official document involving said funds is a separate offense. But when the offender had to falsify a public or official document to obtain possession of the funds w/c he misappropriated, the falsification is a necessary means to commit the malversation. There is no complex crime of rebellion w/ murder, arson, robbery or other common crimes. They are mere ingredients of the crime of rebellion – absorbed already. (according to Ortega, complex) When 2 crimes produced by a single act are respectively within the exclusive jurisdiction of 2 courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. Art. 48 is intended to favor the culprit. The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. If the different crimes resulting from one single act are punished w/ the same penalty, the penalty for any one of them shall be imposed, the same to be applied in the maximum period. The same rule shall be observed when an offense is a necessary means to commit the other. A complex crime of the second form may be committed by two persons. But when one of the offenses, as a means to commit the other, was committed by one of the accused by reckless imprudence, the accused who committed the crime by reckless imprudence is liable for his acts QuickTime™ and a TIFF (Uncompressed) decompressor only. are needed to see this picture. When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment shall be imposed. Reason: Fine is not included in the list of penalties in the order of severity and it is the last in the graduated scales in Art. 71. When a single act constitutes two grave or less grave or one grave and another less grave, and the penalty for one is

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imprisonment while that for the other is fine, the severity of the penalty for the more serious crime should not be judged by the classification of each of the penalties involved, but by the nature of the penalties. In the order of severity of the penalties, arresto mayor and arresto menor are considered more severe than destierro and arresto menor is higher in degree than destierro.

There is NO COMPLEX CRIME in the following: 1. In case of continuing crimes 2. When one offense is committed to conceal the other 3. When the other crime is an indispensable part or an element of the other offenses as defined 4. Where one of the offenses is penalized by a special law 5. When the law provides one single penalty for special complex crime: a. Robbery with Homicide b. Robbery with Rape c. Rape with Homicide d. Kidnapping with Serious Physical Injuries e. Kidnapping with Homicide PLURALITY OF CRIMES – consists in the successive execution by the same individual of different criminal acts upon any of which no conviction has yet been declared. Kinds Of Plurality Of Crimes: 1. Formal or Ideal – only one criminal liability. Formal or ideal crimes are further divided into three groups, where a person committing multiple crimes is punished with only one penalty: a. when the offender commits any of the complex crimes defined in Art. 48 b. when the law specifically fixes a single penalty for 2 or more offenses committed: robbery w/ homicide, kidnapping w/ serious physical injuires c. when the offender commits continued crimes 2. Real Or Material – there are different crimes in law as well as in the conscience of the offender. In such cases, the offender shall be punished for each and every offense that he committed.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART 49 Lesser penalty to be imposed in its maximum period

ART 48 Penalty for the more serious crime shall be imposed in its maximum period

CONTINUED CRIME – refers to a single crime consisting of a series of acts but all arising from one criminal resolution. Although there is a series of acts, there is only one crime committed, so only one penalty shall be imposed. Ex of continued crimes: a. A collector of a commercial firm misappropriates for his personal use several amounts collected by him from different persons. There is only one crime because the different and successive appropriations are but the different moments during w/c one criminal resolution arises. b. Juan steals 2 books belonging to 2 different persons. He commits only one crime because there is unity of thought in the criminal purpose of the offender. NOTE: A continued crime is not a complex crime, as the offender does not perform a single act but a series of acts. Therefore: a. penalty not to be imposed in the maximum b. no actual provision punishing continued crime – It is a principle applied in connection with 2 or more crimes committed with a single intention. NOTE: A continued (continuous or continuing) crime is different from a transitory crime. Transitory crime is “moving crime”.

REAL/MATERIAL PLURALITY There is a series of acts performed by the offender

CONTINUED CRIME Same

Each act performed constitutesQuickTime™ Different and aacts constitute TIFF (Uncompressed) decompressor are needed toonly see this picture. a separate crime because one crime because each act is generated by a all of the acts performed criminal impulse arise from one criminal resolution.

ART. 49: PENALTY TO BE IMPOSED UPON THE PRINCIPALS WHEN THE CRIME COMMITTED IS DIFFERENT FROM THAT INTENDED

PLURALITY OF CRIMES No conviction of the crimes committed

RECIDIVISM There must be conviction by final judgment of the first prior offense

RULES: 1. If the penalty for the felony committed be higher than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. 2. If the penalty for the felony committed be lower than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. 3. If the act committed also constitutes an attempt or frustration of another crime, and the law prescribes a higher penalty for either of the latter, the penalty for the attempted or frustrated crime shall be imposed in its maximum period. NOTES: ƒ Art. 49 has reference to the provision in the st 1 par of Art .4 which provides that criminal liability shall be incurred “by any person committing a felony although the wrongful act done be different from that which he intended.” ƒ Art. 49 is applicable only in cases when there is a mistake in identity of the victim of the crime (error in personae) and the penalty for the crime committed is different from that for the crime intended to be committed. ƒ Art. 49 also has no application where a more serious consequence not intended by the offender befalls the same person. ƒ In Art. 49, pars. 1 and 2, the lower penalty in its maximum period is always imposed. ƒ In Par. 3 the penalty for the attempted or frustrated crime shall be imposed in its maximum period. This rule is not necessary and may well be covered by Art. 48, in view of the fact that the same act also constitutes an attempt or a frustration of another crime.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Art. 50: Penalty to be imposed upon principals of a frustrated crime Art. 51: Penalty to be imposed upon principals of attempted crimes Art. 52: Penalty to be imposed upon accomplices in consummated crime Art. 53: Penalty to be imposed upon accessories to the commission of a consummated felony Art. 54: Penalty to imposed upon accomplices in a frustrated crime Art. 55: Penalty to be imposed upon accessories of a frustrated crime Art. 56: Penalty to be imposed upon accomplices in an attempted crime Art. 57: Penalty to be imposed upon accessories of an attempted crime

APPLICATION OF ARTICLE 50 TO 57 Participation

Consummated

Frustrated

Attempted

Principal

1 less

2 less

Accomplice

Penalty imposed by law 1 less

2 less

3 less

Accessory

2 less

3 less

4 less

NOTES: ƒ Art. 50-57 are not applicable when the law specifically prescribes the penalty for the frustrated and attempted felony or that to be imposed upon the accomplices and accessories. (examples: qualified seduction, flight to enemy country, kidnapping) ƒ Degree – one whole penalty, one entire penalty or one unit of the penalties enumerated in the graduated scales provided for in Art. 71 ƒ Period – one of 3 equal portions, min/med/max of a divisible penalty. A period of a divisible penalty when prescribed by the QuickTime™ and a (Uncompressed) Code as aTIFF penalty for decompressor a felony, is in itself a are needed to see this picture. degree.

Distinctions between Degree and Period Degree

Period

Refers to the penalty imposable for a felony committed considering the stages of execution and the degree of participation of the offender

Refers to the duration of the penalty consisting of the maximum, medium, and minimum, after considering the presence or absence of aggravating circumstances

May refer to both divisible and indivisible penalties

Refers only divisible penalties

to

NOTE: The rules provided in Arts. 53, 55 and 57 do not apply if the felony is light because accessories are not liable for the same. ART. 58: ADDITIONAL PENALTY TO BE IMPOSED UPON CERTAIN ACCESSORIES NOTE: Art. 58 is limited only to grave and less grave felonies since it is not possible to have accessories liable for light felonies. It is further limited to those whose participation in the crime is characterized by the misuse of public office or authority. Additional Penalties for Public Officers who are accessories: 1. Absolute Perpetual Disqualification, if the principal offender is guilty of a grave felony 2. Absolute temporary disqualification, if the principal offender is guilty of less grave felony

ART. 59: PENALTY TO BE IMPOSED IN CASE OF FAILURE TO COMMIT THE CRIME BECAUSE THE MEANS EMPLOYED OR THE AIMS SOUGHT ARE IMPOSSIBLE NOTES: ƒ Basis for the imposition of proper penalty in impossible crimes: social danger and degree of criminality shown by the offender ƒ The penalty for impossible crime is arresto mayor (imprisonment of 1 month and 1 day to 6 months) or fine ranging from 200-500 pesos. ƒ Art. 59 is limited to grave and less grave Page 44 of 174

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felonies. However, considering Article 4, this article is actually limited to offenses against persons or property.

ART. 60: EXCEPTION TO THE RULES ESTABLISHED IN ARTICLES 50 TO 57 Two cases where the accomplice is punished with the same penalty imposed upon the principal: 1. 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. 2. one who furnished the place for the perpetration of the crime of slight illegal detention NOTE: Accessory punished as principal: Art 142 – punishes an accessory for knowingly concealing certain evil practices

Cases where penalty imposed on accessories are one degree lower instead of two degrees: 1. knowingly using counterfeited seal or forged signature or stamp of the President of the Republic 2. illegal possession and use of false treasury or bank note 3. use of a falsified document 4. use of a falsified dispatch

ART. 61: RULES FOR GRADUATING PENALTIES The rules provided in this Article should also apply in determining the minimum of the Indeterminate Sentence Law (ISL). It also applies in lowering the QuickTime™ a penalty by one orTIFFtwo degreesand by reason of the (Uncompressed) decompressor are neededmitigating to see this picture.circumstance, or presence of the privileged when the penalty is divisible and there are two or more mitigating circumstances and there are no aggravating circumstances. GRADUATED SCALE IN ART. 71 Indivisible Penalties: 1. Death 2. Reclusion Perpetua

Divisible Penalties: (maximum, minimum) 1. Reclusion Temporal 2. Prision Correcional 3. Arresto Mayor 4. Destierro 5. Arresto Menor 6. Public Censure 7. Fine

medium,

RULES TO BE OBSERVED IN LOWERING THE PENALTY BY ONE OR TWO DEGREES Rule No. 1: when the penalty is single and indivisible (ex. RP), the penalty next lower shall be reclusion temporal. Rule No. 2: 1. when the penalty is composed of two indivisible penalties; or 2. when the penalty is composed 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 Rule No. 3: when the penalty is composed of 1 or 2 indivisible penalties and the maximum period of a divisible penalty Ex. penalty for murder is reclusion temporal to death. The point of reference will be on the proper divisible penalty which is RT. rd

Under the 3 rule, the penalty next lower to RT is composed of the medium and minimum periods of RT and the max of prision mayor. Rules 4 and 5: 1. if the penalty prescribed in the Code consists of three periods corresponding to different divisible penalties, the penalty next lower is that consisting in the three periods down the scale 2. if the penalty prescribed in the Code consists of two periods, the penalty next lower is that consisting in two periods down the scale 3. if the penalty prescribed in the Code consists in only one period, the penalty next lower is the next period down in the scale NOTE: Mitigating and Aggravating circumstances are first disregarded in the application of the rules for graduating penalties. It is only after the penalty next lower in degree is already determined that the mitigating and aggravating circumstances should be Page 45 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 considered.

Habitual delinquency has the effect, not only of increasing the penalty because of recidivism which is generally implied in habitual delinquency, but also of imposing an additional penalty. Ten year period to be computed from the time of last release or conviction Subsequent crime must be committed after conviction of the former crime. Cases still pending are not to be taken into consideration. o

ART. 62: EFFECT OF THE ATTENDANCE OF MITIGATING OR AGGRAVATING CIRCUMSTANCES AND OF HABITUAL DELINQUENCY

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Par. 1: Aggravating circumstances are not to be taken into account when: 1. they themselves constitute a crime. Ex. by “means of fire” – arson 2. they are included by law in the definition of a crime Par. 2: Same rules apply when the aggravating circumstance is inherent in the crime Par. 3: Aggravating or mitigating circumstances arising from any of the following affect only those to whom such circumstances are attendant: 1. from the moral attributes of the offender 2. from his private relations w/ the offended party 3. from any other personal cause Par. 4: the circumstances which consist of the following shall serve to aggravate and mitigate the liability only of those who had knowledge of them at the time of the commission of the offense 1. material execution of the act 2. means employed to accomplish the crime Par. 5: Habitual Delinquent is a person who within the period of 10 years from the date of his (last) release or last conviction of the crimes of: 1. Falsification 2. Robbery 3. Estafa 4. Theft 5. Serious or less serious physical injuries is found guilty of any of the said crimes a third time or oftener. QuickTime™ and a

TIFF (Uncompressed) decompressor NOTES: are needed to see this picture. ƒ Effects of the circumstances: o Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without however exceeding the maximum period provided by law. o Mitigating circumstances have the effect of diminishing the penalty.

HABITUAL DELINQUENCY Crimes to be committed are specified

RECIDIVISM Same title

W/ in 10 years

No time fixed by law

Must be found guilty 3rd time or oftener

Second conviction

Additional penalty is imposed

Is not offset by MC, increases penalty to maximum

REQUISITES Of Habitual Delinquency: 1. that the offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification 2. that after conviction or after serving his sentence, he again committed, and, within 10 years from his last release of first conviction, he was again convicted of any of the said crimes for the second time 3. that after his conviction of, or after serving sentence for the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener Rulings on Habitual Delinquency: 1. The law on habitual delinquency does not contemplate the exclusion from the computation of prior conviction those falling outside the 10-year period immediately preceding the crime for which the defendant is being tried. 2. Ten-year period is counted not from the date of commission of the subsequent offense but from the date of conviction thereof in relation Page 46 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

3.

4. 5. 6. 7. 8. 9. 10. 11. 12.

13. 14. 15. 16.

to the date of his last release or last conviction. When an offender has committed several crimes mentioned in the definition of habitual delinquent, without being first convicted of any of them before committing the others, he is not a habitual delinquent. Convictions on the same day or at about the same time are considered as one only (days, weeks..). Crimes committed on the same date, although convictions on different dates are considered as one. Previous convictions are considered every time a new offense is committed. Commissions of those crimes need not be consummated. Habitual delinquency applies to accomplice and accessories. A crime committed during the minority of the offender is not counted because proceedings as regards that crime are suspended. Imposition of additional penalty is mandatory and constitutional. Modifying circumstances are applicable to additional penalty. Habitual delinquency is not a crime. It is simply a fact or circumstance which if present gives rise to the imposition of additional penalty. Penalty for habitual delinquency is a real penalty that determines jurisdiction. A habitual delinquent is necessarily a recidivist. In imposing the additional penalty, recidivism is not aggravating. The additional penalty must be imposed in its minimum. An offender can be a habitual delinquent without being a recidivist, when no two of the crimes committed are embraced in the same title of the Code. (Reyes)

NOTES: ƒ In no case shall the total penalties imposed upon the offender exceed 30 years. QuickTime™ and a TIFF (Uncompressed) decompressor ƒ The imposition of the additional penalties on are needed to see this picture. habitual delinquents are constitutional, it is simply a punishment on future crimes on account of the criminal propensities of the accused. ƒ The imposition of such additional penalties are mandatory. ƒ 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

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commits a consummated crime. Habitual delinquency 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.

ART. 63: RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES Rules for the application of indivisible penalties: 1. Penalty is single and indivisible – applied regardless of the presence of aggravating and mitigating circumstances 2. Penalty composed of two indivisible penalties a. One aggravating circumstance present – higher penalty b. One mitigating circumstance present – lower penalty c. Some mitigating circumstances present and no aggravating – lower penalty d. Mitigating and Aggravating Circumstances are present – basis in number and importance NOTES: ƒ Art 63 applies only when the penalty prescribed by the Code is either one indivisible penalty or 2 indivisible penalties. ƒ Par.4: the moral value rather than the numerical weight shall be taken into account. GENERAL RULE: When the penalty is composed of 2 indivisible penalties, the penalty cannot be lowered by one degree, no matter how many mitigating circumstances are present EXCEPTION: In cases of privileged mitigating circumstances

ART. 64: RULES FOR THE APPLICATION OF PENALTIES WHICH CONTAIN THREE PERIODS Rules For The Application Of Divisible Penalties: 1. No aggravating and no mitigating circumstances – medium period 2. One mitigating circumstance – minimum period 3. One aggravating circumstance – maximum period 4. Mitigating and aggravating circumstance offset each other and according to relative Page 47 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 weight 5. 2 or more mitigating without any aggravating circumstance – one degree lower NOTES: ƒ Art. 64 applies when the penalty has 3 periods because they are divisible. If the penalty is composed of 3 different penalties, each forms a period according to Art. 77 ƒ Par. 4: the mitigating circumstances must be ordinary, not privileged. The aggravating circumstances must be generic or specific, not qualifying or inherent. ƒ the court has discretion to impose the penalty within the limits fixed by law ƒ Art. 64 not applicable when the penalty is indivisible or prescribed by special law or a fine ƒ Cases where the attending aggravating or mitigating circumstances are not considered in the imposition of penalties: ƒ Penalty that is single and indivisible ƒ Felonies through negligence ƒ Where the penalty is only a fine imposed by an ordinance (subject to discretion of court – see Article 66) ƒ Penalty is prescribed by a special law ART. 65: RULE IN CASES IN WHICH THE PENALTY IS NOT COMPOSED OF THREE PERIODS Computations: Example: Prision Mayor (6 years, 1 day to 12 years) 1. subtract the minimum (disregard 1 day) from the maximum 12 years – 6 years = 6 years 2. Divide the difference by 3. 6 years / 3 = 2 years 3. Use the minimumQuickTime™ (6 years and aand 1 day) as the TIFF (Uncompressed) decompressor minimum of the minimum period. Then add are needed to see this picture. the 2 years (disregarding the 1 day) to the minimum to get the maximum of the minimum period. 6 years (minimum of the minimum) + 2 years (difference) ------------------------------------------8 years (maximum of the minimum). Therefore, minimum period of prision mayor = 6 years 1 day to 8 years

4. Use the maximum of the minimum period as the minimum of the medium period and add 1 day to distinguish from the minimum period. Then add 2 years to the minimum of the medium (disregarding the 1 day) to get the maximum of the medium period. 8 years (minimum of the medium) + 2 years (difference) ------------------------------------------10 years (maximum of the medium) Therefore, medium period of prision mayor = 8 years 1 day to 10 years 5. use the maximum of the medium period as the minimum of the maximum pd, and add 1 day to distinguish it from the maximum of the medium period. Then add 2 years to the minimum of the maximum pd (disregarding the 1 day) to get the maximum of the maximum period) 10 years (maximum of the medium) + 2 years (difference) ---------------------------------------------12 years (maximum of the maximum) Therefore, maximum period of prision mayor = 10 years 1 day to 12 years *Computation above is applicable to all others except to arresto mayor.

Example: Prision Mayor minimum (6 years 1 day to 8 years) only 1. Subtract minimum from the maximum. 8 years – 6 years = 2 years 2. Divide the difference by 3. 2 years / 3 = 8 months 3. Use the minimum of the given example as the minimum period. Then to get to get the maximum of the minimum, add the 8 months. 6 years + 8 months = 6 years and 8 months Therefore, minimum of prision mayor minimum = 6 years 1 day to 6 years 8 months 4. Use the maximum of the minimum as the minimum of the medium period. Add 1 day to distinguish it from the maximum of the minimum. Add the 8 months and this Page 48 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 becomes the maximum of the medium 6 years 8 months + 8 months = 7 years 4 months Therefore, the medium period of prision mayor minimum = 6 years, 8 months 1 day to 7 years, 4 months 5. Use the maximum of the medium as the minimum period of the maximum period and add 1 day to distinguish. Add the 8 months to get the maximum of this maximum 7 years 4, months + 8 months = 8 years Therefore, maximum of prision mayor = 7 years, 4 months, 1 day to 8 years

ART. 66: IMPOSITION OF FINES

1. The court can fix any amount of the fine within the limits established by law. 2. Court must consider the following in imposing the fines: a. mitigating and aggravating circumstances b. more particularly, the wealth and means of the culprit 3. The following may also be considered by the court: a. the gravity of the crime committed b. the heinousness of its perpetration c. the magnitude of its effects on the offender’s victims.

NOTE: When the minimum of the fine is not fixed, the court shall have the discretion, provided it does not exceed the amount authorized by law.

2. less grave felony – arresto mayor min to arresto mayor medium

ART. 68: PENALTY TO BE IMPOSED UPON A PERSON UNDER EIGHTEEN YEARS OF AGE NOTE: Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible, in which case he shall be returned to the court for the imposition of the proper penalty. Art. 68 provides for 2 privileged mitigating circumstances: 1. If the act is attended by two or more mitigating circumstances and no aggravating circumstance, the penalty being divisible, a minor over 15 but under 18 may still get a penalty two degrees lower. 2. under 15 but over 9 and has acted w/ discretion: 2 degrees lower 3. under 18 but over 15: 1 degree lower

ART. 69: PENALTY TO BE IMPOSED WHEN THE CRIME COMMITTED IS NOT WHOLLY EXCUSABLE NOTE: Penalty to be imposed when the crime committed is not wholly excusable:1 or 2 degrees lower if the majority of the conditions for justification or exemption in the cases provided in Arts. 11 and 12 are present.

ART. 70: SUCCESSIVE SERVICE OF SENTENCE ART. 67: PENALTY TO BE IMPOSED WHEN NOT ALL THE REQUISITES OF EXEMPTION OF THE FOURTH CIRCUMSTANCE OF ARTICLE 12 ARE PRESENT

are needed Requisites of Art. 12, par. to4:see this picture. 1. act causing the injury must be lawful 2. act performed w/ due care 3. injury was caused by mere accident 4. no fault or intention to cause injury

NOTES: The Three-Fold Rule 1. Maximum duration of the convict’s sentence: 3 times the most severe penalty imposed 2. Maximum duration: shall not exceed 40 yrs 3. Subsidiary imprisonment: This shall be excluded in computing for the maximum duration. * The three-fold rule shall apply only when the convict is to serve 4 or more sentences successively.

NOTE: If these conditions are not all present, then the following penalties shall be imposed: 1. grave felony – arresto mayor max to prision correcional minimum

Different Systems Of Penalty (Relative To The Execution Of Two Or More Penalties Imposed The Same Accused) 1. Material accumulation system - No

QuickTime™ and a TIFF (Uncompressed) decompressor

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 limitation whatsoever, and accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life. 2. Juridical accumulation system - Limited to not more than three-fold the length of time corresponding to the most severe and in no case to exceed 40 years. This is followed in our jurisdiction. 3. Absorption system - The lesser penalties are absorbed by the graver penalties.

ART. 71: GRADUATED SCALES

ART. 72: PREFERENCE IN THE PAYMENT OF THE CIVIL LIABILITIES

To get the lower degree: 1. Max: reduce by one-fourth 2. Min: the same ART. 76: LEGAL PERIOD OF DURATION OF DIVISIBLE PENALTIES ART. 77: WHEN THE PENALTY IS A COMPLEX ONE COMPOSED OF THREE DISTINCT PENALTIES NOTE: If there are 3 distinct penalties; there shall be a minimum, a medium and a maximum. Ex: Reclusion temporal max to death

Chapter Five EXECUTION AND SERVICE OF PENALTIES

NOTE: The penalties shall be satisfied according to the chronological order of the dates of the final judgment. (Art. 70) Section One. — General Provisions Section Three. — Provisions common in the last two preceding sections

ART. 73: PRESUMPTION IN REGARD TO THE IMPOSITION OF ACCESSORY PENALTIES NOTE: Accessory penalties are deemed imposed with the principal penalty. However, the subsidiary imprisonment must be expressly stated in the decision, as it is not considered an accessory penalty.

ART. 74: PENALTY HIGHER THAN RECLUSION PERPETUA IN CERTAIN CASES NOTE: If the decision or law says higher than QuickTime™ and a reclusion perpetua TIFF or (Uncompressed) 2 degreesdecompressor higher than reclusion are needed to see this picture. temporal, then the penalty imposed is reclusion perpetua or reclusion temporal as the case may be, and not death. Death must be designated by name. However, for the other penalties, this does not apply.

ART. 78: WHEN AND HOW A PENALTY IS TO BE EXECUTED NOTES: ƒ Only a penalty by final judgment can be executed. Judgment is final if the accused has not appealed within 15 days or he has expressly waived in writing that he will not appeal. ƒ There could be no subsidiary liability if it was not expressly ordered in the judgment. ART. 79: SUSPENSION OF THE EXECUTION AND SERVICE OF THE PENALTIES IN CASE OF INSANITY Cases of insanity: 1. After final sentence, suspend the sentence regarding the personal penalties. 2. If he recovers, the sentence is executed unless it has prescribed. 3. The payment of civil of pecuniary liabilities shall not be suspended.

Ex: the penalty for crime X is 2 degrees lower than RP. The penalty imposed is prision mayor.

ART. 75: INCREASING OR REDUCING THE PENALTY OF FINE BY ONE OR MORE DEGREES

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 INDETERMINATE SENTENCE LAW Act No. 4103 as amended by Act No. 4225

- It applies to both violations of Revised Penal Code and special laws, and is based on the penalty actually imposed. Indeterminate sentence is mandatory where imprisonment would exceed one year. IF THE PENALTY IS IMPOSED BY THE RPC: 1. The Maximum Term – is that which could be properly imposed under the RPC, considering the aggravating and mitigating circumstances. 2. The MinimumTerm – is within the range of the penalty one degree lower than that prescribed by the RPC, without considering the circumstances. ƒ BUT when there is a privileged mitigating circumstance, so that the penalty has to be lowered by one degree, the STARTING POINT for determining the minimum term of the indeterminate penalty is the penalty next lower than that prescribed by the Code for the offense. IF THE PENALTY IS IMPOSED BY SPECIAL PENAL LAW 1. The Maximum Term – must not exceed the maximum term fixed by said law. 2. The Minimum Term – must not be less than the minimum term prescribed by the same. ƒ

For SPECIAL LAWS, it is anything within the inclusive range of the prescribed penalty. Courts are given discretion in the imposition of the indeterminate penalty. The aggravating and mitigating circumstances are not considered unless the special law adopts the same terminology for penalties as those used in the RPC (such as reclusión perpetua and the like).

WHEN BENEFIT OF THE ISL IS NOT APPLICABLE: QuickTime™ and a The IndeterminateTIFF Sentence shall not apply (Uncompressed)Law decompressor are needed to see this picture. to the following persons: 1. sentenced to death penalty or life imprisonment 2. treason, or conspiracy or proposal to commit treason 3. misprision of treason, rebellion, sedition or espionage 4. piracy 5. habitual delinquents 6. escaped from confinement, or evaded

sentence 7. granted with conditional pardon by the President, but violated the terms thereof 8. maximum term of imprisonment does not exceed 1 year 9. sentenced to the penalty of destierro or suspension only RELEASE OF THE PRISONER ON PAROLE The Board of Pardons and Parole may authorize the release of a prisoner on parole, after he shall have served the minimum penalty imposed on him, provided that: 1. Such prisoner is fitted by his training for release, 2. There is reasonable probability that he will live and remain at liberty without violating the law, 3. Such release will not be incompatible with the welfare of society. ENTITLEMENT TO FINAL RELEASE AND DISCHARGE If during the period of surveillance such paroled prisoner shall: (a) show himself to be a law abiding citizen and, (b) shall not violate any law, the Board may issue a final certification in his favor, for his final release and discharge. SANCTION FOR VIOLATION OF CONDITIONS OF THE PAROLE When the paroled prisoner shall violate any of the conditions of his parole: (a) the Board may issue an order for his arrest, and thereafter, (b) the prisoner shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison. REASONS FOR FIXING THE MAXIMUM AND MINIMUM TERMS IN THE INDETERMINATE SENTENCE The minimum and maximum terms in the IS must be fixed, because they are the basis for the following: 1. Whenever a prisoner has: (a) served the MINIMUM penalty imposed on him, and (b) is fit for release of the prisoner on parole, upon terms and conditions prescribed by the Board. 2. But when the paroled prisoner violates any of the conditions of his parole during the period of surveillance, he may be rearrested to serve the remaining unexpired portion of the MAXIMUM sentence. 3. Even if a prisoner has already served the MINIMUM, but he is not fitted for release on the parole, he shall continue to serve until the end of the MAXIMUM term. Page 51 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 80: SUSPENSION OF SENTENCE OF MINOR DELINQUENTS (AS REPEALED BY PD 603: CHILD AND YOUTH WELFARE CODE)

1. Youthful offender – over 9 but under 18 at time of the commission of the offense 2. A child nine years of age or under at the time of the commission of the offense shall be exempt from criminal liability and shall be committed to the care of his or her father or mother, or nearest relative or family friend in the discretion of the court and subject to its supervision. 3. The same shall be done for a child over nine years and under fifteen years of age at the time of the commission of the offense, unless he acted with discernment, in which case he shall be proceeded against in accordance with Article 192. 4. A youthful offender held for examination or trial who cannot furnish bail will be committed to the DSWD/local rehabilitation center or detention home. 5. If the court finds that the youthful offender committed the crime charged against him, it shall determine the imposable penalty and the civil liability chargeable against him, but it may not pronounce judgment of conviction. Instead, the court shall suspend all further proceedings if, upon application of the youthful offender, it finds that the best interest of the public and that of the offender will be served thereby. EXCEPTIONS to suspension of sentence a. those who previously enjoyed a suspension of sentence b. those convicted of death or life imprisonment c. those convicted for an offense by the military tribunals 6. The youthful offender shall be returned to the QuickTime™ andof a judgment, when court for pronouncement TIFF (Uncompressed) decompressor needed to see this picture. the youthfulareoffender, (1) has been found incorrigible, or (2) has willfully failed to comply with the conditions of his rehabilitation programs; or (3) when his continued stay in the training institution would be inadvisable. 7. When the youthful offender has reached the age of twenty one while in commitment, the court shall determine whethera. To dismiss the case, if the youthful

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offender has behaved properly and has shown his capability to be a useful member of the community; or b. To pronounce the judgment of conviction, if the conditions mentioned are not met. In the latter case, the convicted offender may apply for probation. In any case, the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention. The final release of a youthful offender, based on good conduct as provided in Art. 196 shall not obliterate his civil liability for damages. A minor who is ALREADY AN ADULT at the time of his conviction is not entitled to a suspension of sentence. The records of the proceeding shall be privileged and shall not be disclosed. The civil liability of the youthful offender may be voluntarily assumed by a relative or a friend. The parent or guardian of the child is liable when he aids, abets or connives for the commission of the crime or does an act producing, promoting or contributing to the child’s being a juvenile delinquent. penalties for the parent or guardian: Fine not exceeding P500 and/or imprisonment not exceeding 2 years

PROBATION LAW OF 1976 (PD 968, AS AMENDED)

PROBATION - a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer RULES ON GRANT OF PROBATION 1. After having convicted and sentenced a defendant, the trial court may suspend the execution of the sentence, and place the defendant on probation, upon application by the defendant within the period for perfecting an appeal. 2. Probation may be granted whether the sentence imposed a term of imprisonment or fine only. 3. No application for probation shall be entertained or granted if the defendant has Page 52 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 perfected an appeal. 4. Filing of application for probation operates as a waiver of the right to appeal. 5. The order granting or denying probation shall not be appealable. 6. Accessory penalties are deemed suspended once probation is granted. 7. The convict is not immediately placed on probation. There shall be a prior investigation by the probation officer and a determination by the court. 8. CRITERIA FOR grant of probation: a. All information relative to the character, antecedents, environment, mental, and physical condition of the offender b. Available institutional and community resources. 9. Probation is to be denied upon finding of the court that: a. The offender is in need of correctional treatment that can be provided effectively by his commitment to an institution. b. There is undue risk of committing another crime. c. Probation will depreciate the seriousness of the offense committed. 10. At any time during probation, the court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of probation. If violation is established, the court may: a. revoke his probation, and thus make him serve the sentence originally imposed, or b. continue his probation and modify its conditions The court order shall not be subject to appeal. 11. Probation is not coterminous with its period. There must be an order issued by the court discharging the probationer. Upon finding that he has fulfilled the terms and QuickTime™ and a decompressorthe court may conditions TIFF of (Uncompressed) his probation, are needed to see this picture. order the final discharge of the probationer. This shall have the following effects: a. case is deemed terminated b. all civil rights lost or suspended are restored c. offender’s liability for any fine imposed is discharged

WHO ARE DISQUALIFIED FROM THE BENEFITS OF PROBATION: 1. Sentenced to serve a maximum term of imprisonment of more the 6 years 2. Convicted of subversion or any crime against the national security or the public order 3. Previously convicted by final judgment of an offense punished by imprisonment of not less than 1 month and 1 day and/or a fine not less than P200 4. Already placed on probation once There are two kinds of conditions imposed upon the offender under probation: 1. Mandatory or general – once violated, the probation is cancelled a. The offender under probation must present 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. b. He should report to the probation officer at least once a month. 2. Discretionary or special – additional conditions which the court may additionally impose for the probationer’s correction and rehabilitation outside prison. The enumeration is not exclusive, as long as the probationer’s Constitutional rights are not jeopardized. Duration of Probation Period: 1. If the term of imprisonment is not more than one year, probation shall not exceed 2 years. 2. if the term of imprisonment is more than one year, period shall not exceed 6 years. 3. When the penalty is a fine only and the offender is made to serve subsidiary imprisonment, probation shall be twice the total number of days of subsidiary imprisonment.

ART. 81: WHEN AND HOW THE DEATH PENALTY IS TO BE EXECUTED ART. 82: NOTIFICATION AND EXECUTION OF THE SENTENCE AND ASSISTANCE TO THE CULPRIT Section Two. — Execution of principal penalties NOTE: Designate a working day, which shall not be communicated to the offender before the sunrise of Page 53 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said day. The execution shall not take place until after the expiration of at least 8 hours following such notification.

surveillance of an officer of the law whenever the court so provides in the decision due to the health of the offender. But the reason is not satisfactory just because the offender is a respectable member of the community.

ART. 83: SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE Death sentence commuted to RP: 1. woman, while pregnant 2. woman, within 1 year, after delivery 3. person over 70 years of age 4. convict who becomes insane after final sentence of death has been pronounced

Title Four EXTINCTION OF CRIMINAL LIABILITY

ART. 84: PLACE OF EXECUTION AND PERSONS WHO MAY WITNESS THE SAME

Chapter One TOTAL EXTINCTION OF CRIMINAL LIABILITY

ART. 85: PROVISIONS RELATIVE TO THE CORPSE OF THE PERSON EXECUTED AND ITS BURIAL ART. 86: RECLUSION PERPETUA, RECLUSION TEMPORAL, PRISION MAYOR, PRISION CORRECCIONAL AND ARRESTO MAYOR

ART. 89: HOW CRIMINAL LIABILITY IS TOTALLY EXTINGUISHED PAR. 1. BY DEATH

ART. 87: DESTIERRO

Destierro Shall Be Imposed In The Following Cases: 1. death or serious physical injuries is caused or are inflicted under exceptional circumstance 2. person fails to give bond for good behavior 3. concubine’s penalty for the crime of concubinage 4. lowering the penalty by degrees Execution of Destierro: 1. Convict shall not be permitted to enter the place designated in the sentence nor within the radius specified, which shall not be more QuickTime™ and a than 250 and not less decompressor than 25 km from the TIFF (Uncompressed) are needed to see this picture. place designated. 2. If the convict enters the prohibited area, he commits evasion of sentence.

NOTES: ƒ Extinguishment of criminal liability is a ground for motion to quash. ƒ Criminal liability whether before or after final judgment is extinguished upon death because it is a personal penalty. ƒ Pecuniary penalty is extinguished only when death occurs before final judgment. ƒ The death of the offended party however does not extinguish criminal liability of the accused because it is a crime against the state.

PAR. 2. BY SERVICE OF SENTENCE NOTES: ƒ Crime is a debt, hence extinguished upon payment. ƒ Service does not extinguish civil liability. PAR. 3. BY AMNESTY

ART. 88: ARRESTO MENOR NOTE: Served where: 1. In the municipal jail 2. In the house of the offender, but under the

Amnesty – is an act of the sovereign power granting oblivion or general pardon. It wipes all traces and vestiges of the crime but does not extinguish civil liability.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 PAR. 4. BY ABSOLUTE PARDON Pardon – an act of grace proceeding from the power entrusted with the execution of laws, which exempts the individual from the punishment the law inflicts for the crime.

deed – 6 months 4. Light offenses – 2 months When the penalty is a compound one, the highest penalty shall be made the basis of the application of above rules. PAR. 6. BY PRESCRIPTION OF PENALTY

AMNESTY

PARDON

Extended to classes of persons who may be guilty of political offenses

Exercised individually by the President

Exercised even before trial or investigation

Exercised when one is convicted

Looks backward and abolishes the offense itself

Looks forward and relieves the offender of the consequences

Does not extinguish civil liability A public act that needs the declaration of the President with the concurrence of Congress

Same A private act of the President

Courts should take judicial notice

Must be pleaded and proved

NOTE: means the loss/forfeiture of the right of government to execute the final sentence after the lapse of a certain time. Conditions: 1. There must be final judgment. 2. The period must have elapsed. PRESCRIPTIVE PERIODS OF PENALTIES: 1. Death and reclusión perpetua – 20 years 2. Other afflictive penalties – 15 years 3. Correctional penalties – 10 years, except for the penalty of arresto mayor which prescribes in 5 years 4. Light penalties – 1 year

PAR. 6. BY MARRIAGE OF THE OFFENDED WOMAN (ART. 344) NOTE: Crimes covered: 1. rape 2. seduction 3. abduction 4. acts of lasciviousness ƒ The marriage must be contracted in good faith.

PAR. 5. BY PRESCRIPTION OF CRIME Prescription of a crime – is the loss/forfeiture of the right of the state to prosecute the offender after the lapse of a certain time. NOTE: When the crime prescribes, the state loses the right to prosecute QuickTime™ and a

TIFF (Uncompressed) PRESCRIPTIVE PERIODS OF decompressor CRIMES: are needed to see this picture. 1. Crimes punishable by: a. Death, reclusión perpetua or reclusión temporal – 20 years b. afflictive penalties – 15 years c. correctional penalties – 10 years, d. except those punishable by arresto mayor which shall prescribe in 5 years 2. Crime of libel – 1 year 3. Offenses of oral defamation and slander by

ART. 90: PRESCRIPTION OF CRIME NOTES: ƒ In computing for the period, the first day is excluded and the last day included. Period is subject to leap years. ƒ When the last day of the prescriptive period falls on a Sunday or a legal holiday, the information can no longer be filed the following day. ƒ Simple slander prescribes in 2 months and grave slander in 6 months. ƒ Since destierro is a correctional penalty, it prescribes in 10 years. For afflictive penalties, period is 15 years. ƒ If it is a compound penalty, basis will be the highest penalty. Page 55 of 174

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If fine is an alternative penalty (imposed together with a penalty lower than the fine), fine shall be the basis. Prescription begins to run from the discovery thereof. It is interrupted when proceedings are instituted and shall begin to run again when the proceedings are dismissed. If an accused fails to move to quash before pleading, he is deemed to have waived all objections, except if the grounds are: 1. facts charged do not constitute an offense 2. court has no jurisdiction 3. criminal action or liability has been extinguished 4. the averments, if true, would constitute a legal excuse or justification (See Rule 117, Sec 9, RoC) Prescription does not take away the court’s jurisdiction but only absolves the defendant and acquits him.

ART. 91: COMPUTATION OF PRESCRIPTION OF OFFENSES NOTES: ƒ If there is nothing concealed (appears in a public document), the crime commences to run on the date of the commission. ƒ The period of prescription for crimes which continue never runs. ƒ Crime needs to be discovered by: 1. offended party 2. authorities 3. their agents ƒ If a person witnesses the crime but only tells the authorities 25 years later, prescription commences on the day the authorities were told. What Interrupts Prescription? 1. preliminary examination or investigation which is similar to judicial proceeding 2. filing the proper complaint with the QuickTime™ and a TIFF (Uncompressed) decompressor prosecutor’s office. Police not included. are needed to see this picture. 3. Filing complaint with the court that has proper jurisdiction The Period Commences To Run Again When The Proceeding Is Terminated: 1. Without the accused being convicted or acquitted 2. The proceeding is unjustifiably stopped for a reason not imputable to the offender

When such proceedings terminate – termination that is final; an unappealed conviction or acquittal Unjustifiably stopped for any reason – ex: accused evades arrest, proceedings must be stopped NOTE: Art. 91 applies to a special law when said law does not provide for the application but only provides for the period of prescription.

ART. 92: WHEN AND HOW PENALTIES PRESCRIBE NOTES: ƒ Final sentence must be imposed. ƒ If a convict can avail of mitigating circumstances and the penalty is lowered, it is still the original penalty that is used as the basis for prescription. However, if the convict already serves a portion of his sentence and escapes after, the penalty that was imposed (not the original) shall be the basis for prescription. ƒ Fines less than P200 fall under light penalty. Those above are correccional. ART. 93: COMPUTATION OF THE PRESCRIPTION OF PENALTIES The period of prescription commences to run from the date when the culprit evaded the service of his sentence. Requisites: 1. Penalty is imposed by final sentence. 2. Convict evaded service of the sentence by escaping during the term of his sentence. 3. Convict has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime. 4. Penalty has prescribed, because of the lapse of time from the date of the evasion of the service of the sentence. Interruption Of The Period: If the convict 1. gives himself up 2. be captured 3. goes to a foreign country with which the Philippines has no extradition treaty 4. commits another crime before the expiration of the period of prescription 5. accepts a conditional pardon

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: ƒ If a government has an extradition treaty with the country to which a convict escaped, but the crime is not included in the treaty, the running of the prescription is still interrupted. ƒ Evasion of sentence starts the running of the prescription. It does not interrupt it. Acceptance of the conditional pardon interrupts the prescription period. ƒ Rolito Go case: Since he was captured, he is only supposed to serve the remainder of his sentence. Reason: During the period he escaped, his existence was one of fear and discomfort. ART. 94: PARTIAL EXTINCTION OF CRIMINAL LIABILITY

NOTES: ƒ Consent is not necessary in commutation. ƒ Prisoner is also allowed special time allowance for loyalty which is 1/5 deduction of the period of his sentence. PAROLE – consists in the suspension of the sentence of a convict after serving the minimum term of the indeterminate penalty, without granting pardon, prescribing the terms upon which the sentence shall be suspended. In case his parole conditions are not observed, a convict may be returned to the custody and continue to serve his sentence without deducting the time that elapsed. Good conduct allowance during confinement – Deduction for the term of sentence for good behavior

Conditional pardon – contract between the sovereign power of the executive and the convict NOTE: Convict shall not violate any of the penal laws of the Philippines. In Case Of Violation Of Conditions: 1. Offender is re-arrested and re-incarcerated 2. Prosecution under Art. 159 COMMUTATION – change in the decision of the court by the chief regarding the: 1. degree of the penalty 2. by decreasing the length of the imprisonment or fine Commutation Allowed When: 1. person is over 70 years old 2. 8 justices fail to reach a decision affirming the death penalty

Allowances For Good Conduct Per Year Years

Allowance

First 2 years

5 days per month of good behavior 3rd to 5th years 8 days per month of good behavior Following years up to 10 days per month of good 10th year behavior 11th year and 15 days per month of good successive years behavior NOTE: Condition of pardon is limited to unserved portion of the sentence, unless an intention to extend it beyond the time is manifest. ART. 96: EFFECT OF COMMUTATION OF SENTENCE ART. 97: ALLOWANCE FOR GOOD CONDUCT

CONDITIONAL PARDON

PAROLE

Given after final judgment

Given after service of the minimum penalty

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Granted by Chief Executive

Given by the Board of Pardons and Parole

For violation, convict may be prosecuted under 159

For violations, may be rearrested, convict serves remaining sentence

NOTES: ƒ allowance for good conduct not applicable when prisoner released under conditional pardon. ƒ good conduct time allowance is given in consideration of good conduct of prisoner while he is serving sentence. ART. 98: SPECIAL TIME ALLOWANCE FOR LOYALTY

ART. 95: OBLIGATION INCURRED BY PERSON GRANTED CONDITIONAL PARDON Page 57 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: ƒ The article applies only to prisoners who escaped. ƒ There is a deduction of 1/5 of the period of sentence of prisoner who, having evaded the service of his sentence during the calamity or catastrophe mentioned in Art 158, gives himself up to the authorities within 48 hours following the issuance of the proclamation by the President announcing the passing away of the calamity or catastrophe. ƒ The deduction is based on the original sentence and not on the unexpired portion. ƒ Art 158 provides for increased penalties: ƒ A convict who has evaded the service of his sentence by leaving the penal institution on the occasion of disorder resulting from conflagration, earthquake or similar catastrophe or during mutiny in which he did not participate is liable to an increased penalty (1/5 of the time still remaining to be served – not to exceed 6 months), if he fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the President announcing the passing away of the calamity. ART. 99: WHO GRANTS TIME ALLOWANCES NOTES: ƒ The authority to grant time allowance for good conduct is exclusively vested in the Director. (e.g. provincial warden cannot usurp Director’s authority) ƒ It is not an automatic right, and once granted, cannot be revoked by him.

Title Five CIVIL LIABILITY QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Chapter One PERSON CIVILLY LIABLE FOR FELONIES

TWO CLASSES OF CIVIL LIABILITY 1. social injury – produced by disturbance and alarm which are the outcome of the offense

2. personal injury – caused by the victim who may have suffered damage, either to his person, property, honor or chastity

ART. 100: CIVIL LIABILITY OF A PERSON GUILTY OF FELONY Dual Character Of The Crime As Against: 1. the state, because of the disturbance of peace and order 2. the private person injured, unless it involves the crime of treason, rebellion, espionage, contempt and others where no civil liability arises on the part of the offender either because there are no damages or there is no private person injured by the crime

Damage that may be recovered in criminal cases: 1. Crimes against persons, like crime of physical injuries – whatever he spent for treatment of wounds, doctor’s fees, medicines as well as salary or wages unearned 2. Moral Damages: seduction, abduction, rape or other lascivious acts, adultery or concubinage, illegal or arbitrary detention or arrest, illegal search, libel, slander or any other form of defamation, malicious prosecution 3. Exemplary Damages: imposed when crime was committed with one or more aggravating circumstances NOTES: ƒ If there is no damage caused by the commission of the crime, offender is not civilly liable. ƒ 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 does not carry with it the extinction of the civil one. ƒ When accused is acquitted on ground that his guilt has not been proven beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. ƒ Exemption from criminal liability in favor of an imbecile or insane person, and a person under 15 years, or over 15 but under 18 who acted without discernment and those acting Page 58 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

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under the impulse of irresistible force or under the impulse of an uncontrollable fear of an equal or greater injury does not include exemption from civil liability. Acquittal in the criminal action for negligence does not preclude the offended party from filing a civil action to recover damages, based on the theory that the act is a quasidelict. When the court found the accused guilty of criminal negligence but failed to enter judgment of civil liability, the private prosecutor has a right to appeal for the purposes of the civil liability of the accused. The appellate court may remand the case to the trial court for the latter to include in its judgment the civil liability of the accused Before expiration of the 15-day period to appeal, the trial court can amend the judgment of conviction by adding a provision for the civil liability of the accused, even if the convict has started serving the sentence. If offender dies prior to the institution of the action or prior to the finality of judgment, civil liability ex delicto is extinguished. An independent civil action may be brought by the injured party during the pendency of the criminal case provided the right is reserved. Reservation is necessary in the following cases: (according to Herrera, no reservation needed) i. any of the cases referred to in Art 32 (perpetual or temporary disqualification for exercise of the right of suffrage) ii. defamation, fraud and physical injury (bodily injury and not the crime of physical injury) iii. civil action is against a member of a city or municipal police force for refusing or failing to render aid or protection to any person in case of danger to life or property

Prejudicial Question – one which arises in a case, QuickTime™ and a TIFF (Uncompressed) decompressor the resolution of which is a logical antecedent of the are needed to see this picture. issue involved in said case and the cognizance of which pertains to another tribunal. (elements provided in Rule 111, Section 7 of RoC) For the principle to apply, it is essential that there be 2 cases involved, a civil and a criminal case. Prejudicial questions must be decided before any criminal prosecution may be instituted or may proceed.

ART. 101: RULES REGARDING CIVIL LIABILITY IN CERTAIN CASES General Rule: Exemption from criminal liability does not include exemption from civil liability. Exception: No civil liability in Art. 12, par. 4 (injury caused by mere accident) and par. 7 (failure to perform an act required by law when prevented by some lawful or insuperable cause). Pars. 1,2,3,5 and 6 are NOT exempt from civil liability although exempt from criminal liability. Who Are Civilly Liable For: 1. acts of insane or minor exempt from criminal liability a. primarily persons having legal authority or control over him, if at fault or negligent (except if proven that they acted without fault or with due diligence) b. If there is no fault or negligence, or even with fault but are insolvent and there are no persons having legal authority over them, the property of the insane, minor or imbecile not exempt from execution shall be held liable. 2. over 15 but under 18, with discernment a. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. b. Guardians over minors who are under their authority and live in their company c. If there are no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. NOTE: Final release of a child based on good conduct does not remove his civil liability for damages. 3. persons acting under an irresistible force or uncontrollable fear – Persons using violence or causing the fear are primarily liable. If there are none, those doing the act are responsible.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 General Rule: no civil liability in justifying circumstances Exception: par. 4 of Art. 11, where a person does an act, causing damage to another, in order to avoid evil or injury, the person benefited by the prevention of the evil or injury shall be civilly liable in proportion to the benefit he received. Civil liability in case of state of necessity Those who benefited by the act are liable. The court shall determine the proportionate amount for which each shall be liable. If the government or majority of the inhabitants are held responsible, such will be determined by special laws or regulations. ART. 102: SUBSIDIARY CIVIL LIABILITY OF INNKEEPERS, TAVERNKEEPERS AND PROPRIETORS OF ESTABLISHMENTS PAR. 1 Requisites: 1. The innkeeper, tavernkeeper or proprietor of the establishment or his employee committed a violation of municipal ordinance or some general or special police regulation. 2. A crime is committed in such establishment. 3. The person criminally liable is insolvent. NOTE: When all these are present, the innkeeper, tavernkeeper or any other person or corporation is subsidiarily liable for the crime committed in his establishment. PAR. 2: Requisites: 1. The guests notified in advance the innkeeper of the deposit of such goods within the inn or house. 2. The guests followed the directions of the innkeeper or his representative with respect to the care of and vigilance over such goods. and a 3. Such goods of QuickTime™ the guests lodging therein TIFF (Uncompressed) decompressor to see thisw/ picture. were taken are byneeded robbery force upon things or theft committed within the inn or house.

ART. 103: SUBSIDIARY CIVIL LIABILITY OF OTHER PERSONS

industry. 2. Any of their servants, pupils, workmen, apprentices or employees commits a felony while in the discharge of his duties. 3. The said employee is insolvent and has not satisfied his civil liability. Industry – any department or branch of art, occupation or business; especially one w/c employs so much labor and capital is a distinct branch of trade NOTES: ƒ Hospitals are not engaged in industry; hence, they are not subsidiarily liable for acts of nurses. ƒ Private persons without business or industry are not subsidiarily liable. ƒ A separate trial is not necessary to enforce the subsidiary liability of the employer. The judgment obligee only needs to file a motion for subsidiary execution. During the hearing of the said motion, it is incumbent upon the movant to prove that; (1) an employeremployee relationship exists; (2) the employer is engaged in an industry; (3) the convict committed the crime while in the discharge of his duties; and (4) the writ of execution was returned unsatisfied. ƒ The employer’s subsidiary liability arises when it is proved that the convict committed the crime while at the service of the employer and the writ of execution issued against the accused is returned unsatisfied. On the other hand, if the convict committed the crime but NOT while in the service of an employer and he cannot pay his civil liability, Art. 39 on subsidiary penalty will apply.

CIVIL LIABILITIES Includes reparation and indemnification Includes restitution (return property taken), nothing to pay in terms of money

PECUNIARY LIABILITIES Same

No restitution as the liabilities are to paid out of the property of the offender No fines and costs of Includes fines and costs of proceedings proceedings

Requisites: 1. The employer, teacher, person or corporation is engaged in any kind of Page 60 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Chapter Two WHAT CIVIL LIABILITY INCLUDES

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ART. 104: WHAT IS INCLUDED IN CIVIL

NOTE: The first remedy granted by law is restitution of the thing taken away by the offender; if restitution cannot be made by the offender or by his heirs, the law allows the offended party reparation. In either case, indemnity for consequential damages may be required. Restitution – In theft, the culprit is duty bound to return the property stolen. Reparation – In case of inability to return the property stolen, the culprit must pay the value of the property stolen. In case of physical injuries, the reparation of the damage caused would consist in the payment of hospital bills and doctor’s fees to the offended party.

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property may be reimbursed with the price paid therefor if it be acquired at (a) a public sale and (b) in good faith. Circumstances which bar an action for recovery: (a) torrens title, (b) when sale is authorized When the liability to return a thing arises from a contract, and not from a criminal act, the court cannot order its return in the criminal case. Restitution may be ordered, even if accused is acquitted, provided the offense is proved and it is shown that the thing belongs to someone else. When crime is not against property, no restitution or reparation of the thing can be done. Payment of salary of an employee during the period of suspension cannot, as a general rule, be properly decreed by the court in a judgment of acquittal. It devolves upon the head of the department concerned to do so. The court has authority to order the reinstatement of the accused acquitted of a crime punishable by the penalty of perpetual or temporary disqualification.

Indemnification – the loss of salary or earnings ART. 106: REPARATION; HOW MADE ART. 105: RESTITUTION; HOW MADE NOTES: ƒ The convict cannot, by way of restitution, give to the offended party a similar thing of the same amount, kind or species and quality. The very thing should be returned. ƒ If the property stolen while in the possession of the third party suffers deterioration due to his fault, the court will assess the amount of the deterioration and, in addition to the return of the property, the culprit will be ordered to pay such amount. ƒ The owner of theQuickTime™ property and a illegally taken by TIFF (Uncompressed) decompressor needed to see this picture. the offender are can recover it from whomsoever is in possession thereof. Thus, even if the rd property stolen was acquired by a 3 person by purchase without knowing that it has been stolen, such property will be returned to the owner. ƒ If the thing is acquired by a person knowing that it was stolen, then he is an accessory and therefore criminally liable. ƒ The third party who acquired the stolen

NOTES: ƒ The court orders reparation if restitution is not possible. ƒ Reparation shall be: the price of the thing, plus its sentimental value. ƒ If there is no evidence as to the value of the thing unrecovered, reparation cannot be made. ƒ Payment by the insurance company does not relieve the offender of his obligation to repair the damage caused. ƒ Damages shall be limited to those caused by the crime. ƒ The accused is liable for the damages caused as a result of the destruction of the property after the crime was committed, either because it was lost or destroyed by the accused himself or that by any other person or as a result of any other cause or causes. ART. 107: INDEMNIFICATION; WHAT IS INCLUDED NOTES: ƒ Indemnity refers to crimes against persons while reparation to crimes against property. Page 61 of 174

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Indemnity for medical services still unpaid may be recovered. Contributory negligence on the part of the offended party reduces the civil liability of the offender. The civil liability may be increased only if it will not require an aggravation of the decision in the criminal case on which it is based. The amount of damages for death shall be at least 50,000, even though there may have been mitigating circumstances. In addition: 1. payment for the loss of the earning capacity of the deceased 2. If the deceased was obliged to give support, the recipient, who is not an heir, may demand support from the defendant. 3. The spouse, illegitimate descendants and ascendants of the deceased may demand for moral damages.

Moral damages may be recovered following: 1. physical injuries 2. seduction, abduction, rape 3. adultery, concubinage 4. illegal or arbitrary detention 5. illegal search 6. libel, slander, defamation 7. malicious prosecution

in

the

ART. 108: OBLIGATION TO MAKE RESTORATION, REPARATION FOR DAMAGES, OR INDEMNIFICATION FOR CONSEQUENTIAL DAMAGES AND ACTIONS TO DEMAND THE SAME; UPON WHOM IT DEVOLVES NOTES: ƒ The heirs of the person liable has no obligation if restoration is not possible and the deceased left no property. ƒ Civil liability is possible only when the offender dies after final judgment. ƒ If the death of the offender took place before QuickTime™ and a (Uncompressed) decompressor any final TIFFjudgment of conviction was are needed to see this picture. rendered against him, the action for restitution must necessarily be dismissed. ART. 109: SHARE OF EACH PERSON CIVILLY LIABLE NOTE: In case of insolvency of the accomplices, the principal shall be subsidiarily liable for their share of the indemnity. In case of the insolvency of the principal, the accomplices shall be subsidiarily liable,

jointly and severally liable, for the indemnity due from said principal. ART. 110: SEVERAL AND SUBSIDIARY LIABILITY OF PRINCIPALS, ACCOMPLICES AND ACCESSORIES OF A FELONY; PREFERENCE IN PAYMENT Each class of principals, accomplices and accessories is liable solidary for their share and subsidiarily liable for the share of the other classes. Preference In Enforcement Of Subsidiary Liability: 1. against the property of the principal 2. against that of the accomplice 3. against that of the accessories ART. 111: OBLIGATION TO MAKE RESTITUTION IN CERTAIN CASES NOTES: ƒ This refers to a person who has participated gratuitously in the proceeds of a felony and he is bound to make restitution in an amount equivalent to the extent of such participation. ƒ The third person must be innocent of the commission of the crime, otherwise he would be liable as an accessory and this article will not apply. Ex. A stole a ring worth 1k which he gave to B who accepted it without knowledge that it was stolen. B sold the ring to C for 500. B is liable to make restitution up to 500 only.

Chapter Three EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

ART. 112: EXTINCTION OF CIVIL LIABILITY Civil Liability Is Extinguished By: 1. payment or performance 2. loss of the thing due 3. condonation or remission of the debt 4. confusion or merger of the rights of creditor and debtor 5. compensation 6. novation

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 113: OBLIGATION TO SATISFY CIVIL LIABILITY NOTES: ƒ Unless extinguished, civil liability subsists even if the offender has served sentence consisting of deprivation of liberty or other rights or has not served the same, due to amnesty, pardon, commutation of the sentence or any other reason. ƒ Under the law as amended, even if the subsidiary imprisonment is served for nonpayment of fines, this pecuniary liability of the defendant is not extinguished. ƒ While amnesty wipes out all traces and vestiges of the crime, it does not extinguish the civil liability of the offender. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. ƒ Probation affects only the criminal aspect of the crime.

BOOK II

TITLE ONE CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS

Section 1 – Treason and Espionage ART 114. TREASON ELEMENTS: 1. Offender is a Filipino citizen or an alien QuickTime™ and a resident; TIFF (Uncompressed) decompressor are needed to see this picture. 2. There’s a war in and Philippines is involved; and 3. Offender either – a. Levies war against the government; or b. Adheres to enemies, giving aid or comfort.

NOTES: • Treason – breach of allegiance to the government by a person who owes allegiance to it. • Allegiance – obligation of fidelity and obedience which individuals owe to the government under which they live or to their sovereign, in return for protection they receive • Treason is a war crime - punished by state as a measure of self-protection • Committed in times of war (not peace) when - there is actual hostilities - no need for a declaration of war. • Mere acceptance of public office and discharge of official duties under the enemy do not constitute per se the felony of treason. But when the position is policy-determining, the acceptance of public office and the discharge of official duties constitute treason.

PERSONS LIABLE: 1. Filipino – permanent allegiance; can commit treason anywhere 2. Alien Residing – temporary allegiance; commit treason only while residing in Philippines NOTES: • Treason committed in a foreign country may be prosecuted in the Philippines. (Art.2, RPC) • Treason by an alien must be committed in the Philippines. (EO 44).

WAYS TO COMMIT TREASON: 1. Levying war against government - requires: a. Actual assembling of men b. Purpose of executing a treasonable design, by force 2. Adheres to enemies – following must concur together: a. Actual adherence b. Give aid or comfort NOTES: • Levying war - must be with intent to overthrow the government as such, not merely to repeal a particular statute or to resist a particular officer. • Not necessary that those attempting to overthrow the government by force of arms Page 63 of 174

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should have the apparent power to succeed in their design, in whole or in part Adherence – intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest. Aid or Comfort – act w/c strengthens or tends to strengthen the enemy of the government in the conduct of war against the government, or an act w/c weakens or tends to weaken the power of the government or the country to resist or to attack the enemies of the gov’t or country

WAYS TO PROVE: 1. Treason a. Testimony of at least 2 witnesses to the same overt act b. Judicial confession of accused 2. Adherence a. One witness b. Nature of act itself c. Circumstances surrounding act NOTES: • To convict: testimonies must relate to the same overt act – not two similar acts • If act is separable – each witness can testify to parts of it; but the act, as a whole, must be identifiable as an overt act • Confession must be in open court • Reason for 2-witness rule Æ special nature of the crime requires that the accused be afforded a special protection not required in other cases so as to avoid a miscarriage of justice. Extreme seriousness of the crime, for which death is one of the penalties provided by law, and the fact that the crime is committed in abnormal times, when small differences may in mortal enmity wipe out all scruples in sacrificing the truth. General Notes: • Inherent circumstances Æ they do not aggravate the crime QuickTime™ and a (Uncompressed) decompressor - EvidentTIFFpremeditation are needed to see this picture. - superior strength - treachery • Treason is a continuing crime. Even after the war, offender can still be prosecuted. • No treason through negligence since it must be intentional • No complex crime of treason with murder – murder is the overt act of aid or comfort

and is therefore inseparable from treason itself. • DEFENSE: - Duress or uncontrollable fear - Obedience to de facto government • NOT DEFENSE: - Suspended allegiance - Joining the enemy army thus becoming a citizen of the enemy

ART. 115. CONSPIRACY AND PROPOSAL TO COMMIT TREASON

ELEMENTS – CONSPIRACY: 1. In time of war; 2. Two or more persons come to an agreement to a. levy war against the government, or b. adhere to the enemies and to give them aid or comfort 3. They decide to commit it. ELEMENTS – PROSOPAL: 1. In time of war 2. A person who has decided to levy war against the government, or to adhere to the enemies and to give them aid or comfort 3. Proposes its execution to some other person/s. General 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. • Mere agreement and decision to commit treason is punishable. • Two-witness rule – not applicable since this is a crime separate from treason • Mere proposal even without acceptance is punishable, too. If the other accepts, it is already conspiracy. • 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.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 116. MISPRISION OF TREASON

ELEMENTS: 1. Offender owes allegiance to the government 2. Not a foreigner 3. Has knowledge of any conspiracy (to commit treason) against the government 4. He conceals or does not disclose the same to the authorities in w/c he resides. NOTES: • Offender is punished as an accessory to the crime of treason. • But is actually principal to this crime. • Crime doesn’t apply if crime of treason is already committed and it is not reported. • It is a crime of omission. • RPC mentions 4 individuals (i.e. governor, provincial fiscal, mayor or city fiscal), but what if you report to some other high-ranking government. official? Ex: PNP Director? Judge Pimentel says any governement. official of the DILG is OK.. ART. 117. ESPIONAGE ESPIONAGE – is 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 the advantage of a foreign nation.

MODES of COMMITTING ESPIONAGE: 1. By entering, without authority, a warship, fort, or military or naval establishment or reservation to obtain any information, plan or other data of confidential nature relative to the defense of the Philippines. QuickTime™ and a ELEMENTS: TIFF (Uncompressed) decompressor are needed to see this picture. 1. That the offender enters a warship, fort, naval or military establishment or reservation; 2. That he has no authority therefore; and 3. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.

2. By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in the preceding paragraph, which he had in his possession by reason of the public office he holds. ELEMENTS: 1. That the offender is a public officer; 2. That he has in his possession the articles, data or information referred to in the first mode of committing espionage, by reason of the public office he holds; and 3. That he discloses their contents to a representative of a foreign nation. PERSONS LIABLE: 1. First mode: a. Filipino b. alien residing 2. Second mode: a. Offender is a public officer. NOTES: • Being a public officer is a requirement in the second paragraph • It is aggravating in the first. General Notes: • Espionage is the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship. • Wiretapping is not espionage if the purpose is not connected with the defense. • In the first mode of committing the felony, it is not necessary that the offender succeeds in obtaining the information. TREASON ESPIONAGE In both – not conditioned by citizenship of offender Committed in war time War and Peace time Limited in two ways of Committed in many ways committing crime: levying war, and adhering to the enemy giving him aid or comfort

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 119. VIOLATION OF NEUTRALITY C.A. NO. 616 An Act to Punish Espionage and Other Offenses Against National Security ACTS PUNISHABLE: 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 time of peace (i.e. causing in any manner insubordination, disloyalty, mutiny or refusal of duty of any member of the military, naval, or air forces of the Philippines); 4. Disloyal acts in time of war; 5. Conspiracy to commit the foregoing acts; 6. Harboring or concealing violators of the law (i.e. the offender harbors a person whom he knows as someone who committed or is about to commit a violation of this Act); and 7. Photographing from aircraft of vital military information.

Section Two – Provoking War & Disloyalty in Case of War

ART. 118. INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS ELEMENTS: 1. Offender performs unlawful or unauthorized acts; 2. Such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property; NOTES: QuickTime™ and a (Uncompressed) • Crime is TIFF committed indecompressor time of peace. are needed to see this picture. • Intent of the offender is immaterial. • In inciting to war, the offender is any person. If the offender is a public officer, the penalty is higher. • Reprisals are not limited to military action, it could be economic reprisals, or denial of entry into their country. • Example: X burns Chinese flag. If China bans the entry of Filipinos into China, that is reprisal.

ELEMENTS: 1. That there is war in which the 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: • This crime is committed only in time of war. • Neutrality of the Philippines that was violated. • There has to be a regulation issued by competent authority for enforcement of neutrality – offender violated it • Being a public officer or employee has higher penalty ART. 120. CORRESPONDECE WITH HOSTILE COUNTRY ELEMENTS: 1. There’s a war in and Philippines is involved; 2. That the offender makes correspondence with an enemy country or territory occupied by enemy troops; 3. That the correspondence is either – a. prohibited by the government, or b. carried on in ciphers or conventional signs, or c. containing notice or information which might be useful to the enemy. QUALIFYING CIRCUMSTANCES: 1. Notice or information might be useful to the enemy. 2. Offender intended to aid the enemy. NOTES: • Circumstances qualifying the offense: 1. notice or information might be useful to the enemy 2. offender intended to aid the enemy • A hostile country exists only during hostilities or after the declaration of war. • Correspondence to enemy country is correspondence to officials of enemy country even if said official is related to the offender. Page 66 of 174

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It is not correspondence with private individual in enemy country. If ciphers were used, no need for prohibition of the government. If ciphers were not used, there is a need for prohibition of the government. It is immaterial if correspondence contains innocent matters. If prohibited, correspondence is punishable.

PIRACY – it is robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility.

MUTINY – the unlawful resistance to a superior, or the raising of commotions and disturbances on board a ship against the authority of its commander.

ART. 121. FLIGHT TO ENEMY’S COUNTRY ELEMENTS: 1. There’s a war and Philippines is involved; 2. Offender owes allegiance to the government; 3. Offender attempts to flee or go to enemy country; and 4. Going to enemy country is prohibited by competent authority. PERSONS LIABLE: 1. Filipino citizen 2. Alien residing in the Philippines NOTES: • Mere attempt consummates the crime. • There must be a prohibition. If there is none, even if one went to enemy country, there is no crime. • An alien resident may be held guilty for this crime because an alien owes allegiance to the Philippine government albeit temporary.

Section Three – Piracy & Mutiny on The High Seas ART. 122. PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS QuickTime™ and a

(Uncompressed) decompressor PIRACY – MODESTIFF TO COMMIT: are needed to see this picture. 1. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532); 2. By seizing the whole or part of the cargo of said vessels, its equipment or personal belongings of its complement or passengers, the offenders being strangers to the vessels.

ELEMENTS of PIRACY: 1. A vessel is on the high seas or Philippine waters; 2. Offenders – not members of its complement nor passengers of the vessel; and 3. That the offenders – a. attack or seize vessel (if committed by crew or passengers, the crime is not piracy but robbery in the high seas), or b. seize whole or part of vessel’s cargo, equipment or personal belongings of its complement or passengers. NOTES: • High seas - any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign government; parts of the sea that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state (United Nations Convention on the Law of the Sea). • Philippine waters – all bodies of water, such as but not limited to seas, gulfs, bays, around, between and connecting each of the islands of the Philippine Archipelago, irrespective of its depth, breath, length or dimension, and all waters belonging to the Philippines by historic or legal title, including territorial sea, the seabed, the insular shelves, and other submarine areas over which the Philippines has sovereignty and jurisdiction. (Sec. 2, P.D. No. 532) • Now, Art. 122, as amended by R.A. 7659 Piracy and Mutiny in Philippine waters is punishable. • Before R. A. 7659 amended Art 122, piracy and mutiny only on the high seas was punishable. However, the commission of the acts described in Arts. 122 and 123 in Philippine waters was under P.D. No. 532. Page 67 of 174

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Piracy in high seas – jurisdiction of any court where offenders are found or arrested. Piracy in internal waters – jurisdiction of Philippine courts. For purposes of the Anti-Fencing Law, piracy is part of robbery and theft.

PIRACY

MUTINY

Robbery or forcible degradation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. Intent to gain is an element. Attack from outside. Offenders are strangers to the vessel.

Unlawful resistance to a superior officer, or the raising of commotion and disturbances on board a ship against the authority of its commander.

PIRACY

Intent to gain is not an element Attack from the inside.

The offender is an outsider.

The offender is a member of the complement or a passenger of the vessel. In both, there is intent to gain and the manner of committing the crime is the same.

WITHIN PHIL. WATERS

Offender is an outsider

PD 532, Anti-Piracy Offender is passenger

NOTE: Under PD 532, piracy may be committed even by a passenger or member of the complement of the vessel.

ART. 123. QUALIFIED PIRACY

ROBBERY ON HIGH SEAS

Art. 122, RPC

3. Directly or indirectly abets the commission of piracy.

crew

or

PD 532 (ANTI-PIRACYQuickTime™ AND ANTI-HIGHWAY and a TIFF (Uncompressed) decompressor ROBBERY LAW 1974) are needed to seeOF this picture.

VESSEL – any vessel or watercraft used for (a) transport of passengers and cargo or (b) for fishing. AIDING OR ABETTING PIRACY REQUISITES: 1. Knowingly aids or protects pirates; 2. Acquires or receives property taken by such pirates, or in any manner derives any benefit;

QUALIFYING CIRCUMSTANCES: 1. Seizure of the vessel by boarding or firing upon the same; 2. Abandonment of victims without means of saving themselves; or 3. Piracy was accompanied by murder, homicide, physical injuries, or rape. NOTES: • Parricide/infanticide should be included (according to Judge Pimentel). • There is a conflict between this provision and the provision on rape. Ex: If rape is committed on someone below 7 yrs. old – penalty is death under the new rape law. But if rape committed on someone below 7 during the time of piracy – reclusion perpetua to death. • Themurder/rape/homicide/physical injuries must have been committed on the passengers or on the complement of the vessel. • Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. • QUALIFIED PIRACY – a SPECIAL COMPLEX CRIME punishable by reclusión perpetua to death, regardless of the number of victims.

R. A. NO. 6235 Anti-Hijacking Law

ACTS PUNISHABLE: 1. By compelling a change in the course or destination of an aircraft of Philippine registry, or seizing or usurping the control thereof while it is in flight;

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. By compelling an aircraft of foreign registry to land in Philippine territory or seizing or usurping the control thereof while it is in the said territory; and 3. By shipping, loading, or carrying in any passenger aircraft operating as a public utility w/in the Philippines, any explosive, flammable, corrosive or poisonous substance or material. IN FLIGHT – From the moment all exterior doors are closed following embarkation until the same doors are again opened for disembarkation. NOTES: (Atty. Palacios) • Where the aircraft is of Philippine registry, the offense must be committed while in flight. Hence, the act must take place after all exterior doors are closed following embarkation. • Where the aircraft is of foreign registry, offense need not take place while in flight. QUALIFYING CIRCUMSTANCES (Par 1 & 2): 1. Firing upon the pilot, member of the crew or passenger of the aircraft; 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. NOTES: (Atty. Palacaios) • For “firing upon” to qualify the offense, offender must have actually fired weapon. Mere attempt is not enough. • For “firing upon” to qualify the offense, offender need not succeed in hitting pilot, crew member or passenger.

the his the the

TITLE TWO CRIMES AGAINST THE FUNDAMENTAL LAWS and a OF THEQuickTime™ STATE TIFF (Uncompressed) decompressor are needed to see this picture.

CLASSES OF ARBITRARY DETENTION: 1. By detaining a person without legal ground 2. Delay in the delivery of detained persons to the proper judicial authorities 3. Delaying release

ART. 124. ARBITRARY DETENTION ELEMENTS: 1. That the offender is a public officer or employee (whose official duties include the authority to make an arrest and detain persons); 2. That he detains a person; and 3. That it was without legal grounds. NOTES: • Arbitrary detention is the deprivation by a public officer of the liberty of a person w/o any legal ground. • Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can be liable as principals. • Legal grounds for the detention of any person: - commission of a crime - violent insanity or other ailment requiring compulsory confinement of the patient in a hospital • Grounds for warrantless arrest: - Crime is about to be, is being, or has been committed; - Arresting officer must have personal knowledge that the person probably committed the crime; or - Person to be arrested is an escaped prisoner. • Rolito Go v. CA is an example of arbitrary detention (Judge Pimentel) • Ramos v. Enrile: Rebels later on retire. Once you have committed rebellion and have not been punished or amnestied, the rebels continue to engage in rebellion, unless the rebels renounce their affiliation. Arrest can be made without a warrant because rebellion is a continuing crime.

ART. 125. DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES

ELEMENTS: 1. That the offender is a public officer or employee; 2. That he has detained a person for some legal ground; and Page 69 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. That he fails to deliver such person to the proper judicial authority within: a. 12 hours, detained for crimes punishable by light penalties, or equivalent; b. 18 hours, for crimes punishable by correctional penalties, or their equivalent; or c. 36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent. NOTES: • The felony means delay in filing the necessary information or charging of person detained in court which may be waived if a preliminary investigation is asked for. This does not contemplate actual physical delivery. • The filing of the information in court beyond the specified periods does not cure illegality of detention. Neither does it affect the legality of the confinement under process issued by the court. • To prevent committing this felony, officers usually ask accused to execute a waiver of Art. 125 which should be under oath and with assistance of counsel. Such waiver is not violative of the constitutional right of the accused. • Contemplates arrest by virtue of some legal ground or valid warrantless arrest. • If arrested by virtue of arrest warrant, person may be detained until case is decided. • LENGTH OF WAIVER: - Light offense – 5 days. - Serious and less serious offenses – 7 to 10 days. (Judge Pimentel) - If offender is a private person, the crime is illegal detention. ARBITRARY DETENTION (124)

DELAY IN DELIVERY OF DETAINED (125)

Detention is illegal from the beginning.

Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

ART. 126: DELAYING RELEASE ELEMENTS: 1. That the offender is a public officer or employee; 2. That 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. That the offender without good reason delays: a. the service of the notice of such order to the prisoner, or b. the performance of such judicial or executive order for the release of the prisoner, or c. the proceedings upon a petition for the release of such person. NOTE: • Wardens and jailers are the persons most likely to violate this provision.

ART. 127. EXPULSION ELEMENTS: 1. That the offender is a public officer or employee; 2. That he expels any person from the Philippines, or compels a person to change his residence; and 3. That the offender is not authorized to do so by law. ACTS PUNISHABLE: 1. by expelling a person from the Philippines; or 2. by compelling a person to change his residence NOTES: • Acts punishable: • The crime of expulsion absorbs that of grave coercion. If done by a private person, act will amount to grave coercion. • Crime does not include expulsion of undesirable aliens, destierro, or when sent to prison. • If a Filipino who, after voluntarily leaving the country, is illegally refused re-entry is considered a victim of being forced to change his address.

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Threat to national security is not a valid ground to expel or to compel one to change his address. The Chief Executive has the power to deport undesirable aliens.

ART. 128. VIOLATION OF DOMICILE ELEMENTS: 1. That the offender is a public officer or employee; 2. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects; and 3. That he commits any of the following acts: a. entering any dwelling against the will of the owner thereof; b. searching papers or other effects found therein without the previous consent of such owner; c. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same. SPECIAL AGGRAVATING CIRCUMSTANCES: 1. nighttime 2. papers or effects not constituting evidence of a crime are not returned immediately NOTES: • The judicial order is the search warrant. • If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280). • When 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: - grave coercion if violence or intimidation is used (Art 286), or there is no violence - unjust vexation QuickTime™ifand a (Uncompressed) decompressor or TIFF intimidation (Art 287). are needed to see this picture. • Public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is in unlawful possession of opium.

ACTS PUNISHABLE: 1. procuring a search warrant without just cause ELEMENTS: 1. That the offender is a public officer or employee; 2. That he procures a search warrant; and 3. That there is no just cause. 2. exceeding his authority by using unnecessary severity in executing a search warrant legally procured ELEMENTS: 1. That the offender is a public officer or employee; 2. That he has legally procured a search warrant; and 3. That he exceeds his authority or uses unnecessary severity in executing the same. NOTES: • Search warrant is valid for 10 days from its date of issue. • If there is no just cause, the warrant is unjustified. • The search is limited to what is described in the warrant, all details must be with set forth with particularity. • Example of a warrant maliciously obtained: X was a respondent of a search warrant for illegal possession of firearms. A return was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. • Examples of abuse in service of warrant: 1. X owner was handcuffed while search was going-on. 2. Tank was used to ram gate prior to announcement that a search will be made. 3. Persons who were not respondents were searched. • An exception to the necessity of a search warrant is the right of search and seizure as an incident to a lawful arrest.

ART. 129. SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Page 71 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 130. SEARCHING DOMICILE WITHOUT WITNESSES ELEMENTS: 1. That the offender is a public officer or employee; 2. That he is armed with a 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: • Order of those who must witness the search: - Homeowner - Members of the family of sufficient age and discretion - Responsible members of the community • Validity of the search warrant can be questioned only in 2 courts: where issued or where the case is pending. The latter is preferred for objective determination.

• Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or interrupting that meeting. • Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, the offense is unjust vexation. • Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body and not punishable under this article. • The person talking on a prohibited subject at a public meeting contrary to agreement that no speaker should touch on politics may be stopped. • But stopping the speaker who was attacking certain churches in public meeting is a violation of this article. • Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for meetings in public places. But if a police stops a meeting in a private place because there’s no permit, officer is liable for stopping the meeting.

ART. 132. INTERRUPTION OF RELIGIOUS ART. 131. PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS

ELEMENTS: 1. Offender is a public officer or employee; 2. He performs any of the following acts: a. prohibiting or interrupting, without legal ground the holding of a peaceful meeting, or dissolving the same (e.g. denial of permit in arbitrary manner). b. hindering any person from joining any lawful association or from attending any of its meetings c. prohibiting or hindering any person QuickTime™ and a decompressor fromTIFFare(Uncompressed) addressing, either alone or needed to see this picture. together with others, any petition to the authorities for the correction of abuses or redress of grievances. NOTES: • If the offender is a private individual, the crime is disturbance of public order (Art 153).

ELEMENTS: 1. That the officer is a public officer or employee; 2. That religious ceremonies or manifestations of any religion are about to take place or are going on; and 3. That the offender prevents or disturbs the same. NOTES: Qualifying circumstances: 1. violence; or 2. threats. • Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion, but only a meeting of a religious sect. But if done in a private home, it’s a religious service. • Religious Worship includes people in the act of performing religious rites for a religious ceremony or a manifestation of religion. Examples: Mass, baptism, marriage

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 • X, a private person, boxed a priest while the priest was giving homily and maligning a relative of X. Is X liable? X may be liable under Art 133 (Offending religious feelings) because X is a private person.

(132)

ntal law of the state

Offending the Religious Feeling (133)

Crime against public order

ART. 133. OFFENDING RELIGIOUS FEELINGS ELEMENTS: 1. Acts complained of were performed – a. in a place devoted to religious feelings, or b. during the celebration of any religious ceremony 2. Acts must be notoriously offensive to the feelings of the faithful; 3. Offender is any person; and 4. There’s a deliberate intent to hurt the feelings of the faithful, directed against religious tenet. NOTES: • If in a place devoted to religious purpose, there is no need for an ongoing religious ceremony. • Example of religious ceremony (acts performed outside the church): Processions and special prayers for burying dead persons but NOT prayer rallies. • Acts must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing or attempting to damage an object of religious veneration. • There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or rudeness is not enough. CRIME Prohibition, Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship

Public officers, private persons, outsiders

religious = tumult or alarms If not notoriously offensive = unjust vexation If not tumults = alarms and scandal If meeting illegal at onset = inciting to sedition or rebellion

TITLE THREE CRIMES AGAINST PUBLIC ORDER

POLITICAL CRIMES – are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive.

ART. 134. REBELLION OR INSURRECTION

NATURE WHO OF ARE CRIME LIABLE Crime Public QuickTime™ and a against officers, TIFF (Uncompressed) decompressor see this picture. the are needed toOutsiders fundame ntal law of the state

If not by public officer = Tumults

ELEMENTS: 1. That there be a public armed uprising; and 2. That the purpose of the uprising or movement is either: a. to remove from the allegiance to said government or its laws the territory of the Philippines or any part thereof or any body 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.

Crime against the fundame

If by insider = unjust vexation If not

PERSONS LIABLE: 1. Any person who: (a) promotes, (b) maintains, or (c) heads a rebellion or insurrection (leader); 2. Any person merely participating or executing the command of others in rebellion (participant); and

Public officers, Outsiders

IF ELEMENT MISSING

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. 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 (person deemed leader when leader is unknown) NOTES: • Rebellion is the term used where the object of the movement is completely to overthrow and supersede the existing government. • Insurrection refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of governmental authority w/ respect to particular matters or subjects. • Purpose of the uprising must be shown but it is not necessary that it be accomplished. • If there is no public uprising, the crime is direct assault. • Mere giving of aid or comfort is not criminal in the case of rebellion. There must be ACTUAL participation. • people vs. Hernandez ruling: rebellion cannot be complexed with ordinary crimes done pursuant to it • people vs. Geronimo ruling: crimes done for private purposes without political motivation should be separately punished • Enrile vs. Salazar ruling: upheld Hernandez • Thus: Rebellion absorbs other crimes committed in furtherance of rebellion. Illegal possession of firearms in furtherance of rebellion is absorbed by the crime of rebellion. A private crime may be committed during rebellion. Rape, even if not in furtherance of rebellion cannot be complexed with rebellion. • Rebellion is a continuing crime along with and a the crime of QuickTime™ conspiracy or proposal to TIFF (Uncompressed) decompressor are needed to see this picture. commit rebellion. • If killing or robbing were done for private purposes or for profit, without any political motivation, the crime would • be separately be punished and would not be embraced by rebellion (People v. Fernando). • If the leader is unknown, a person is deemed a leader of rebellion if he: a. directed the others, b. spoke for them,

c. signed receipts and other documents issued in their name, and d. performed similar acts on behalf of the rebels. • Diverting public funds is malversation absorbed in rebellion. • Public officer must take active part, because mere silence or omission is not punishable as rebellion. • In rebellion, it is not a defense that the accused never took the oath of allegiance, or that they never recognized the government. ART. 134 – A. COUP D’ ETAT ELEMENTS: 1. Offender is a person or persons belonging to the military, or police or holding any public office or employment, 2. Committed by means of swift attack, accompanied by violence, intimidation, threat, strategy or stealth; 3. Directed against: a. duly constituted authorities of the Philippines b. any military camp or installation c. communication networks, public utilities or other facilities needed for the exercise and continued possession of power 4. For the purpose of seizing or diminishing state power.

PERSONS LIABLE: 1. Any person who leads or in any manner directs or commands others to undertake coup d’etat (leaders); 2. Any person in the government service who participates or executes directions or commands of others in undertaking coup d’etat (participants from government); 3. Any person not in the government service who participates, or in any manner, supports, finances, abets, or aids in undertaking a coup d’etat (participants not from government); and 4. 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 (deemed leader if leader is unknown)

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 TREASON (114)

REBELLION (134)

COUP D’ETAT (134-A)

SEDITION (139)

National Security

Public Order

Public Order

Public Order

Levying war against the gov’t; OR Adherence and giving aid or comfort to enemies

Public uprising AND Taking up arms against the gov’t

Attack against authorities, military camp, networks or public utilities, or other facilities for power

Rising publicly and tumultuously (more than 3 men who are armed or provided with means of violence)

Deliver the gov’t to the enemy during war

Removing territory , or body of armed forces, or depriving the Chief Executive or Legislature

Seizing or diminishing state power.

See enumeration in article.

Nature of Crime

Overt acts

Purpose

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 135. PENALTY FOR REBELLION, INSURRECTION OR COUP D’ ETAT WHO ARE LIABLE AND PENALTIES: REBELLION: 1. Leaders – reclusion perpetua 2. Participants – reclusion temporal 3. Deemed leader – reclusion perpetua COUP D’ETAT: 1. Leaders – reclusion perpetua 2. Participants (gov’t) – reclusion temporal 3. Participants (not gov’t) – prision mayor 4. Deemed leader – reclusion perpetua

ART. 136. CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ ETAT, REBELLION OR INSURRECTION ELEMENTS OF CONSPIRACY: 1. Two or more persons come to an agreement to rise publicly and take arms against the government; 2. For any of the purposes of rebellion; and 3. They decide to commit it. ELEMENTS OF PROPOSAL: 1. A person who has decided to rise publicly and take arms against the government; 2. For any of the purposes of rebellion; and 3. Proposes its execution to some other person/s. PROPOSAL TO INCITING TO COMMIT REBELLION REBELLION In both, the offender induces another to commit rebellion In both, the crime of rebellion should not be committed by the persons to whom it is proposed or who are incited. If they commit rebellion because of the QuickTime™ and a TIFF (Uncompressed) decompressor proposal or inciting, the proponent or the one are needed to see this picture. inciting may become a principal by inducement in the crime of rebellion. The person who It is not required that proposes has decided the offender has to commit rebellion. decided to commit rebellion. The person who The act of inciting is proposes the done publicly. execution of the crime uses secret means.

NOTES: • Organizing a group of soldiers, soliciting membership in, and soliciting funds for the organization show conspiracy to overthrow the government. • The mere fact of giving and rendering speeches favoring Communism would not make the accused guilty of conspiracy if there is no evidence that the hearers then and there agreed to rise up in arms against the government. • The advocacy of Communism or Communistic theory is not a criminal act of conspiracy unless converted into advocacy of action. • Only when the Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit rebellion. (People vs. Hernandez ART. 137. DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES

ACTS PUNISHABLE: 1. Failing to resist rebellion by all the means in their power; or 2. Continuing to discharge the duties of their offices under the control of rebels; or 3. Accepting appointment to office under rebels. NOTES: • There must be actual rebellion for this crime to be committed. • It must not be committed in conspiracy with rebels or coup plotters for this crime to be committed. • If position is accepted in order to protect the people, not covered by this article.

ART. 138. INCITING TO REBELLION OR INSURRECTION ELEMENTS: 1. That the offender does not take arms or is not in open hostility against the government; 2. That he incites others to the execution of any of the acts of rebellion; and 3. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. Page 76 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: • Inciting must have been intentionally calculated to seduce others to rebellion. • In both proposal to commit rebellion and in inciting to rebellion, rebellion should not actually be committed by the persons to whom it was proposed, or who were incited. If they commit rebellion because of the proposal or incitement, the proponent, or the one inciting may become a principal by inducement in the crime of rebellion. PROPOSAL TO COMMIT REBELLION (136) The person who proposes has decided to commit rebellion. The person who proposes the execution of the crime uses secret means.

INCITING TO REBELLION (138) Not required that the offender has decided to commit rebellion. The inciting is done publicly.

ART. 139. SEDITION ELEMENTS: 1. That the offenders rise – a. Publicly; and b. Tumultuously; 2. That they employ force, intimidation, or other means outside of legal methods; and 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, QuickTime™ or prevent and a the execution of (Uncompressed) decompressor anyTIFF administrative order; are needed to see this picture. 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; or 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 is the raising of commotions or disturbances in the State. Its ultimate object is a violation of the public peace or at least such a course of measures as evidently engenders it. (People vs. Perez) • Tumultuous uprising means that it is caused by more than 3 persons who are armed or provided w/ means of violence. • In sedition, offender may be a private or public person. • Common crimes are not absorbed in sedition. (People v. Umali) • Preventing election through legal means is NOT sedition. • 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. • There is conspiracy to commit sedition (Art. 141) but no proposal to commit sedition. ART. 140. PENALTY FOR SEDITION

PERSONS LIABLE: 1. leader of the sedition, and 2. other persons participating in the sedition. ART. 141. CONSPIRACY TO COMMIT SEDITION NOTE: There must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition in order to constitute crime of conspiracy to commit sedition.

ART. 142. INCITING TO SEDITION ACTS PUNISHABLE: 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems etc. 2. Uttering seditious words or speeches which tend to disturb the public peace;

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3.

Writing, publishing, or circulating scurrilous [vulgar, mean, libelous] libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace; or 4. Knowingly concealing such evil practices.

ELEMENTS of ACT 1: 1. That the offender does not take a direct part in the crime of sedition; 2. That he incites others to the accomplishment of any of the acts which constitute sedition; and 3. That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end. UTTERING AND WRITING PUNISHABLE: 1. when they tend to disturb or obstruct any public officer in executing the functions of his office; or 2. when they tend to instigate others to cabal and meet together for unlawful purposes; or 3. when they suggest or incite rebellious conspiracies or riots; or 4. when 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 RULES RELATIVE TO SEDITOUS WORDS: 1. Dangerous Tendency rule 2. Clear and Present Danger rule 3. Balance of Interests rule

Chapter Two - CRIMES AGAINST POPULAR REPRESENTATION

ART. 143. ACTS TENDING TO PREVENT THE QuickTime™ and a TIFF (Uncompressed) decompressor MEETING OF THE ASSEMBLY AND SIMILAR are needed to see this picture. BODIES ELEMENTS: 1. A projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; and

2. That the offender who may be any person prevents such meeting by force or fraud. NOTE: 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 and requires an investigation before its existence can be determined.

ART. 144. DISTURBANCE OF PROCEEDINGS ELEMENTS: 1. An actual 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 b. he behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. NOTE: Complaint must be filed by member of the Legislative body. Accused may also be punished for contempt by the legislative body. ARTICLE 145. VIOLATION OF PARLIAMENTARY IMMUNITY. ACTS PUNISHABLE: 1. By using force, intimidation, threats, or fraud to prevent any member of Congress from attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof, or from expressing his opinions or casting his vote. ELEMENTS: 1. Offender uses force, intimidation, threat or fraud 2. Purpose is to prevent any member of Congress from: a. Attending the said meetings; b. Expressing his opinions; or c. Casting his vote. 2. By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable Page 78 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 under the code by a penalty higher than prision mayor. ELEMENTS: 1. 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 regular or special session 4. member arrested o searched hasn’t committed a crime by a penalty prision mayor or higher. NOTES: • Parliamentary immunity does not mean exemption from criminal liability, except from a crime that may arise from any speech that the member of Congress may deliver on the floor during regular or special session. • To be consistent with the 1987 Constitution, the phrase “by a penalty higher than prision mayor” in Art. 145 should be amended to read “by the penalty of prision mayor or higher.”

Chapter Three - ILLEGAL ASSEMBLIES AND ASSOCIATIONS

ART. 146. ILLEGAL ASSEMBLIES 2 TYPES OF ILLEGAL ASSEMBLIES: 1. Meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Revised Penal Code; REQUISITES: 1. There’s a meeting – gather or group of persons whether fixed or moving; 2. Meeting is attended by armed QuickTime™ and a persons; and decompressor TIFF (Uncompressed) are needed to see this picture. 3. The purpose of meeting is to commit any of the crimes punishable under RPC 2. A meeting in w/c the audience is incited to the commission of the crimes of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agent.

REQUISITES: 1. There’s a meeting – gather or group of persons whether fixed or moving; 2. Audience whether armed or not is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. WHEN A PERSON CARRIES UNLICENSED FIREARM IN THE 1st ASSEMBLY: 1. Presumed that the purpose of meeting is to commit any crime under RPC 2. Presumed that the one in possession of unlicensed firearm is the leader or organizer of the meeting NOTES: • Not all the persons present at the meeting of the first form of illegal assembly need to be armed. • Persons liable for illegal assembly: • the organizers or leaders of the meeting • persons merely present at the meeting (except when presence is out of curiosity – not liable) • Presumptions if person present at the meeting carries an unlicensed firearm: • purpose of the meeting is to commit acts punishable under the RPC • considered as leader or organizer of the meeting ARTICLE 147. ILLEGAL ASSOCIATIONS 2 KINDS OF ILLEGAL ASSOCIATIONS: 1. Organizations totally or partially organized for the purpose of committing any of the crimes in RPC; or 2. For some purpose contrary to public morals. PERSONS LIABLE: 1. founders, directors and president of the association; and 2. mere members of the association ILLEGAL ASSEMBLY (146)

ILLEGAL ASSOCIATION (147)

Must be an actual meeting No need for such of armed persons to commit any of the crimes punishable Page 79 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Person assaulted is a person in authority or his agent; 3. At the time of the assault the person in authority or his agent a. is engaged in the actual performance of official duties (motive is not essential); or b. is assaulted by reason of the past performance of official duties (motive is essential); 4. That the offender knows that the one he is assaulting is a person in authority or his agent (with intention to offend, injure or assault); and 5. No public uprising.

under the RPC, or of individuals who, although not armed, are incited to the commission of treason, rebellion, sedition or assault upon a person in authority of his agent. It is the meeting and the Act of forming or attendance at such that are organizing and punished membership in the association is punished Persons liable: leaders and those present

Founders, directors, president and members

Chapter Four - ASSAULT, RESISTANCE AND DISOBEDIENCE

ART. 148. DIRECT ASSAULT 2 WAYS TO COMMIT DIRECT ASSAULT: 1. Without public uprising, by employing force or intimidation for attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition (first form)

FORCE EMPLOYED Person in Authority

Need not be serious

Serious

Agent

Must be of serious character

Serious

NOTES: General Rule: Direct assault is always complexed with the material consequence of the act (Ex. direct assault with murder). Exception: If resulting in a light felony, the consequent crime is absorbed. •

ELEMENTS: 1. Offender employs force or intimidation; 2. Aim of offender is to attain any of the purposes of the crime of rebellion and sedition; and 3. That there is no public uprising.

•

2. Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any QuickTime™ and a person in authority o any of his agents, while TIFF (Uncompressed) decompressor are needed to see this picture. engaged in the performance of official duties, or on the occasion of such performance. (second form).

•

ELEMENTS: 1. Offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance;

INTIMIDATION/ RESISTANCE

•

The force employed need not be serious when the offended party is a person in authority (Ex. Laying of hands). The intimidation or resistance must be serious whether the offended party is an agent only or a person in authority (Ex. Pointing a gun). A person in authority is any person directly vested with jurisdiction (power or authority to govern and execute the laws) whether as an individual or as a member of some court or governmental corporation, board, or commission. Examples: A barangay captain, a Division Superintendent of Schools, President of Sanitary Division and a teacher. An agent is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. Examples: Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal Page 80 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 • •

•

•

• •

treasurer, postmaster, sheriff, agents of the BIR, Malacañang confidential agent. Even when the person in authority or the agent agrees to fight, direct assault is still committed. When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate self-defense. There can be no assault upon or disobedience to one’s authority by another when they both contend that they were in the exercise of their respective duties. When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked. Direct assault cannot be committed during rebellion. Direct assault may be committed upon a private person who comes to the aid of a person in authority since he is then considered an agent of a person in authority.

QUALIFYING CIRCUMSTANCES: 1. when the assault is committed with a weapon; 2. when the offender is a public officer or employee; or 3. when the offender lays hand upon a person in authority

ARTICLE 149. INDIRECT ASSAULT ELEMENTS: 1. The direct assault is committed against an agent of a person in authority; 2. That the offended party comes to the aid of such agent of a person in authority; and 3. That the offender makes use of force or intimidation upon the said offended party. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

NOTES: • Indirect assault can be committed only when a direct assault is also being committed. • To be indirect assault, the person who should be aided is the agent and not the person in authority. In the latter case, it is already direct assault. According to Art 152: The person coming to the aid of the person in

authority is considered an agent and an attack on the latter is already direct assault. ARTICLE 150. DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS

ACTS PUNISHABLE: 1. Disobedience w/o legal excuse to summons issued by the Congress or any of its committees or subcommittees; 2. Refusal of any person present before a legislative or constitutional body or official to: (a) to be sworn or placed under affirmation; (b) to answer any legal inquiry; or (3) to produce books, documents, records etc. when required to do so by the said bodies in the exercise of their functions; 3. Restraining another from attending as witness in such body; or 4. Inducing disobedience to a summons or refusal to be sworn. ARTICLE 151. RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON ELEMENTS – RESISTANCE & SERIOUS DISOBEDIENCE (par. 1): 1. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; 2. That the offender resists or seriously disobeys such person in authority or his agent; and 3. That the act of the offender is not included in the provisions of arts. 148, 149 and 150. ELEMENTS – SIMPLE DISOBEDIENCE (par. 2) 1. That an agent of a person in authority is engaged in the performance of official duty gives a lawful order to the offender; 2. That the offender disobeys such agent of a person in authority; and 3. That such disobedience is not of a serious nature.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: • While being arrested and there’s serious resistance, person resisting must know that the one arresting him is an officer • Picketing (economic coercion) must be lawful otherwise police can disperse them • Disobedience in 2nd par. must not be serious. Otherwise it will fall under the 1st par. • Resistance mustn’t be serious otherwise it’s direct assault.

DIRECT ASSAULT (148)

PIA or his agent must be engaged in the performance of official duties or that he is assaulted by reason thereof Direct assault is committed in 4 ways – by attacking, employing force, seriously intimidating, and seriously resisting a PIA or his agent. Use of force against an agent of PIA must be serious and deliberate.

RESISTANCE & DISOBEDIENCE TO A PERSON IN AUTHORITY (PIA) OR AGENTS OF SUCH PERSON (151) PIA or his agent must be in the actual performance of his duties. Committed by resisting or seriously disobeying a PIA or his agent.

Simple disobedience – force against an agent of a PIA is not so serious; No manifest intention to defy the law & officers enforcing it.

d. Lawyers in the actual performance of their professional duties or on the occasion of such performance AGENT OF PERSON IN AUTHORITY –any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. They include: a. Barrio councilman b. Barrio policeman c. Barangay leader d. Any person who comes to the aid of persons in authority Notes: • Section 388 of the Local Gov’t. Code provides that for purposes of the RPC, the punong barangay, sangguniang barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions. • Other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and the security of life, property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority shall be deemed agent of persons in authority. • It seems that teachers, professors, lawyers etc could be considered as persons in authority not only for Arts. 148 and 151 but also for Art 149 (L.B. Reyes)

Chapter Five - PUBLIC DISORDERS ARTICLE 152. PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY – WHO SHALL BE DEEMED AS SUCH PERSON IN AUTHORITY –any person directly vested with jurisdiction, whether as an individual or QuickTime™ and a (Uncompressed) decompressor as a member ofTIFFaresome court or governmental needed to see this picture. corporation, board or commission. They include: a. Barangay captain b. Barangay chairman For the purposes of Art. 148 and 151: a. Teachers b. Professors c. Persons charged with the supervision of public or duly recognized private schools, colleges and universities

ARTICLE 153. TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER – TUMULTUOUS DISTURBANCE OR INTERRUPTION LIABLE TO CAUSE DISTURBANCE

TUMULTS AND OTHER DISTURBANCES: 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 Page 82 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship); 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; 5. Burying with pomp the body of a person who has been legally executed. TUMULTUOUS - caused by more than 3 persons who are armed or provided with means of violence. NOTES: • If the act of disturbing or interrupting a meeting or religious ceremony is not committed by public officers, or if committed by public officers who are participants therein, this article applies. Art 131 and 132 punishes the same acts if committed by public officers who are not participants in the meeting. • The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, it is inciting to rebellion or sedition. • Qualifying circumstance – if it is TUMULTUOUS ARTICLE 154. UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES

ACTS PUNISHABLE: ƒ Publishing or causing to be published, by means of printing, lithography or any other means of publication as news any false QuickTime™ and a (Uncompressed) decompressor news that TIFF may endanger the public order, are needed to see this picture. or cause damage to the interest or credit of the State. 1. 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. 2. Maliciously publishing or causing to be published any official resolution or document without proper authority, or

before they have been published officially. 3. 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.

ARTICLE 155. ALARMS AND SCANDALS

ACTS PUNISHABLE: 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. 4. Causing any disturbance or scandal in public places while intoxicated or otherwise, provided the act is not covered by Art 153 (tumult). NOTES: • Charivari is a mock serenade or discordant noises made with kettles, tin horns etc., designed to deride, insult or annoy. • Firearm must not be pointed at a person, otherwise, it is illegal discharge of firearm (Art. 254). • What governs is the result, not the intent of the offender.

ARTICLE 156. DELIVERING PRISONERS ELEMENTS: 1. That there is a person confined in a jail or penal establishment; 2. That the offender removes therefrom such person, or helps the escape of such person. NOTES: • Prisoner may be detention prisoner or one sentenced by virtue of a final judgment. • Escapee, if already serving final judgment, will in turn be held liable for evasion of sentence (Art. 157). Page 83 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

If merely detention prisoner he is not criminally liable. • The offender is an outsider to the jail. If the offender is a public officer or a private person who has custody of the prisoner and who helps a prisoner under his custody, Arts. 223 (infidelity in the custody of a prisoner) and 225 (escape of prisoner under custody of private person) will apply, respectively. • This felony may also be committed through imprudence or negligence. • Circumstance qualifying: use of violence, intimidation or bribery. • Mitigating circumstance: if it takes place outside the penal establishment by taking the guards by surprise.

Chapter Six – EVASION OF SENTENCE OR SERVICE

ART 157. EVASION OF SERVICE OF SENTENCE ELEMENTS: 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. NOTES: • This is a continuing offense. • This article does not apply to minor delinquents, detention prisoners, or deportees. • If the offender escaped within the 15-day appeal period, crime is not evasion because judgment is not yet final. • Circumstances qualifying the offense: QuickTime™ and a Evasion ofTIFF sentence was done through: (Uncompressed) decompressor are needed to see this picture. • unlawful entry (by “scaling”); • breaking doors, windows, gates, walls, roofs or floors; • using picklocks, false keys, disguise, deceit, violence or intimidation; or • connivance with other convicts or employees of the penal institution.

ARTICLE 158. EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES ELEMENTS: 1. That the offender is a convict 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 he 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: • Penalty of commission of this felony is an increase by 1/5 of the time remaining to be served under the original sentence, in no case to exceed 6 months. • The special allowance for loyalty (i.e. deduction of sentence) authorized by nd Articles 98 and 158(2 paragraph) refers to those convicts, who having evaded the service of their sentences by leaving the penal institution, give themselves up within 48 hours. • A mutiny is an organized unlawful resistance to a superior officer, a sedition, or a revolt. Disarming the guards is not mutiny. ARTICLE 159. OTHER CASES OF EVASION OF SERVICE OF SENTENCE ELEMENTS: 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. TWO PENALTIES: 1. prision correccional in its minimum period – if the penalty remitted does not exceed 6 years. Page 84 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. the unexpired portion of his original sentence – if the penalty remitted is higher than 6 years.

• •

NOTES: • Offender must have been found guilty of the subsequent offense (through w/c he violated his conditional pardon) before he can be prosecuted under this Article. But under the Revised Admin. Code, no conviction is necessary. President has the power to arrest, and reincarcerate offender without trial. • When the penalty remitted is destierro, under no circumstance may the penalty for the violation of conditional pardon be destierro.

•

•

General Rule: A quasi-recidivist may be pardoned at age 70… Exception: Unworthy, or habitual delinquent If new felony is evasion of sentence, offender is not a quasi-recidivist. The penalty: maximum period of the penalty for the new felony should be imposed. Mitigating circumstance can only be appreciated if the maximum penalty is divisible. Quasi-Recidivism may be offset by a special privileged mitigating circumstance. (Ex. Minority)

TITLE FOUR CRIMES AGAINST PUBLIC INTEREST

Chapter Seven – COMMISSION OF ANOTHER CRIME Chapter One – Forgeries

ART. 160. COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANTOHER PREVIOUS OFFENSE - PENALTY

ARTICLE 161. COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE

NOTE: this article provides for quasi-recidivism ELEMENTS: 1. That the offender was already convicted by final judgment of one offense; and 2. That he committed a new felony before beginning to serve such sentence or while serving the same. NOTES: • Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall QuickTime™ before and a commit a TIFF new felony beginning to (Uncompressed) decompressor needed to see this serve such are sentence, orpicture. while serving the same. • Second crime must belong to the RPC, not special laws. First crime may be either from the RPC or special laws. • The aggravating circumstance of reiteracion, on the other hand, requires that the offender shall have served out his sentence for the prior offense.

ACTS PUNISHABLE: 1. Forging the great seal of the Government; 2. Forging the signature of the President; or 3. Forging the stamp of the President. NOTE: When the signature of the President is forged, it is not falsification but forging of signature under this article.

ARTICLE 162. USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP ELEMENTS: 1. That the great seal of the Republic was counterfeited or the signature or stamp of the chief executive was forged by another person; 2. That the offender knew of the counterfeiting or forgery; and 3. That he used the counterfeit seal or forged signature or stamp. Page 85 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 • Foreign notes and coins not included under this article. Mutilation must be of Philippine legal tender. • There must be intention to mutilate

NOTE: Offender is NOT the forger or the cause of the counterfeiting ARTICLE 163. MAKING AND IMPORTING AND UTTERING FALSE COINS

ARTICLE 165. SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE ELEMENTS: 1. That there be false or counterfeited coins (need not be legal tender); 2. That the offender either made, imported or uttered such coins; and 3. That, in case of uttering such false or counterfeited coins, he connives with counterfeiters or importers. NOTES: • A coin is counterfeit, if it is forged, or if it is not authorized by the government as legal tender, regardless if it is of intrinsic value. • Counterfeiting is the imitation of legal or genuine coin such as to deceive an ordinary person in believing it to be genuine. • To utter is to pass counterfeited coins, deliver or give away. • To import is to bring them into port. Importation is complete even before entry at the Customs House. • This article also applies to Philippine coins, foreign state coins, and coins withdrawn from circulation. This does not require that the coins counterfeited be legal tender.

ARTICLE 164. MUTILATION OF COINS – IMPORTATION AND UTTERANCE OF MUTILATED COINS

ACTS PUNISHABLE: 1. Possession of a coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. ELEMENTS: 1. possession 2. with intent to utter, and 3. knowledge 2.

Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. ELEMENTS: 1. actually uttering, and 2. knowledge

NOTES: • Possession or uttering does not require that coins be legal tender. • Crime under this article includes constructive possession or the subjection of the thing to ones’ control. • R.A. 427 punishes possession of silver or nickel coins in excess of P50.00. It is a measure of national policy to protect the people from the conspiracy of those hoarding silver or nickel coins and to preserve and maintain the economy.

This has been repealed by PD 247. ACTS PUNISHABLE (PD 247): 1. willful defacement 2. mutilation QuickTime™ and a 3. tearing TIFF (Uncompressed) decompressor are needed to see this picture. 4. burning 5. destruction of Central Bank notes and coins NOTES: • Mutilation is to take off part of the metal either by filing it or substituting it for another metal of inferior quality, to diminish by ingenious means the metal in the coin.

ARTICLE 166. FORGING TREASURY OR BANK NOTES, OBLIGATIONS AND SECURITIES; IMPORTING AND UTTERING FALSE OR FORGED NOTES, OBLIGATIONS AND SECURITIES ACTS PUNISHABLE: 1. Forging or falsification of treasury or bank notes or documents payable to bearer; 2. Importing of such notes; or 3. Uttering of such false or forged obligations and notes in connivance with forgers and importers.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTES: • Forging is committed by giving a treasury or bank note or document payable to bearer or order an appearance of a true and genuine document. • Falsification is committed by erasing, substituting, counterfeiting or altering by any means the figures and letters, words, signs contained therein. Example: falsifying lotto or sweepstakes ticket constitutes the complex crime of attempted estafa through falsification of a government security. • Forging PNB checks is not included under this article. That is falsification of commercial document under Article 172. • Obligation or security includes bonds, certificate of indebtedness, bills, national bank notes, coupons, treasury notes, certificates of deposit, checks, drafts for money, and sweepstakes money. ARTICLE 167. COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER

b. possessing with intent to use any of such forged or falsified instruments. • •

ARTICLE 169. HOW FORGERY IS COMMITTED HOW FORGERY IS COMMITTED: a. by giving to a treasury or bank note or any instrument payable to bearer or to order, the appearance of a true and genuine document; b. by erasing, substituting, counterfeiting, altering by any means the figures, letters or words, or signs contained therein. • •

ELEMENTS: 1. That there be an instrument payable to order or other document of credit not payable to bearer; 2. That the offender either forged, imported or uttered such instruments; and 3. That in case of uttering, he connived with the forger or importer. ARTICLE 168. ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT

Elements: QuickTime™ and a TIFF (Uncompressed) decompressor 1. That any treasury or bank note or certificate are needed to see this picture. or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person; 2. That 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

The act sought to be punished is knowingly possessing with intent to use any of such forged treasury or bank notes. The accused has the burden to give a satisfactory explanation of his possession of forged bills. Mere possession of false money bill, without intent to use it to the damage of another, is not a crime.

If all acts are done but genuine appearance is not given, the crime is frustrated. P.D. No. 247 punishes the willful defacement, mutilation, tearing, burning, or destruction in any manner of currency notes or coins issued by the Central Bank of the Philippines.

ARTICLE 170. FALSIFICATION OF LEGISLATIVE DOCUMENTS ELEMENTS: 1. That there be a bill, resolution, or ordinance enacted or approved or pending approval by Congress or any provincial board or municipal council; 2. That the offender (any person) alters the same; 3. That he has no proper authority therefor; and 4. That the alteration has changed the meaning of the document. • •

Accused must not be a public official entrusted with the custody or possession of such document, otherwise Art. 171 applies. There can be no falsification through reckless imprudence as that will be inconsistent with the element of intent to cause damage in said crime.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ARTICLE 171. FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER ELEMENTS: 1. That the offender is a public officer, employee, or notary public. 2. That he takes advantage of his official position. a. He has the duty to make or to prepare or otherwise to intervene in the preparation of the document; or b. He has the official custody of the document which he falsifies 3. That he falsifies a document by committing any of the following acts: a. Counterfeiting or imitating any handwriting, signature or rubric. b. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate c. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. d. Making untruthful statements in a narration of facts. e. Altering true dates. f. Making any alteration or intercalation in a genuine document which changes its meaning. g. Issuing in authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original. h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book. 4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the QuickTime™ and a (Uncompressed) decompressor civil status of TIFF persons. are needed to see this picture.

PERSONS WHO MAY BE HELD LIABLE 1. Public officer, employee, or notary public who takes advantage of his official position 2. Ecclesiastical minister if the act of falsification may affect the civil status of persons 3. Private individual, if in conspiracy with public officer

ACTS OF FALSIFICATION a. Counterfeiting or imitating handwriting, signature or rubric.

any

COUNTERFEITING ELEMENTS: 1) That there be an intent to imitate, or an attempt to imitate; and 2) That the two signatures or handwritings, the genuine and the forged, bear some resemblance, to each other. •

Lack of similitude/imitation of genuine signature will not be ground for conviction under par. but such is not an impediment conviction under par. 2.

a a 1 to

b. Causing it to appear that persons have participated in an act or a proceeding 1. That the offender caused it to appear in a document that a person or persons participated in an act or a proceeding 2. That such person did not in fact participate in the act or proceeding c.

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

d. Making untruthful narration of facts.

statements

in

a

ELEMENTS: 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;

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person • •

•

There must be a narration of facts, not a conclusion of law. Narration must be on a material matter. The person making the narration of facts must be aware of the falsity of the facts narrated by him. This kind of falsification may be committed by omission. Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Ex. Residence certificates

Enemecio v. Office of the Ombudsman, GR 146731, 1/13/04 As the Ombudsman correctly pointed out, Enemecio failed to point to any law imposing upon Bernante the legal obligation to disclose where he was going to spend his leave of absence. “Legal obligation” means that there is a law requiring the disclosure of the truth of the facts narrated. Bernante may not be convicted of the crime of falsification of public document by making false statements in a narration of facts absent any legal obligation to disclose where he would spend his vacation leave and forced leave. e. Altering true dates. • Date must be essential • Alteration mujst affect veracity of document or effects f.

Making any alteration or intercalation in a genuine document which changes its meaning. ELEMENTS: 1. That there be an alteration (change) or intercalation (insertion) on a document 2. That it was made on a genuine document 3. That the alteration or intercalation has QuickTime™ andof a a document changed the meaning TIFF (Uncompressed) decompressor to see this picture. the document 4. That theare needed change made speak something false

g. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original.

•

if no knowledge, negligence

falsification

through

h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book. • This involves a genuine document • There is no crime of attempted or frustrated falsification of public document. • If offender does not take advantage of his public position, he may still be liable for falsification of documents by a private person under Art. 172. • It is not necessary that what is falsified is a genuine or real document. It is enough that it gives an appearance of a genuine article. DOCUMENT - any written statement by which a right is established or an obligation is extinguished COUNTERFEITING – intent or attempt to imitate FEIGNING - to represent by false appearance when no original exists

ARTICLE 172. FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED INSTRUMENTS ELEMENTS OF FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1): 1. That the offender is a private individual or a public officer or employee who did not take advantage of his official position; 2. That he committed any of the acts of falsification enumerated in ART. 171; 3. That the falsification was committed in any public or official or commercial document. • • •

Under this paragraph, damage is not essential, it is presumed. Lack of malice or criminal intent may be put up as a defense under this article. The following writings are public: a. written official acts or records of acts of the sovereign authority, official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country; b. Documents acknowledged before notary public except last wills and testaments; Page 89 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c.

•

• • • •

Public records, kept in the Philippines, of private documents required by law to be entered therein. Commercial documents: warehouse receipts, airway bills, bank checks, cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments. Cash disbursement vouchers or receipts evidencing payments are not commercial documents. A mere blank form of an official document is not in itself a document. The possessor of falsified document is presumed to be the author of the falsification. Issuing in authenticated form a document(art. 171(7)) purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original - can be committed only by a public officer or notary public who takes advantage of his official position since the authentication can be made only by the custodian or the one who prepared and retained a copy of the original document

ELEMENTS OF FALSIFICATION OF PRIVATE DOCUMENT: 1. That the offender committed any of the acts of falsification, except those in paragraph 7 and 8, enumerated in art. 171; 2. That the falsification was committed in any private document; and 3. That the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage . • It is not necessary that the offender profited or hoped to profit • A document falsified as a necessary means to commit another crime (complex crime) must be public, official or commercial. Hence, there is no complex crime of estafa through QuickTime™ and a falsification ofTIFF a (Uncompressed) private document because the decompressor are needed to see this picture. immediate effect of the latter is the same as that of estafa. • There is no falsification through reckless imprudence if the document is private and no actual damage is caused. • If the estafa was already consummated at the time the falsification of a private document was committed for the purpose of concealing the estafa, the falsification is not punishable. As regards the falsification of the private

•

•

document, there was no damage or intent to cause damage. A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law. The crime is falsification of public documents even if the falsification took place before the private document became part of the public records.

ELEMENTS OF USE OF FALSIFIED DOCUMENT (par. 3, art. 172): Introducing in a judicial proceeding 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in art. 171 or in any subdivisions nos. 1 and 2 of art. 172. 3. That he introduced said document in evidence in any judicial proceeding. Use in any other transaction 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in art. 171 or in any of subdivision nos. 1 and 2 of art. 172. 3. That he used such documents (not in judicial proceedings). 4. That the use of the documents caused damage to another or at least was used with intent to cause such damage. The user of the falsified document is deemed the author of the falsification, if: 1. The use was so closely connected in time with the falsification, and 2. The user had the capacity of falsifying the document. FALSIFICATION OF PRIVATE DOCUMENTS Damage to third party is an element of the offense.

FALSIFICATION OF PUBLIC/ OFFICIAL DOCUMENTS Damage to third persons is immaterial; what is punished is the violation of public faith and perversion of truth which the document proclaims.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 false certificate which refers to the illness or injury of a person. 2. Public officer who issued a false certificate of merit of service, good conduct or similar circumstances. Ex. Certificate of residence 3. Private individual who falsified a certificate under (1) and (2).

ARTICLE 173. FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES ACTS PUNISHABLE: 1. Uttering fictitious, wireless, telegraph or telephone message or falsifying message. ELEMENTS: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; and b. That the accused commits any of the following acts: - uttering fictitious wireless, cable, telegraph, or telephone message, or - falsifying wireless, cable, telegraph, or telephone message • A private individual may be a principal by inducement but not direct participation 2. Using such falsified message.

ARTICLE 175. USING FALSE CERTIFICATES CERTIFICATE - any writing by which testimony is given that a fact has or has not taken place ELEMENTS: 1. That a physician or surgeon has issued a false medical certificate, or a public officer has issued a false certificate of merit or service, good conduct, or similar circumstances, or a private person had falsified any of said certificates; 2. That the offender knew that the certificate was false; and 3. That he used the same. •

ELEMENTS: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173; b. That the accused used such falsified dispatch; and 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. •

•

The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable and telegraph or telephone message. Act No. 1851, QuickTime™ Sec. 4, punishes private and a (Uncompressed) decompressor individualsTIFF who forge or alter telegram. are needed to see this picture.

ARTICLE 174. FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERIT OR SERVICE, ETC PERSONS LIABLE: 1. Physician or surgeon who, in connection with the practice of his profession, issued a

When any of false certificates mentioned in Article 174 is used in judicial proceedings, Article 172 does not apply because it is limited only to those false documents embraced in Articles 171 and 172. ARTICLE 176. MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION

ACTS PUNISHABLE: 1. Making or introducing into the Philippines any stamps, dies or marks or other instruments or implements for counterfeiting or falsification. 2. Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person. NOTES: • The implements confiscated need not form a complete set. It is enough that they may be employed by themselves or together with other implements to commit the crime of counterfeiting or falsification. • Constructive possession is also punished. • Article 165 and 176 of the Revised Penal Code, also punish constructive possession. Page 91 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

ARTICLE 177. USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS ACTS PUNISHABLE: 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 or any foreign government 2. Usurpation of official functions: By performing an act pertaining to any person in authority or public officer of the Philippines or foreign government under the pretense of such official position, and without being lawfully entitled to do so. NOTES: • In usurpation of authority, the mere act of knowingly and falsely representing oneself is sufficient. It is not necessary that he performs an act pertaining to a public officer. • There must be positive, express and explicit representation and not merely a failure to deny. Representation may be shown by acts. • In usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person in authority. • A public officer may also be an offender. • Note: the usurpation must pertain to a department or agency of the Philippine Government or any foreign government. • Sec. 1 RA 75 punishes any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines; in addition to penalties imposed in RPC, the offender shall be fined not more than P5,000 or shall beandimprisoned for not QuickTime™ a (Uncompressed) decompressor more than TIFF 5 are years both. neededor to see this picture. • If it can be proven that the usurpation of authority or official functions by accused was done in good faith or under cloth of authority, then the charge of usurpation will not apply. Ex. See Estrada v. Desierto Estrada v. Desierto, GR 156160, 12/9/04 Hefti was charged with Usurpation of Official Function for issuing a notice of distraint, a function of the BIR

Commissioner. While it is true that under Sec. 206 of the NIRC as amended, the Commissioner of the BIR and not any Officer of the BIR was the one granted with the power to issue a notice of distraint, it bears to stress, however, that when respondent Hefti exercised such function of the BIR Commissioner, she was then designated Officer-In-Charge of the BIR by President Gloria Macapagal-Arroyo, as evidenced by a photocopy of her Memorandum of Appointment dated January 23, 2001. xxx Suffice it to say that when respondent Hefti issued the notice of distraint, she was clothed with authority to issue the same in view of her appointment as the then Officer-In-Charge of the BIR. Hence, the charge for Usurpation of Official Function does not apply to said respondent.

Chapter Two – OTHER FALSITIES

ARTICLE 178. USING FICTITIOUS NAME AND CONCEALING TRUE NAME ELEMENTS OF USING FICTITIOUS NAME: 1. That the offender uses a name other than his real name; 2. That he uses that fictitious name publicly; 3. That the purpose of the offender is – a. To conceal a crime, b. To evade the execution of a judgment, or c. To cause damage to public interest. Ex. Signing fictitious name for a passport ELEMENTS OF CONCEALING TRUE NAME: 1. That the offender conceals – a. his true name, and b. all other personal circumstances; and 2. That the purpose is only to conceal his identity. USE OF FICTITIOUS NAME (178) Element of publicity must be present Purpose is to conceal a crime, to evade the execution of a judgment, or to cause damage to public interest

CONCEALING TRUE NAME (178) Publicity not necessary Purpose is only to conceal identity

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 C.A. NO. 142 (Anti-Alias Law)

PERSONS LIABLE: 1. Any person who uses any name different from the one w/ w/c he was registered at birth in the office of the local civil registry, or w/ w/c he was registered in the bureau of immigration upon entry, or such substitute name as may have been authorized by a competent court. Exempted from criminal liability are persons who use another name as a pseudonym solely for literary, cinema, television, radio, or other entertainment purposes and in athletic events; and 2. Any person who having been baptized with a name different from what was registered, or who had obtained judicial authority for use of an alias, or who uses a pseudonym, represents himself in any public or private document w/o stating or affixing his real or original name or aliases or pseudonym he is authorized to use. NOTES: • A judicial authority must be first secured by a person who desires to use an alias. • However, a common-law wife does not incur criminal liability under the Anti-Alias Law if she uses the surname of the man she has been living w/ for the past 20 years and has been introducing herself to the public as his wife. ARTICLE 179. ILLEGAL USE OF UNIFORMS OR INSIGNIA

ELEMENTS: 1. That the offender makes use of insignia, uniform or dress; 2. That 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 QuickTime™ and a member; and TIFF (Uncompressed) decompressor are needed touniform see this picture. 3. That said insignia, or dress is used publicly and improperly. NOTES: • An exact imitation of the dress or uniform is unnecessary; a colorable resemblance calculated to deceive is sufficient • The term “improperly” means that the offender has no right to use the uniform or insignia.

• Wearing the uniform of an imaginary office, not punishable • 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 by a fine not exceeding P200 or imprisonment not exceeding 6 months, or both • Wearing insignia, badge or emblem of rank of the members of the Armed Forces of the Philippine or Constabulary is punished by RA 493 by a fine of not less than P100 and not exceeding P2,000 or by imprisonment for not less than one month or not exceeding two years, or both, except if used in playhouse or theater or in moving picture films ARTICLE 180. FALSE TESTIMONY AGAINST A DEFENDANT

ELEMENTS: 1. That there be a Criminal proceeding; 2. Offender testifies falsely under oath against the defendant therein; 3. Offender knows that it is false; and 4. The defendant against whom the false testimony is given is either acquitted or convicted in a final judgment. FALSE TESTIMONY - committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it NOTES: • Violation of this article requires criminal intent. Hence, it cannot be committed through negligence. • The offender need not impute guilt upon the accused to be liable. • The defendant must at least be sentenced to a correctional penalty or a fine, or must have been acquitted. • The witness who gave false testimony is liable even if the court did not consider his testimony. • Penalty depends upon sentence imposed on the defendant except in the case of a judgement of acquittal. Since Art. 180 does not prescribe the penalty where the defendant in a criminal case is sentenced to a light penalty, false testimony in this Page 93 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 instance cannot be punished considering that a penal must be strictly construed.

ARTICLE 181. FALSE TESTIMONY FAVORABLE TO THE DEFENDANT NOTES: • False testimony by negative statement is still in favor of the defendant. • False testimony in favor of defendant need not directly influence the decision of acquittal nor benefit the defendant(intent to favor defendant sufficient) • A statement of mere opinion is not punishable. • Conviction or acquittal is not necessary (final judgment is not necessary), but gravity of crime in principal case should be shown • A defendant who voluntarily goes up on the witness stand and falsely imputes to another person the commission of the offense is liable under this article. If he merely denies the commission of the offense, he is not liable. • Rectification made spontaneously after realizing mistake is not false testimony (Not liable if there is no evidence that accused acted with malice or criminal intent to testify falsely) • The penalty in this article is less than that which is provided in the preceding article because there is no danger to life or liberty of the defendant.

ARTICLE 181. FALSE TESTIMONY IN CIVIL CASES ELEMENTS: 1. That the testimony must be given in a civil case; 2. That the testimony must relate to the issues presented in said case; QuickTime™ and afalse; 3. That the testimony must be TIFF (Uncompressed) decompressor are needed to see this picture. be given by the 4. That the false testimony must defendant knowing the same to be false; and 5. That the testimony must be malicious and given with an intent to affect the issues presented in the said case. •

This article is not applicable when testimony is given in a special proceeding. In this case, the crime is perjury.

•

Basis of penalty: amount involved in the civil case.

ARTICLE 183. FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION

ELEMENTS: 1. That an accused made a statement under oath or made an affidavit upon a material matter; 2. That the statement or affidavit was made before a competent officer, authorized to receive and administer oath; 3. That in that statement or affidavit, 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. Two (2) Ways Of Committing Perjury: a. by falsely testifying under oath b. by making a false statement NOTES: • Subornation of perjury is committed if a person procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. This is now treated as plain perjury, the one inducing another as principal by inducement and the one induced as principal by direct participation. • Solemn affirmation refers to non-judicial proceedings and affidavits. • A false affidavit to a criminal complaint may give rise to perjury. • A matter is material when it is directed to prove a fact in issue. • A “competent person authorized to administer an oath” means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction. • There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate. • Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient. • Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings. Page 94 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

False testimony before the justice of the peace during a preliminary investigation may give rise to the crime of perjury, not false testimony in judicial proceedings. The latter crime contemplates an actual trial where a judgment of conviction or acquittal is rendered.

ART. 184. OFFERING FALSE TESTIMONY IN EVIDENCE ELEMENTS: 1. That the offender offered in evidence a false witness or false testimony; 2. That he knew the witness or the testimony was false; and 3. That the offer was made in a judicial or official proceeding. 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. • 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.

Chapter Three – FRAUDS

ARTICLE 185. MACHINATIONS IN PUBLIC QuickTime™ and a TIFFAUCTIONS (Uncompressed) decompressor are needed to see this picture.

ELEMENTS OF MACHINATIONS IN PUBLIC AUCTIONS: 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: 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 had 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 for the purpose of abstaining from taking part in any public auction. • The threat need not be effective nor the offer or gift accepted for the crime to arise. • Execution sales should be opened to free and full competition in order to secure the maximum benefit for the debtors.

ARTICLE 186. MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

ACTS PUNISHED: 1. Conspiracy or combination to prevent free competition in the market 2. Monopoly to restrain free competition in the market 3. Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise NOTES: • Combination to prevent free competition in the market - By entering into a contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market; It is enough that initial steps are taken. It is not necessary that there be actual restraint of trade. Page 95 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

Monopoly to restrain free competition in the market - By monopolizing any merchandise or object of trade or commerce, or by combining with any person or persons to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market

•

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

•

Also liable as principals: a. corporation/association b. agent/representative c. director/manager who willingly permitted or failed to prevent commission of above offense When offense is committed by a corporation or association, the president and directors or managers are liable. Mere conspiracy or combination is punished Crime is aggravated if the items involved are: a. food substance b. motor fuel or lubricants c. goods of prime necessity RA 3720 - created Food and Drug Administration RA 6361 - created Price Control Council RA 1180 - an Act to regulate the Retail Business A MONOPOLY is a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right or power to carry on a particular business or trade, manufacture a particular article, or control the sale or the whole supply of a particular commodity. It is a form of market structure in which one or only a few firms dominate the total sales of a product or service. On the other hand, a COMBINATION IN RESTRAINT OF TRADE is an agreement or understanding between two or and more persons,TIFFin(Uncompressed) theQuickTime™ formdecompressor of a a contract, trust, needed to see this or picture.other pool, holding are company, form of association, for the purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity, controlling its production, distribution and price, or otherwise interfering with freedom of trade without statutory authority. Combination in restraint of trade refers to the means while monopoly refers to the end.

• • •

• • • •

ARTICLE 187. IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS ELEMENTS: 1. That the offender imports, sells or disposes of any article or merchandise made of gold, silver or other precious metals; 2. That the stamps, brands, or marks of those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys; and 3. That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or quality of the metals or alloys. • •

When evidence show the article to be imported, selling the misbranded articles is not necessary. The manufacturer who alters the quality or fineness is liable for estafa under Art. 315, 2(b)

ARTICLE 188. SUBSTITUTING AND ALTERING TRADEMARKS, TRADENAMES, OR SERVICE MARKS

ACTS PUNISHABLE: 1. By (a) substituting the trade name (t/n) or trademark (t/m) of some other manufacturer or dealer or a colorable imitation thereof, for the t/n or t/m of the real manufacturer or dealer upon any article of commerce; and (b) selling the same. 2. By selling or by offering for sale such article of commerce, knowing that the t/n or t/m has been fraudulently used. 3. By using or substituting the service mark of some other person, or a colorable imitation of such marks, in the sale or advertising of services. 4. By printing, lithographing or reproducing t/n, t/m or service mark of one person, or a colorable imitation thereof, to enable another person to fraudulently use the same, knowing the fraudulent purpose for which it is to be used. TRADE-NAME OR TRADE-MARK – is a word or words, name, title, symbol, emblem, sign or device, or any combination thereof used as an advertisement, sign, label, poster, or otherwise, for Page 96 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the purpose of enabling the public to distinguish the business of the person who owns and uses said trade-name or trade-mark SERVICE MARK – is a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others and includes without limitation the marks, names, symbols, titles, designations, slogans, character names, and distinctive features of radio or other advertising NOTES: • The provisions of Articles 188 and 189 of the Revised Penal Code which are inconsistent with R. A. 8293 (Intellectual Property Code of the Philippines) are repealed. • The tradename, trademark or service mark need not be identical; a colorable imitation is sufficient. There must not be differences which are glaring and striking to the eye. • “Mark” means any visible sign capable of distinguishing the goods or services of an enterprise and shall include a stamped or marked container. • Tradename: identify or distinguish an enterprise; not necessarily attached or affixed to the goods of the owner. • Trademarks: to indicate origin of ownership of goods to which it is affixed • In trademarks, it is not necessary that the goods of the prior user and the later user of the trademark are of the same categories. The meat of the matter is the likelihood of confusion, mistake or deception upon purchasers of the goods of the junior user of the mark and goods manufactured by the previous user. • The tradename or trademark must be registered. Trademark must not be merely descriptive or generic. • The exclusive right to an originally valid trademark or tradename is lost, if for any reason it loses its distinctiveness or has become “publici juris.” QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

ARTICLE 189. UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADE NAME, TRADEMARK, OR SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION

ACTS PUNISHED: 1. Unfair competition by selling his goods, giving them the general appearance of the goods of another manufacturer or dealer. 2. Fraudulent designation of origin by (a) affixing to his goods or using in connection with his services a false designation of origin; or any false description or representation, and (b) selling such goods or services. 3. Fraudulent registration by procuring fraudulently from the patent office the registration of t/m, t/m or service mark. ELEMENTS OF UNFAIR COMPETITION: 1. That the offender gives his goods the general appearance of the goods of another manufacturer or dealer; 2. That the general appearance is shown in the (a) goods themselves, (b) wrapping of their packages, (c) device or words therein, or in (d) any other feature of their appearance; 3. That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose; and 4. That there is actual intent to deceive the public or defraud a competitor. UNFAIR COMPETITION: consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established goodwill, or committing any acts calculated to produce such result Unfair Competition

Infringement of trademark or trade name

Broader, more inclusive

Limited range

Identified in the mind of the public whether or not a mark or trade name is employed

Identified a peculiar symbol or mark with his goods and thereby has acquired a property right in such symbol or mark

Gives his goods the general appearance of the goods of another

Sells goods on which trademark is affixed

* Superseded by RA 8293, the Intellectual Property Code, Jan. 1, 1998. Page 97 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 TITLE FIVE CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS

Articles 190-194 of the Revised Penal Code are repealed by Republic Act No. 6425 “The Dangerous Drugs Act of 1972” which took effect on March 30, 1972 (Sec. 42), as amended by PD No. 1683 and further amended by RA No. 7659

THE DANGEROUS DRUGS ACT OF 2002 (R. A. NO. 9165, repealing R. A. NO. 6425 and RPC provisions on crimes related to opium and other prohibited drugs)

Policy 1. Campaign against Drugs and Protection of State 2. Balance Æ Medicinal Purpose 3. Rehabilitation

ACTS PUNISHABLE: 1. Importation of dangerous drugs (even for floral, decorative and culinary purposes) and/or controlled precursors and essential chemicals Qualifying circumstance: a. If the importation was through the use of a diplomatic passport, diplomatic facilities or any other means involving the offender’s official status. b. Organizes, manages or acts as a financier • The protector or coddler is also liable. 2. Sale, administration,QuickTime™ delivery, distribution and and a (Uncompressed) decompressor transportationTIFF of dangerous drugs are needed to see this picture. Qualifying circumstances: a. Within 100 meters from a school; b. If minors/mentally incapacitated individuals are used as runners, couriers and messengers of drug pushers; c. If the victim of the offense is a minor, or should a prohibited/regulated drug involved in any offense under this section

be the proximate cause of the death of a victim thereof d. Organizes, manages or acts as financier 3. Maintenance of a den, dive, or resort where any controlled precursor and essential chemical is sold or used Qualifying circumstances: 1. where a prohibited/regulated drug is administered, delivered, or sold to a minor who is allowed to use the same in such place; or 2. should a prohibited drug be the proximate cause of the death of the person using the same in such den, dive or resort. 3. Organizes, manages or acts as financier • •

The protector or coddler is also liable. If place owned by third person, the same shall be confiscated and escheated in favor of government IF 1. Complaint specifically allege that such place used intentionally for furtherance of crime 2. Prosecution proves intent on part of owner 3. Owner included as accused in criminal complaint

OPIUM DIVE OR RESORT: place where dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form (To be habitual – prior conviction, reputation of place) 4. Being employees or visitors of drug den who are aware of the nature of such place • For the employee who is aware of nature of place and any person who knowingly visits such place • A person who visited another who was smoking opium shall not be liable if the place is not an opium dive or resort 5. Manufacture of dangerous drugs and/or controlled precursors and essential chemicals Aggravating circumstance: Clandestine lab is undertaken under the following circumstances: 1. Any phase conducted in presence or with help of minors 2. Established/undertaken within 100m of residential, business, church or school premises Page 98 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

3. Lab secured/protected by booby traps 4. Concealed with legitimate business operations 5. Employment of practitioner, chemical engineer, public official or foreigner Qualifying circumstance: Organizes, manages or acts as financier Prima facie proof of manufacture: presence of controlled precursor and essential chemical or lab equipment in the clandestine lab CLANDESTINE LABORATORY: Any facility used for illegal manufacture of any dangerous drug and or controlled precursor and essential chemicals 6. Illegal chemical diversion of precursor and essential chemicals

Elements of possession of opium: (RA 6425) 1. occupancy or taking 2. intent to possess • •

controlled

CHEMICAL DIVERSION: sale, distribution, transport of legitimately imported, in-transit, manufactured or procured controlled precursors or essential chemicals to any person or entity engaged in manufacture of dangerous drug and concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud 7. Manufacture or delivery of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursor and essential chemicals Acts Punishable: 1. deliver 2. possess with intent to deliver 3. manufacture with intent to deliver the paraphernalia, knowing, or under circumstances where one reasonably should know Qualifying circumstance - use of a minor or a mentally incapacitated individual to deliver QuickTime™ and a TIFF (Uncompressed) decompressor such equipment, instrument, apparatus or other are needed to see this picture. paraphernalia 8. Possession of dangerous drugs, regardless of the degree of purity • Penalties are graduated to the amount of drugs (the only violation where quantity matters) • The kinds of drugs have different respective amounts for the graduation of penalties

Qualifying circumstance: Party, social gathering, or in the proximate company of at least 2 persons, regardless of quantity • Possession: unauthorized, either actual or constructive, irrespective of quantity, with intent to possess(full knowledge that what was possessed was any of prohibited or regulated drug)

What is punished is present possession, not past possession It is not necessary to allege in information that accused is not authorized to possess opium

of equipment, instrument, 9. Possession apparatus and other paraphernalia fit for introducing dangerous drugs into the body •

• •

Possession of such equipment = Prima facie evidence that possessor has used a dangerous drug and shall be presumed to have violated Sec. 15, use of dangerous drug. The possession of PARAPHERNALIA is absorbed by USE of dangerous drug. Qualifying circumstance: Party, social gathering, or in the proximate company of at least 2 persons.

10. Use of dangerous drugs • Must be found positive after a confirmatory test st • 1 conviction – minimum of 6 mos. of rehabilitation • 2nd conviction – imprisonment and fine • Where the accused is also found to be in possession of dangerous drugs, this Section shall not apply. Sec. 11, possession of dangerous drugs, shall apply. Hence, USE is subsumed by POSSESSION. Ex. If the offender is caught with possession of paraphernalia, possession of dangerous drugs and use of dangerous drugs, the offense is POSSESSION OF DANGEROUS DRUGS. 11. Cultivation or culture of plants which are dangerous drugs or are sources thereof Page 99 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

• The land/portions thereof and/or greenhouses in which any of the said plants is cultivated or cultured shall be confiscated and escheated to the State, unless the owner thereof prove that he did not know of such cultivation or culture despite the exercise of due diligence on his part.

Qualifying circumstance: 1) The land is part of the public domain 2) Organizes, manages or acts as financier 12. Failure to keep of original records transactions of dangerous drugs • •

of

Persons liable: practitioner, manufacturer, wholesaler, importer, distributor, dealer, or retailer The additional penalty of revocation of his license to practice his profession in case of a practitioner, or of his or its business license in case of manufacturer, seller, importer, distributor or dealer, shall be imposed.

13. Unnecessary prescription of dangerous drugs •

Person Liable: Practitioner who shall prescribe any dangerous drug for any person whose physical/physiological condition does not require the use of thereof or in the dosage therein.

14. Unlawful prescription of dangerous drugs

Also Punishable ATTEMPT AND CONSPIRACY TO COMMIT THE FOLLOWING OFFENSES: a. Importation of dangerous drugs and/or controlled precursor and essential chemical, b. Sale, trading, administration, dispensation, QuickTime™ and a TIFF (Uncompressed) and decompressor delivery, distribution transportation of are needed to see this picture. dangerous drugs and/or controlled precursor and essential chemical, c. Maintenance of a den, dive or resort for dangerous drugs, d. Manufacture of dangerous drugs and/or Scontrolled precursor and essential chemical, and e. Cultivation or culture of plants which are sources of dangerous drugs.

The penalty for such attempt and conspiracy is the same penalty prescribed for the commission. Thus, where the offense of sale was not consummated, the accused should not be prosecuted under mere possession, but under Sec. 26. (Justice Peralta)

OTHER PERSONS LIABLE: 1. Public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized, or surrendered dangerous drugs, plant sources of dangerous drugs, etc. 2. Any elective local or national official who have benefited from the proceeds of trafficking of dangerous drugs or have received any financial/material contributions or donations from natural or juridical persons guilty of drug trafficking. 3. If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal. 4. Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control and supervision of the partnership, corporation, association or judicial entity to which they are affiliated. 5. Any person who is found guilty of “planting” any dangerous drugs and/or controlled precursor and essential chemicals, regardless of quantity or purity (penalty of death). 6. Any person violating a regulation issued by the Dangerous Drugs Board 7. Any person authorized to conduct drug test who issues false or fraudulent drug test results knowingly, willfully or through gross negligence. 8. Any government officer tasked with the prosecution of drug-related cases under this Act who delays or bungles the prosecution. • For the purpose of enforcing the provisions of this Act, all school heads, supervisors and teachers shall be deemed to be persons in authority and, as such, are vested with the power to Page 100 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 apprehend, arrest, or cause the apprehension or arrest of any person who shall violate any of the said provision. They shall be considered as persons in authority if they are in the school or within its immediate vicinity, or beyond such immediate vicinity if they are in attendance in any school or class function in their official capacity as school heads, supervisors or teachers. • Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who shall, in turn, report the matter to the proper authorities. Failure to report in either case shall, after hearing, constitute sufficient cause for disciplinary action by the school authorities. (Sec. 44)

D.

E.

F.

If a person charged with an offense with an imposable penalty of less than 6 years and 1 day, and the Court or prosecutor, at any stage of the proceedings, finds that the person charged with an offense is a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and transmit records of the case to the Board. If the Board determines that public interest requires that such person be committed, it shall file a petition for commitment. After commitment and discharge, the prosecution shall continue. In case of conviction, the judgment shall, if certified by the center for good behavior, indicate that he shall be given full credit for the period of confinement; provided when the offense is use of dangerous drugs, and the accused is not a recidivist, the penalty shall have deemed to have been served in the center upon release.

G.

The period of prescription of the offense charged shall not run during the time that the respondent/accused is under detention or confinement in a center.

H.

A drug dependent who is discharged as rehabilitated, but does not qualify for exemption, may be charged under this Act, but shall be placed on probation and undergo community service in lieu of imprisonment and/or fine in the court’s discretion.

I.

A drug dependent who is not rehabilitated after the second commitment to the Center under the voluntary submission program shall, upon recommendation of the Board, be charged for violation of Sec. 15, (use of dangerous drug) and be prosecuted like any other offender. If convicted, he shall be credited for the period of confinement in the Center.

RULES FOR EXEMPTION FROM CRIMINAL LIABILITY OF DRUG DEPENDENTS THROUGH VOLUNTARY SUBMISSION: A.

B.

C.

Drug dependent who is finally discharged from confinement shall be exempt subject to the ff. conditions: 1) Complied with the rules of the Center 2) Never been charged or convicted of any offense under this Act, the Dangerous Drugs Act of 1972, the RPC, or any special penal laws. 3) No record of escape from the Center; provided if he escaped, he surrendered by himself or through his parent, spouse, th w/in guardian or relative w/in the 4 1 week. 4) Poses no serious danger to himself, family or community. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4th in a center and compliance with such conditions therefor as the QuickTime™ and a TIFF (Uncompressed) Dangerous Drugs Board decompressor may prescribe shall are needed to see this picture. exempt him from criminal liability for possession or use of the dangerous drug. Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement.

Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment. If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULES ON SUSPENSION OF SENTENCE FOR FIRST OFFENSE OF A MINOR: A. Supervision and rehabilitative surveillance of the Board and under such conditions that the court may impose for a period of 6-18 mos. Requisites for suspension: 1. Accused is a minor over 15 years at the time of the commission of the offense but not more than 18 years of age when the judgment should have been promulgated. 2. He has not been previously convicted of violating this Act, Dangerous Drugs Act of 1972, RPC or any special penal laws. 3. He has not been previously committed to a Center or to the care of a DOH-accedited physician. 4. The Dangerous Drugs Board favorably recommends that his/her sentence be suspended. •

Where the minor is under 15 years at the time of the commission, Art. 192 of Child and Youth Welfare Code shall apply (suspension of sentence and commitment)

B. The privilege of suspended sentence may be availed of only once. C. If the minor violates any of the conditions of his suspended sentence, rules of the Board, or rules of the center, the court shall pronounce judgment of conviction and he shall serve sentence as any other convicted person. D. Upon promulgation of sentence, the court may, in its discretion, place the accused under probation, or impose community service in lieu of imprisonment.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 PROCEDURE for CUSTODY and DISPOSITION TIME

TASK

1

Immediately after seizure

Inventory and photograph

2

24 hours upon confiscation

Submit to PDEA Forensic Lab for examination

3

24 hours after receipt

Issue certification of exam results under oath; provided, if the volume is too large, provisionally issue partial report, stating quantities still to be examined; provided further, issue final certification within next 24 hours.

4

72 hours after filing of criminal case

Court ocular inspection.

5

24 hours from ocular inspection

Destruction (through PDEA); provided, retain representative sample. Board to issue sworn certification of destruction. Submit certification and representative sample to the court.

6

After promulgation and judgment

Trial prosecutor to inform the Board of final termination of case. Request the court for leave to turn over representative samples to PDEA.

7

24 hours from receipt

Destruction

PRESENT Accused or the person/s from whom confiscated, or representative, media, DOJ and any elected public official who shall sign the copies of the inventory and be given a copy.

Accused or the person/s from whom confiscated, or representative, media, DOJ, civil society groups and any elected public official

Alleged offender or his representative shall be allowed to personally observe all of the proceedings and his presence shall not constitute an admission of guilt. In case the offender refuses or fails to appoint a representative after due notice in writing within 72 hours before the actual destruction, the SoJ shall appoint a member of the public attorney’s office to represent the former.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULES FOR LAB EXAMINATION OF APPREHENDED/ARRESTED OFFENDERS : 1. If reasonable ground to believe that offender is under the influence of dangerous drugs, conduct examination w/in 24 hours. 2. Positive results shall be challenged w/in 15 days after receipt of the result through a confirmatory test. 3. Confirmed test shall be prima facie evidence that offender has used dangerous drugs. 4. Positive test must be confirmed for it to be valid in a court of law. OTHER RULES: 1. In buy-bust operations, there is no law or rule requiring policemen to adopt a uniform way of identifying buy money. 2. Absence of ultraviolet powder on the buy money is not fatal for the prosecution. 3. If offender is an alien, an additional penalty of deportation without further proceedings shall be imposed immediately after service of sentence. 4. A person charged under the Dangerous Drugs Act shall not be allowed to avail of plea-bargaining. 5. A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by the offender. 6. If public official/employee is the offender, the maximum penalty shall be imposed. 7. Any person convicted of drug trafficking or pushing cannot avail of the Probation Law. 8. Immunity from prosecution and punishment shall be granted to an informant, provided the ff. conditions concur: 1) necessary for conviction 2) not yet in the possession of the State 3) can be corroborated on material points 4) has not been previously convicted of a crime of moral turpitude, except when there is no other direct evidence QuickTime™ and a TIFF (Uncompressed) decompressor 5) comply with conditions imposed by are needed to see this picture. the State 6) does not appear to be the most guilty 7) no other direct evidence available 10. Mandatory drug testing includes: 1) All persons charged with a criminal offense having an imposable penalty of not less than 6 years and 1 day. 2) All candidates for public office, whether appointed or elected.

11. Limited applicability of the RPC Æ The RPC shall not apply to this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death. •

Hence, since RPC nomenclature of penalties is used, the minor is then entitled to mitigating circumstances under the RPC (Martin Simon case). Thus, the minor does not receive the death penalty. (Justice Peralta)

People v. Adam GR 143842, 10/13/03 Appellant is guilty of the crime of attempted sale of shabu. As gleaned from the testimony of the poseur-buyer, the appellant merely showed the bag containing the shabu and held on to it before it was confiscated. There is no evidence that the poseurbuyer talked about and agreed with the appellant on the purchase price of the shabu. There is no evidence that the appellant handed over the shabu to the poseur buyer.

People v. Yang, GR 148077, 2/16/04 The consummation of the crime charged herein may be sufficiently established even in the absence of an exchange of money. The offer to sell and then the sale itself arose when the poseur-buyer showed the money to appellant, which prompted the latter to show the contents of the carton, and hand it over to the poseur-buyer. Mere showing of the said regulated drug does not negate the existence of an offer to sell or an actual sale. 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 illicit drugs. People v. Chua, GR 149878, 7/1/03 In a prosecution for illegal possession of a dangerous drug, mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act. Lack of criminal intent or good faith does not exempt appellants from criminal liability. People v. Cadley, GR 150735, 3/15/04 A prior surveillance is not a prerequisite for the validity of an entrapment or buy- bust operation, the conduct of which has no rigid or textbook method.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 People v. Del Norte, GR 149462, 3/31/04 In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as a prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. In this case, proof of the accused’s ownership of the house where the prohibited drugs were discovered is necessary.

(4) Black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguigue and other card games (5) Pak que, high and low, mahjong, domino and other games using plastic tiles and the like (6) Slot machines, roulette, pinball and other mechanical contraptions and devices

TITLE SIX CRIMES AGAINST PUBLIC MORALS

(7) Dog racing, boat racing, car racing and other forms of races (8) Basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations

P.D. 1602. PRESCRIBING STIFFER PENALTIES IN ILLEGAL GAMBLING

(Repealed Art. 195-199 RPC, PD 483 betting law, and PD 449 cockfighting law) PENALTY Prision correccional, medium or fine ranging from P1,000 to P6,000

(9) Banking or percentage game, or any other game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made

ACTS PUNISHED 1. Any person who shall directly or indirectly take part in any illegal or unauthorized activities or games of:

In case of recidivism: (1) Cockfighting, jueteng, Prision mayor, medium or fine jai-alai or horse racing QuickTime™ and a ranging from P5,000 to include bookie TIFF (Uncompressed) decompressor are needed to see this picture. to P10,000 operations and game fixing, numbers, bingo and other forms of lotteries (2) Cara y cruz, pompiang and the like (3) 7-11 and any game using dice

2. Any person who KNOWINGLY permits any form of gambling in an inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him Prision correccional maximum, fine of P6,000

1. Gambling in place with reputation of gambling, frequent gambling Page 105 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 place, government building or barangay hall 2. Maintainer or conductor of above gambling schemes Prison mayor, medium, with temporary absolute disqualification or fine of P6,000

Government official Æ maintainer, conductor, banker of gambling schemes; player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination

Prision correccional medium or fine P400 to P2,000

Any person who knowingly and without lawful purpose possess lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place

Temporary absolute disqualification

Barangay official who with knowledge of gambling house/place in his jurisdiction fails to abate or take action

Prision correccional maximum or fine P500 to P2000

Security officer, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have reputation of gambling place or where gambling activities are being held QuickTime™ and a

TIFF (Uncompressed) decompressor are needed to see this picture.

NOTES: ƒ Playing for money is not a necessary element. The law’s purpose is to prohibit absolutely those games. ƒ Any other games if with wager of money, articles, or value are at stake or made ƒ Individual/team contests: game-fixing, pointshaving, other machinations

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Spectators are not liable: must directly or indirectly take part; The law does not make it an offense to be present in a gambling house. A game or scheme is punishable even if winning depends upon skill as long as wagers (consisting of money, articles of value or representative of value) are at stake or made.

Lottery: Requisites: 1. Consideration 2. Chance 3. Prize/advantage/inequality in amount value which is in the nature of prize

or

NOTES: ƒ Distribution of prizes by chance ƒ No lottery where there is full value of money(criminal case-Olsen), but if inducement to win prize is reason for purchase/subscription/others then even if full value for money is received—still lottery(Administrative Code, postal law-El Debate) ƒ Proof that game took place or is about to take place is not necessary; burden of evidence is shifted to accused to show that his possession is lawful or is not connected with jueteng game; but proof to the contrary is necessary when jueteng lists pertain to games played on other dates MAINTAINER – person who sets up and furnishes means to carry on gambling or scheme CONDUCTOR – person who manages or carries on gambling game or scheme ART. 196: IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS (ALREADY REPEALED)

P.D. No. 483: BETTING, GAME-FIXING OR POINT-SHAVING AND MACHINATIONS IN SPORT CONTESTS

NOTES: ƒ BETTING - betting money or any object or article of value or representative of value upon the result of any game, races and other sports contests Page 106 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ƒ

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GAME-FIXING – any arrangement, combination, scheme or agreement by which the result of any game, races or sports contests shall be predicted and/or knows other than on the basis of the honest playing skill or ability of the players or participants POINT-SHAVING – any such arrangement, combination, scheme or agreement by which the skill of ability of any player or participant in a game, races or sports contests to make points or scores shall be limited deliberately in order to influence the result thereof in favor of one or the other team, player or participant therein GAME MACHINATION – any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sports contests Clearance for arrest, detention or prosecution – No person who voluntarily discloses or denounces to the President of the Philippine Amateur Athletic Federation or to the National Sports Association concerned and/or to any law enforcement/police authority any of the acts penalized by this Decree shall be arrested, detained and or prosecuted except upon prior written clearance from the President of the Philippines and/or the Secretary of National Defense

upon resolution, subject to approval of Chief of Constabulary or his authorized representative—not allowed within month of local fiesta of for more than two occasions a year in same city or municipality Cockfighting for Entertainment of Tourists or for Charitable Purposes: Chief of Constabulary or his authorized representative may also allow the holding of cockfighting for: 1. Entertainment of foreign dignitaries 2. Tourists 3. Balikbayan 4. For support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President, upon resolution of a provincial board, city or municipal council - In licensed cockpits or in playgrounds or parks - Extended for only one time, for a period not exceeding 3 days, within a year to a province, city or municipality

NOTES: ƒ Permitting gambling of any kind in cockpit is punished under the same Decree (Owner, manger or lessee of cockpit that permits gambling shall be criminally liable) ƒ Spectators in cockfight are not liable unless he participates as bettor

ART. 198: ILLEGAL BETTING ON HORSE RACES (ALREADY REPEALED)

COCKFIGHTING LAW OF 1974

Holding of Cockfights – Cockfighting shall be QuickTime™ and a allowed only in licensed cockpits: TIFF (Uncompressed) decompressor are needed to see this picture. 1. Sundays 2. Legal Holidays, except: December 30, June 12, November 30, Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum 3. During local fiestas for not more than 3 days 4. Provincial, city or municipal agriculture, commercial or industrial fair, carnival or exposition for a similar period of three days

NOTES: ƒ Gambling in all its forms, unless allowed by law, is generally prohibited. The prohibition does not mean that the Government cannot regulate it in the exercise of police power. ƒ There are particular days where Cockfighting and Horse Racing are allowed. Betting in Horse Races is allowed during periods provided by law but betting in cockfights is prohibited at all times. ƒ Sports Contests: Betting, Game-fixing, PointShaving, Game Machinations prohibited

Chapter Three - OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ART. 200: GRAVE SCANDAL Elements: 1. That the offender performs an act; 2. That such act/s be highly scandalous as offending against decency or good customs; 3. That the highly scandalous conduct does not expressly fall within any other article of the RPC; and 4. That the act/s complained of be committed in a public place or within the public knowledge or view. ƒ

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Grave scandal consists of acts which are offensive to decency and good customs. They are committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts. The public view is not required. It is sufficient if committed in public place. For being committed within the public knowledge, it may occur even in a private place; the number of people who sees it is not material. Decency means properly observing the requirements of modesty, good taste Customs refer to established usage, social conventions carried on by tradition and enforced by social disapproval in case of violation. 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 of such character as to cause public scandal to those witnessing it

Considered as obscene literature or immoral or indecent plays, scenes or acts: 1. those w/c glorify criminals or condone crimes; 2. those w/c serve no other purpose but to satisfy the market for violence, lust or pornography; 3. those w/c offend against any race or religion; 4. those w/c tend to abet the traffic and the use of prohibited drugs; and 5. those that are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts. NOTES: ƒ Morals imply conformity to generally accepted standards of goodness or rightness in conduct or character. ƒ The test of obscenity is whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency. ƒ Mere nudity in paintings and pictures is not obscene. ƒ Pictures w/ a slight degree of obscenity having no artistic value and being intended for commercial purposes fall within this article. ƒ Publicity is an essential element.

ART. 202: VAGRANTS AND PROSTITUTES

. ART. 201: IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS Persons liable: 1. Those who publicly expound or proclaim doctrines that are contrary to public morals. 2. Authors of obscene literature, published with their knowledge in any form. 3. Editors publishingQuickTime™ such obscene literature. and a TIFF (Uncompressed) decompressor 4. Owners or of establishments are operators needed to see this picture. selling obscene literature. 5. Those who exhibit indecent or immoral plays, scenes, acts or shows in theaters, fairs, cinemas or any other place. 6. Those who sell, distribute, or exhibit prints, engraving, sculptures or literature which are offensive to morals.

Who are considered VAGRANTS: 1. Those who have no apparent means of subsistence and who have the physical ability to work yet neglect to apply themselves to some useful calling; 2. Persons found loitering around public and semi-public places without visible means of support; 3. Persons tramping or wandering around the country or the streets with no visible means of support; 4. Idle or dissolute persons lodging in houses of ill-fame; 5. Ruffians or pimps and those who habitually associate with prostitutes (may include even the rich); and 6. Persons found loitering in inhabited or uninhabited places belonging to others, without any lawful or justifiable reason,

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 provided the act does not fall within any other article of the RPC. PROSTITUTES - women who habitually(not just 1 man) indulge in sexual intercourse or lascivious conduct for money or profit (If a man indulges in the same conduct, the crime committed is vagrancy.) DISSOLUTE – lax, unrestrained, immoral (includes maintainer of house of prostitution) RUFFIANS – brutal, violent, lawless If fenced and with prohibition of entry If fenced and entered to hunt/fish If not fenced and with no prohibition of entry

Trespass To Dwelling Attempted theft Vagrancy

P.D. 1653 - MENDICANCY

Persons liable: 1. Mendicant – Those with no visible and legal means of support, or lawful employment and physically able to work but neglects to apply himself to lawful calling and instead uses begging as means of living (higher penalty if convicted 2 or more times) 2. Any person who abets mendicancy by giving alms on public roads, sidewalks, parks and bridges except if given through organized agencies operating under rules and regulations of Ministry of Public Information NOTE: Giving alms through organized agencies operating under the rules and regulations of the Ministry of Public Information is not a violation of the Mendicancy Law.

TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS

Chapter One - PRELIMINARY PROVISIONS

ART. 203: WHO ARE PUBLIC OFFICERS Requisites: To be a public officer, one must be 1. Taking part in the performance of public functions in the Government, or performing public duties as an employee, agent or subordinate official, of any rank or class, in the government or any of its branches; and 2. That his authority to take part in the performance of public functions or to perform public duties must be a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority. NOTES: ƒ Public officers include every public servant from the lowest to the highest rank provided that they exercise public functions. ƒ A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer. Malfeasance Misfeasance

Under R.A. 9344 persons below eighteen (18) years of age shall be exempt from prosecution QuickTime™ and a TIFF (Uncompressed) decompressor and prostitution under for the crime of vagrancy are needed to see this picture. Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention of the Rights of the Child:

Nonfeasance

Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do Failure of an agent to perform his undertaking for the principal

Misfeasance: 1. Knowingly rendering unjust judgment 2. Rendering judgment through negligence 3. Rendering unjust interlocutory order 4. Malicious delay in the administration of justice Nonfeasance: 1. dereliction of duty in prosecution of offenses Page 109 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. betrayal of trust by an attorney or solicitor – revelation of secrets Malfeasance: 1. Direct bribery 2. Indirect bribery

Chapter Two - MALFEASANCE AND MISFEASANCE IN OFFICE

ART. 204: KNOWINGLY RENDERING AN UNJUST JUDGMENT

2. That he renders judgment in a case submitted to him for decision; 3. That the judgment is manifestly unjust; and 4. That it is due to inexcusable negligence or ignorance. MANIFESTLY UNJUST JUDGMENT – manifestly contrary to law that even a person having meager knowledge of law cannot doubt the injustice; not abuse of discretion or mere error of judgment

ART. 206: UNJUST INTERLOCUTORY ORDER

Elements: 1. That the offender is a judge; 2. That he renders a judgment in the case submitted to him for decision; 3. That the judgment is unjust; and 4. That the judge knows that the decision is unjust.

Elements: 1. That the offender is a judge; and 2. That he performs any of the following acts: a. knowingly renders an unjust interlocutory order or decree, or b. renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance.

NOTES: ƒ A judgment is a final consideration and determination by a court of competent jurisdiction of the issues submitted to it in an action or proceeding. ƒ An unjust judgment is one which is contrary to law, or not supported by the evidence, or both.

INTERLOCUTORY ORDER - one issued by the court deciding a collateral or incidental matter; it is not a final determination of the issues of the action or proceeding

An unjust judgment may result from: 1. error (w/ bad faith) 2. ill-will or revenge 3. bribery ƒ ƒ ƒ

There must be evidence that the decision rendered is unjust. It is not presumed. Knowingly – deliberately or maliciously, conscious and deliberate intent to do an injustice; (no liability if error in good faith) Abuse of discretion or mere error of judgment QuickTime™ and a cannot likewise serve as basis for rendering TIFF (Uncompressed) decompressor are needed to see this picture. an unjust judgment in the absence of proof or an allegation of bad faith (motive or improper consideration).

ART. 205: JUDGMENT RENDERED THROUGH NEGLIGENCE Elements: 1. That the offender is a judge;

ART. 207: MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE Elements: 1. That the offender is a judge; 2. That there is a proceeding in his court; 3. That he delays the administration of justice; and 4. That 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. NOTE: Mere delay without malice is not punishable.

ART. 208: PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE Acts punishable: 1. By maliciously refraining from instituting prosecution against violators of the law 2. By maliciously tolerating the commission of offenses Page 110 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dereliction of duty in the prosecution of offenses: Elements: 1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses; 2. That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission; (If gift/promise is a consideration for his conduct, crime is direct bribery.) and 3. That the offender acts with malice and deliberate intent to favor the violator of the law. NOTES: ƒ Prevaricacion means the negligence and tolerance in the prosecution of an offense. ƒ There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. However, a fiscal is under no compulsion to file an information based upon a complaint if he is convinced that the evidence before him is insufficient to warrant filing an action in court. ƒ The crime must be proved first before an officer can be convicted of dereliction of duty. ƒ “Maliciously” signifies deliberate evil intent; a dereliction of duty caused by poor judgment or honest mistake is not punishable. ƒ A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him, is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory. ƒ This article not applicable to revenue officers. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

ART. 209: BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR – REVELATION OF SECRETS Acts punishable: 1. Causing damage to client either a. by any malicious breach professional duty, or

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b. by inexcusable negligence or ignorance. 2. Revealing any of the secrets of his client learned by him in his professional capacity. Here, damage is not necessary. 3. Undertaking the defense of the opposing party in the same case, without the consent st of his 1 client, after having undertaken the defense of a client or having received confidential information from said client.

ART. 210: DIRECT BRIBERY Elements: 1. That the offender be a public officer; 2. That the offender accepts an offer or promise or receives a gift or present by himself or through another; 3. That such offer or promise be accepted or gift/present received by the public officer (Mere agreement consummates the crime and delivery of consideration is not necessary) a. with a view to committing some crime; b. in consideration of an execution of an act which does not constitute a crime, but the act must be unjust; (contemplates an accepted gift, and an overt act) c. to refrain from doing something which is his official duty to do; (should not be a crime) 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties. (need not be a statutory duty) NOTES: ƒ For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him. ƒ Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties. ƒ This felony cannot be frustrated. It may only be attempted or consummated.

Bribery exists when the gift is: 1. voluntarily offered by a private person

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. solicited by the public officer and voluntarily delivered by the private person 3. solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (Here, the crime by the giver is not corruption of public officials due to his involuntariness.) ƒ

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Actual receipt of the gift is not necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer. The gift must have a value or be capable of pecuniary estimation. It could be in the form of money, property or services. If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime. The crime of bribery cannot be complexed with or absorbed by other crimes as the penalty for bribery is in addition to the penalties for those other crimes. The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This element is not necessary in prevaricacion.

BRIBERY (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution.

ROBBERY (294) When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him of his personal property. Victim parts with his money Victim is deprived of or property voluntarily. his money or property by force or intimidation. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

ANTI-GRAFT AND CORRUPT PRACTICES ACT R.A. NO. 3019

Persons Liable: 1. Any public officer who shall perform any of the following acts: a. 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. NOTE: Persuasion need not be successful. The gravamen of the offense is the persuasion. a. 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 party wherein the public officer in his official capacity has to intervene under the law. b. 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. NOTE: If the act does not fall under b and c, then Art. 210, direct bribery, may apply. (Justice Peralta) d. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. NOTE: The act is mala prohibita. Hence, the public official need not have even recommended the employment. (Justice Peralta) e. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage, or preference in the discharge of his official, administrative or judicial function through manifest partiality, evident bad faith or gross inexcusable negligence. This Page 112 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. NOTES: ƒ The best defense is that the partiality was not manifest. That the partiality is manifest is a heavy burden on the prosecution. (Justice Peralta). ƒ Another defense is the Arias doctrine. The defense applies in a case where the accused is an approving officer and is on trial for signing an unjust contract. ƒ The defense is that the approving officer relied on the prior signatures of his subordinates and had no reason to suspect wrong-doing and was swamped with a lot of documents on that day that he signed. ƒ There is no attempted or frustrated stage of the crime defined in Sec. 3(e) of R.A. No. 3019. f.

Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. ƒ

In determining whether the contract was manifestly and grossly disadvantageous, it is not merely consideration of the pecuniary amount involved. (Justice QuickTime™ and a TIFF (Uncompressed) decompressor Peralta) are needed to see this picture.

h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or take part in his official capacity, or in which he is prohibited by the constitution or by any law from having any interest.

Under the Code of Professional Conduct, the public officer MUST divest his interest.

i.

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel, or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

j.

Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

k.

Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

2.

Any person having family or close personal relation with any public official who shall 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 person having some business, transaction, application, request, or contract with the government in which such public official has to intervene (Sec. 4)

3.

Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). (Sec. 4)

4.

Spouse or any relative, by consanguinity or rd civil degree, of the affinity, within the 3 President of the Philippines, the Vice-President, the President of the Senate, or Speaker of the House of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the government (Sec. 5). This prohibition shall not apply to: 1. 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 Page 113 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the government along the same line of business; 2. Any transaction, contract or application already existing or pending at the time of such assumption of public office; 3. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; 4. Any act lawfully performed in an official capacity or in the exercise of a profession. 5.

Any member of Congress, during the term for which he has been elected, who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term.

6. Any public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution and acquires or receives such interest during his incumbency. •

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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 30 days after such approval to retain such interest.

Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities within 30 days after assuming office and th thereafter on or before the 15 day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office (Sec. 7).

Prima Facie Evidence of and Dismissal Due to QuickTime™ and a TIFF (Uncompressed) Unexplained Wealth (Sec. 8) decompressor are needed to see this picture. 1. If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. 2. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their

acquisition through legitimate means cannot be satisfactorily shown. 3. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income. NOTE: Competent court is the Sandiganbayan (Sec. 10). General Rule: Prescriptive period is 15 years (Sec. 11). Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14). NOTES: ƒ No public officer shall be allowed to resign or retire pending an investigation ƒ Suspension while pending in court after valid information (cannot be automatic), and loss of benefits if convicted by final judgment; maximum duration of preventive suspension is 90 days; acquittal Æ reinstatement and salaries and benefits which he failed to receive ƒ The courts are not bound by the statement of assets and liabilities filed. ƒ Penalty of forfeiture can be applied retroactively.

ART. 211: INDIRECT BRIBERY Elements: 1. That the offender is a public officer; 2. That he accepts gifts; and 3. That the said gifts are offered to him by reason of his office. NOTES: ƒ The gift is given in anticipation of future favor from the public officer. ƒ There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer.

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There is no attempted or frustrated indirect bribery. Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas, are liable under PD 46. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service.

Direct bribery

Indirect bribery

Officer agrees to perform or refrain from doing an act.

Not necessary that the officer do an act.

bribery, and any corruption of public officials, provided that: 1. The information must refer to consummated violations of any of the above-mentioned provisions of law, rules and regulations 2. Information and testimony are necessary for the conviction of the accused public officer, not in possession of the State, and can be corroborated on its material points 3. Informant or witness has not been previously convicted of a crime involving moral turpitude 4. Immunity shall not attach should the information and/or testimony is false and malicious or made only for the purpose of harassing, molesting or in any way prejudicing the public officer denounced

ARTICLE 211-A. QUALIFIED BRIBERY ELEMENTS: 1. That the offender is a public officer entrusted with law enforcement; 2. That he refrains from arresting/ prosecuting offender for crime punishable by reclusion perpetua and/or death (if lower penalty than stated above, direct bribery is the crime); and 3. In consideration of any offer, promise or gift.

Chapter Three – FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

ARTICLE 213. FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES A. FRAUDS AGAINST PUBLIC TREASURY

ARTICLE 212. CORRUPTION OF PUBLIC OFFICIALS ELEMENTS: 1. That the offender makes offers or promises or gives gifts or presents to a public officer; and 2. That 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. • • •

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are needed to see picture. The offender is the giver ofthisthe gift or the offeror of the promise. The act may or may not be accomplished. Bribery is usually proved by evidence acquired in entrapment Under PD 749, givers of bribes and other gifts as well as accomplices in bribery and other graft cases are immune from prosecution if they voluntarily give any information about any commission of direct, indirect, and qualified

ELEMENTS: 1. That the offender be a public officer; 2. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity; 3. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds; and 4. That the accused had intent to defraud the government. •

The 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.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. That he commits any of the frauds or deceits enumerated in art. 315 and 316. (estafa, swindling)

B. ILLEGAL EXACTIONS ELEMENTS: 1. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts; and 2. That 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, or b. failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, or 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. •

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Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection and damage to the government is not required. If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery. When there is deceit in demanding larger fees, the crime committed is estafa. This felony may be complexed with malversation. Ex. A tax collector who collected a sum larger than that authorized by law and spent all of them is guilty of two crimes, namely: (1) illegal exaction, for demanding a greater amount; and (2) malversation for misappropriating the amount collected. A public officer who has the duty to collect taxes is directly accountable to the Government for money he collected since such money acquires the character of a public fund. Officers and employees of the BIR or Customs are not covered by QuickTime™ this article and a but by the NIRC TIFF (Uncompressed) decompressor or the Administrative are needed Code. to see this picture.

ART. 214. OTHER FRAUDS ELEMENTS: 1. That the offender is a public officer; 2. That he takes advantage of his official position; and

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RTC has jurisdiction over the offense because the principal penalty is disqualification.

ARTICLE 215. PROHIBITED TRANSACTIONS ELEMENTS: 1. That the offender is an appointive public officer; 2. That he becomes interested, directly or indirectly, in any transaction of exchange or speculation; 3. That the transaction takes place within the territory subject to his jurisdiction; and 4. That he becomes interested in the transaction during his incumbency. •

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Examples of transactions of exchange or speculation are buying and selling stocks, commodities, land, etc. wherein one hopes to take advantage of an expected rise or fall in price Æ for gain or profit and not merely as investment Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation. Appointive public officials should not devote himself to commerce ARTICLE 216. POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER

WHO ARE LIABLE: 1. Public officer who became interested in any contract or business in which it is his official duty to intervene. 2. Experts, arbitrators and private accountants who took part in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted. 3. Guardians and executors with respect to property belonging to their wards or the estate. • Actual fraud is not necessary • Intervention must be by virtue of public office held • Act is punished because of the possibility that fraud may be committed or that the officer

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 may place his own interest above that of the Government or of the party which he represents. • Constitutional prohibitions exist - 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 Goevrnment - Executive – cannot hold any other office - Constitutional Commission – cannot hold any other office, engage in practice of profession

AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER RA 7080

DEFINITION OF ILL-GOTTEN WEALTH: Any asset, property, business enterprise or material possession of any person acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes: A. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury. B. 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; C. 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; QuickTime™ and a D. By obtaining, receiving or accepting, directly TIFF (Uncompressed) decompressor are needed to see this picture. or indirectly, any shares of stock, equity or any other form of interest or participation, including the promise of future employment in any business enterprise or undertaking. E. By establishing agricultural, industrial or commercial monopolies or other combinations, and/or implementation of decrees and orders intended to benefit particular persons or special interests;

F. 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 or prejudice of the Filipino people and the Republic of the Philippines. PERSONS LIABLE: A. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates and subordinates or other persons, amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described under above in the aggregate amount or total value of at least 50 million pesos, shall be guilty of the crime of plunder (as amended by RA 7659). B. Any person who participated with the said public officer in the commission of plunder. JURISDICTION: Sandiganbayan. RULE OF EVIDENCE: For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme and conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. PRESCRIPTION: 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches or estoppel.

ESTRADA VS. SANDIGANBAYAN, GR NO. 148560, NOVEMBER 21, 2001 what is meant by “combination” and “series” of overt or criminal acts under the plunder law? When the plunder law speaks of “combination”, it is referring to at least two (2) acts falling under different categories of enumeration provided in sec. 1, par. (d). example: raids on the public treasury in sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the national government under sec. 1 par. (d), subpar. (3). On the other hand, to constitute a “series” there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Page 117 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. Appropriated the funds or property b. Took or misappropriated them c. Consented or, through abandonment or negligence, permitted any other person to take such public funds or property.

sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which falls under sec. 1, par. (d), subpar. (1). verily, had the legislature intended a technical or distinctive meaning for “combination” and “series”, it would have taken greater pains in specially providing for it in the law. • Joseph Ejercito Estrada vs. Sandiganbayan, G.R. No. 148560, November 21, 2001 is the crime of plunder malum in se or malum prohibitum? Plunder is a crime of malum in se because the constitutive crimes are mala in se. the elements of mens rea must be proven in a prosecution for plunder. moreover, any doubt as to whether the crime of plunder is malum in se must be deemed to have been resolved in the affirmative decision of congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. the legislative declaration in r.a. 7659 that plunder is a heinous offense implies that it is 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.

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• Chapter Four – MALVERSATION OF PUBLIC FUNDS OR PROPERTY • ARTICLE 217. MALVERSATION OF PUBLIC FUNDS OR PROPERTY ELEMENTS: 1. That the offender be a public officer (or private person if entrusted with public funds or if in connivance with public QuickTime™ and a officers); TIFF (Uncompressed) decompressor are needed to see this picture. 2. That he had the custody or control of funds or property (if not accountable for the funds, crime committed is theft or qualified theft); 3. That those funds or property were public funds or property (even if private funds, they become public if attached, seized, deposited or commingled with public funds); and 4. That he…

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It is not necessary that the offender profited by his malversation. His being remiss in the duty of safekeeping public funds violates the trust reposed. Public funds taken need not be misappropriated. Malversation is otherwise called embezzlement. It can be committed either with malice or through negligence or imprudence (penalty is the same). In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation - contemplates public officer who receives money or property from government for which he is bound to account, must have authority to collect or receive The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa. Government funds include revenue funds and trust funds. If funds or property placed in custody of public officer, and they are accountable, such funds or property partake nature of a public fund. A public officer who has qualified charge of gov’t property without authority to part with its physical possession upon order of an immediate superior cannot be held liable under this article. A qualified charge of properties does not qualify to possession contemplated in the crime of malversation where the possessor is only accountable to his immediate superior and not the government; his superior is the one accountable to the government Private individuals can also be held liable for malversation under 2 circumstances: 1. when they are in conspiracy with public officers; and 2. when they have charge of national, provincial or municipal funds, revenues or property in any capacity. In malversation through negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice. The measure of negligence to be observed is the standard of care commensurate with the occasion. Page 118 of 174

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When malversation is not committed through negligence, lack of criminal intent or good faith is a defense. The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise. Returning the embezzled funds is not an exempting circumstance but only mitigating. There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place. A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation. Demand by or damage to the government are not necessary elements of the crime of malversation. MALVERSATION (217)

Funds or property usually public Offender is usually a public officer who is accountable for the public funds/property Crime is committed by appropriating, taking, or misappropriating/consentin g, or through abandonment or negligence, permitting any other person to take the public funds/property

ESTAFA WITH ABUSE OF CONFIDENCE (315) Funds/property are always private Offender is a private individual or even a public officer who is not accountable for public funds/property Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property

QuickTime™ and a People v. Hipol, GR 7/22/03 TIFF 140549, (Uncompressed) decompressor are needed to see this picture. The fact that the obligation to deposit the collections of the City Treasurer's Office is not covered by appellant's official job description is of no legal consequence in a prosecution for Malversation. What is essential is that appellant had custody or control of public funds by reason of the duties of his office.

ELEMENTS: 1. That the offender is a public officer, whether in the service or separated therefrom; 2. That he must be an accountable officer for public funds or property; 3. That he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor; and 4. That he fails to do so for a period of two months after such accounts should be rendered. • Demand and misappropriation are not necessary.

ARTICLE 219. FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY ELEMENTS: 1. That the offender is a public officer; 2. That he must be an accountable officer for public funds or property; and 3. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled. • The act of leaving the Philippines must be unauthorized or not permitted by law.

ARTICLE 220. ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY ELEMENTS OF TECHNICAL MALVERSATION: 1. That the offender is a public officer; 2. That there is public fund or property under his administration; 3. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation) ; and 4. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance. •

• ARTICLE 218. FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNT FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNT

To distinguish this article with Art 217 (malversation), in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use. Absence of damage is only a mitigating circumstance.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ARTICLE 221. FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ACTS PUNISHED: 1. By failing to make payment by a public officer who is under obligation to make such payment from Government funds in his possession 2. By refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration (must be malicious) ELEMENTS: 1. That the public officer has gov’t. funds or property in his possession. 2. That he is under obligation to either: a. make payment from such funds, or b. to deliver property in his custody or administration when ordered by competent authority; and 3. That he maliciously fails or refuses to do so. •

PERSONS LIABLE UNDER ART. 217 TO 221: 1. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property. Example: a withholding tax agent 2. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual.

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ARTICLE 223. CONNIVING WITH OR CONSENTING TO EVASION ELEMENTS: 1. That the offender is a public officer (on duty); 2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; 3. That such prisoner escaped from his custody; and 4. That he was in connivance with the prisoner in the latter’s escape. •

Penalty is based on value of funds/property to be delivered.

ARTICLE 222. OFFICERS INCLUDED IN THE PRECEDING PROVISIONS

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Chapter Five – INFIDELITY OF PUBLIC OFFICERS

Sheriffs and receivers fall under the term “administrator” Judicial administrator not covered by this and a article.(Appointed toQuickTime™ administer estate of TIFF (Uncompressed) decompressor are needed to see this picture. deceased and not in charge of property attached, impounded or placed in deposit by public authority) Private property is included if it is attached, seized or deposited by public authority.

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DETENTION PRISONER - A person becomes a detention prisoner from the moment he is booked. This refers to the accomplishment of the booking sheet and made to fill a form (sic) where he is finger printed. From that time on, he is already a detention prisoner even if he is not yet incarcerated.” (ApostThe ol) 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. Neither is mere leniency or laxity in the performance of duty constitutes of infidelity. There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment.

ARTICLE 224. EVASION THROUGH NEGLIGENCE ELEMENTS: 1. That the offender is a public officer; 2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; and 3. That such prisoner escapes through his negligence. NOTES: • The article punishes a definite laxity which amounts to deliberate non-performance of a duty.

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The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford him complete exculpation. The liability of an escaping prisoner: a. if he is a prisoner by final judgment, he is liable for evasion of service (art 157) b. if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender). The negligent public officer suffers the same penalty regardless of whether the prisoner is a convict or merely a detention prisoner.

ARTICLE 225. ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER ELEMENTS: 1. That the offender is a private person; 2. That the conveyance or custody of a prisoner or person under arrest is confided to him; 3. That the prisoner or person under arrest escapes; and 4. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence. •

NOTES: • The document must be complete and one by which a right could be established or an obligation could be extinguished. • Books, periodicals, pamphlets, etc. are not documents. • “Papers” would include checks, promissory notes and paper money. • A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers. • Removal of a document or paper must be for an illicit purpose. There is illicit purpose when the intention of the offender is to: a. tamper with it, b. to profit by it, or c. to commit any act constituting a breach of trust in the official care thereof. • 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. • Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose. • Delivering the document to the wrong party is infidelity in the custody thereof. • The damage may either be great or small. • The offender must be in custody of such documents because of his official capacity.

This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested.

ARTICLE 226. REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS ELEMENTS OF INFIDELITY IN CUSTODY OF DOCUMENTS: 1. That the offender be a public officer; 2. That he abstracts, destroys or conceals a QuickTime™ and a document or TIFFpapers; (Uncompressed) decompressor are needed to see this picture. 3. That the said document or paper should have been entrusted to such public officer by reason of his office; and 4. That damage, whether serious or not, to a third party or to the public interest should have been caused.

ARTICLE 227. OFFICER BREAKING SEAL ELEMENTS: 1. That the offender is a public officer; 2. That he is charged with the custody of papers or property; 3. That these papers or property are sealed by proper authority; and 4. That he breaks the seals or permits them to be broken. • •

It is the breaking of the seals and not the opening of a closed envelope which is punished. Damage or intent to cause damage is not necessary; damage is presumed. ARTICLE 228. OPENING OF CLOSED DOCUMENTS

ELEMENTS: 1. That the offender is a public officer; Page 121 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. That any closed papers, documents, or objects are entrusted to his custody; 3. That he opens or permits to be opened said closed papers, documents or objects; and 4. That he does not have proper authority. Damage is not necessary.

Article 229. Revelation of secrets by an officer. ELEMENTS OF PAR. 1 (SECRETS KNOWN BY REASON OF HIS OFFICIAL CAPACITY): 1. That the offender is a public officer; 2. That he knows of a secret by reason of his official capacity; 3. That he reveals such secret without authority or justifiable reasons; and 4. That damage, great or small, be caused to the public interest. ƒ ƒ ƒ

Secret must affect public interest. Secrets of a private individual is not included. Espionage for the benefit of another State is not contemplated by the article. If regarding military secrets or secrets affecting state security, the crime may be espionage.

ELEMENTS OF PAR. 2 (WRONGFULLY DELIVERING PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED): 1. That the offender is a public officer; 2. That he has charge of papers; 3. That those papers should not be published; 4. That he delivers those papers or copies thereof to a third person; 5. That the delivery is wrongful; and 6. That damage be caused to public interest. ƒ

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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. If the papers contain secrets which should QuickTime™ and a TIFF (Uncompressed) decompressor not be published, and the public officer are needed to see this picture. having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents. Damage is essential to the act committed.

ARTICLE 230. PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL.

ELEMENTS: 1. That the offender is a public officer; 2. That he knows of the secret of a private individual by reason of his office; and 3. That he reveals such secrets without authority or justifiable reason. ƒ ƒ ƒ

Revelation to one person is sufficient. If the offender is an attorney, he is properly liable under Art. 209 (betrayal of trust by an attorney). Damage to private individual is not necessary.

Chapter Six - OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

ARTICLE 231. OPEN DISOBEDIENCE. ELEMENTS: 1. That the offender is a judicial or executive officer; 2. That there is a judgment, decision or order of superior authority; 3. That such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; and 4. That the offender without any legal justification openly refuses to execute the said judgment, decision or under which he is duty bound to obey. ƒ

Judgment should have been rendered in a hearing and issued within proper jurisdiction and with all required legal solemnities.

ARTICLE 232. DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER; WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER. ELEMENTS: 1. That the offender is a public officer; 2. That an order is issued by his superior for execution; 3. That he has for any reason suspended the execution of such order; Page 122 of 174

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. That his superior disapproves the suspension of the execution of the order; and 5. That the offender disobeys his superior despite the disapproval of the suspension. ƒ

A public officer is not liable if the order of the superior is illegal.

ARTICLE 233. REFUSAL OF ASSISTANCE. ELEMENTS: 1. That the offender is a public officer; 2. That a competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; and 3. That the offender fails to do so maliciously. ƒ ƒ ƒ ƒ

This felony involves a request from one public officer to another. Damage to the public interest or third party is essential. Demand is necessary. Demand must be from competent authority

ELEMENTS: 1. That the offender is elected by popular election to a public office; 2. That he refuses to be sworn in or discharge the duties of said office; 3. That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office.

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If the elected person is disqualified, refusal to be sworn in or to discharge duties of the office is justified. Refusal to discharge the duties of appointive office is not covered by article.

The public officer must have actual charge of the prisoner in order to be held liable (not merely by legal fiction) 1. Offended party: Convict by final judgment or detention prisoner ƒ To be considered a detention prisoner, the person arrested must be placed in jail even for just a short time. ƒ Maltreatment not due to personal grudge. 2. Offender may also be held liable for physical injuries or damage caused. (Penalty provided in Article 235 is imposed in addition to penalty for injury or damage caused)

ARTICLE 234. REFUSAL TO DISCHARGE ELECTIVE OFFICE.

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3. That he maltreats such prisoner in either of the following manners: a. by overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either – i. by the imposition of punishments not authorized by the regulations, or ii. by inflicting such punishments (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.

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ARTICLE 236. ANTICIPATION OF DUTIES OF A PUBLIC OFFICE.

ELEMENTS: 1. That the offender is entitled to hold a public office or employment, either by election or appointment; 2. That the law requires that he should first be sworn in and/or should first give a bond; 3. That he assumes the performance of the duties and powers of such office; and 4. That he has not taken his oath of office and/or given the bond required by law.

ARTICLE 235. MALTREATMENT OF PRISONERS. ELEMENTS: 1. That the offender is a public officer or employee; 2. That he has charge of a prisoner or detention prisoner (otherwise the crime is physical injuries); and

ARTICLE 237. PROLONGING PERFORMANCE OF DUTIES AND POWERS.

ELEMENTS: 1. That the offender is holding a public office;

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. That the period provided by law, regulations or special provisions for holding such office has already expired; and 3. That he continues to exercise the duties and powers of such office. The article contemplates officers who have been suspended, separated, declared over-aged or dismissed

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