Criminal Law Book 2(1).pdf
January 22, 2017 | Author: KrisLarr | Category: N/A
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TITLE ONE: CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Section One: Treason and Espionage ARTICLE 114 TREASON Treason – a breach of allegiance to a government, committed by a person who owes allegiance to it. Allegiance – the obligation of fidelity and obedience which the individual owes to the government under which he lives or to his sovereign, in return for the protection he receives. Hence an alien residing in the Philippines may be prosecuted for acts of treason due to the temporary allegiance he owes to the Philippine government. Elements of treason: 1. That the offender owes allegiance to the Government of the Philippines; (a Filipino citizen or an alien residing in the Philippines.) Place of commission: Filipino Citizen: anywhere (Art.2, RPC) Alien: only in the Philippines (EO 44) except in case of conspiracy An alien owes permanent allegiance to his own country, at the same time, a temporary allegiance to the country where he resides. 2. That there is a war in which the Philippines is involved; Treason is a war crime. It remains dormant until the emergency arises. But as soon as war starts, it is put into effect (Laurel vs. Misa, 77 Phil 865 [1946]) 3. That the offender either (modes of committing): a. Levies war against the government; or
b. Adheres to the enemies, giving them aid or comfort. Ways of being committed: 1. Levying war It means that (a) there is an actual assembling of men (b) for the purpose of executing a treasonable design by force. It is not necessary that there be a formal declaration of the existence of a state of war. Actual hostilities may determine the date of the commencement of war (U.S. vs Lagnason, 3 Phil 495) The levying of war must be with intent to overthrow the government not merely to resist a particular statute or to repel a particular officer. It is not necessary that those attempting to overthrow the government by force of arms should have the apparent power to succeed in their design, in whole or in part. Treason by Levying War
Rebellion
The purpose of levying Such purpose is not necessary. (e.g. civil war is to help the enemy. uprising)
Treason
Sedition
Philippines must be at war with another country
Internal conflict
Violation of allegiance
oath
of Causing disturbances in one’s country
Adherence to the enemies, giving them aid and comfort Requires BOTH 1. adherence to the enemies, and 2. giving of aid or comfort to them Note: Mere adherence without its physical manifestation through the giving of aid or
EXECUTIVE COMMITTEE: EZEKIEL JOSHUA VILLENA overall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA chairperson for hotel operations, MARIE MICAELA STA. ANA vice-chairperson for operations, MIKHAIL MAVERICK TUMACDER vice-chairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vicechairperson for edp, JASSEN RALPH LEE vice-chairperson for logistics SUBJECT COMMITTEE: JO ANN MARIE O. CASIO subject chair, VENICE BUAGÑIN assistant subject chair, STEVEN MICHAEL D. GALA edp, MARIONNE ROSABELL LACUNA book one, MARIS DONNA KWOK book two, MA. KATRINA RIVERA special penal laws MEMBERS: Karell Marie G. Lascano, Katrina Jorelle P. Villena, Clare Marie F. Ortega, Hera Aiza Marie A. Barona, Nicole Alora G. Julian , Rozzalle Gonzales, Sheena Antlan, Diana Jean De Castro, Beatrice Valerie S. Guillermo, Raynan Larosa, Kamille Deanne Lagasca, Jose Angelo David
CRIMINAL LAW BOOK TWO comfort is not sufficient to constitute treason. Both adherence and the giving of aid or comfort to the enemy must concur.
The term “enemy” applies only to the subjects of a foreign power in a state of hostility with the traitor’s country. It does not embrace rebels in insurrection against their own country, for in that case the crime would be rebellion. The act committed need not actually strengthen the enemy or be successful. However, the act must be such that it directly and materially tends to improve the conduct of war of the enemy.
act. It is not necessary that there be corroboration between them. 2. Confession of guilt by the accused in open court.
“Adherence to enemy” It means that there is an intent to betray. The accused intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest. “Rendering aid or comfort” It means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country or any act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy.
Extent of aid or comfort - it must be a deed or physical activity and not merely a mental operation Giving information to (People vs. Paar, 86 Phil. 864), or commandeering foodstuffs (People vs. Mangahas, 93 Phil 113) for the enemy is evidence of both adherence and aid or comfort. Being a Makapili constitutes an overt act of psychological comfort. It was no different from that of enlisting in the invader's army (People vs. Adriano, 78 Phil 563
Adherence may be proved: 1. By one witness; 2. From the nature of the act itself; or 3. From the circumstances surrounding the act. Ways of proving Treason (overt act): 1. Testimony of two witnesses, at least, to the same overt act (two-witness rule); or The testimonies must refer to the same act, place and moment of time. If the overt act is separable, two witnesses must also testify to each part of the overt act. It is sufficient that the witnesses are uniform in their testimony on the overt
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Treason absorbs crimes committed in furtherance thereof. Treason cannot be complexed with other crimes. Treason is a CONTINUOUS OFFENSE. All overt acts of treason that the accused has committed constitute a single offense. Defenses: Allowed: Duress and fear of immediate death; Obedience to a de facto government (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 policydetermining, the acceptance of public office and the discharge of official duties constitute treason.) NOT allowed: Suspended allegiance (since sovereignty is not suspended in times of war, only the exercise thereof); Change in sovereignty; Loss of citizenship. There is no treason thru negligence. The overt act of giving aid or comfort to the enemy must be intentional. Circumstances inherent in treason: treachery, abuse of superior strength and evident premeditation Circumstances aggravating in treason: ignominy, cruelty, amount or degree of aid, gravity of separate distinct acts of treason ARTICLE 115 CONSPIRACY & PROPOSAL TO COMMIT TREASON
Conspiracy to commit treason – committed when in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it (Arts. 8 and 114) Proposal to commit treason – committed when in time of war a person has decided to levy war against the Government or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person or persons (Arts. 8 and 114)
As a general rule, conspiracy and proposal to commit a felony is not punishable (Article 8), Art 115 is an exception as it
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specifically penalizes conspiracy and proposal to commit treason. The two-witness rule does NOT apply because this is a separate and distinct offense. These felonies are absorbed if treason is actually committed. ARTICLE 116 MISPRISION OF TREASON
Elements: 1. That the offender is a citizen of the Philippines; 2. That he has knowledge of any conspiracy against the Government; 3. That the conspiracy is one to commit treason; 4. That he conceals or does not disclose and make known the same as soon as possible to the proper authority.
Art. 116 does NOT apply when treason is already committed and the accused does not report its commission. Art 116 is an EXCEPTION to the rule that mere silence does not make a person criminally liable. The phrase “shall be punished as an accessory to the crime of treason,” mentioned in the provision, does not mean that the offender is, legally speaking, an accessory to the crime of treason because he is already a principal in the crime of misprision of treason. It simply means that the penalty imposed is that of an accessory to the crime of treason. ARTICLE 117 ESPIONAGE
Espionage – the offense of gathering, transmitting, or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Republic of the Philippines or to the advantage of a foreign nation. Two ways of committing: 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 Elements: a. That the offender enters any of the places mentioned therein; b. That he has no authority therefor; c. That his purpose is to obtain information, plans, photographs or
other data of a confidential nature relative to the defense of the Philippines.
Offender must have the intention to obtain information relative to the defense of the Philippines. However, it is not necessary that the information is actually obtained.
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: a. That the offender is a public officer; b. That he has in his possession the articles, data or information referred to in par. 1 of Art. 117, by reason of the public office he holds; c. That he discloses their contents to a representative of a foreign nation. COMMONWEALTH ACT NO. 616 An Act to Punish Espionage and Other Offenses Against National Security Acts Penalized 1. Unlawfully obtaining or permitting to be obtained information affecting national defense Ways of Violating Sec. 1: a. By going upon, entering, flying over or otherwise obtaining information concerning any vessel, aircraft, work of defense or other place connected with the national defense or any other place where any vessels, aircrafts, arms, munitions or other materials for use in time of war are being made, or stored, for the purpose of obtaining information respecting national defense, with intent to use it to the injury of the Philippines or to the advantage of any foreign nation. b. By copying, taking, making or patenting or inducing or aiding another to copy, take, make or obtain any sketch, photograph, photographic negative, blueprint, plan, map instrument, appliance, document, writing or note of anything connected with the national defense, for the same purpose and with like intent as in par. A. c. By receiving or obtaining or agreeing or attempting or inducing or aiding
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CRIMINAL LAW BOOK TWO another to receive or obtain from any sources any of those data mentioned in par. B, code book or signal book, knowing that it will be obtained or disposed by any person contrary to the provisions of this act. d. By communicating or transmitting, or attempting to communicate or transmit to any person not entitled to receive it, by willfully retaining and failing to deliver it on demand to any officer or employee entitled to receive it, the offender being in possession of, having access to, control over, or being entrusted with any of the data mentioned in par. B, or code book or signal book. e. By permitting, through gross negligence, to be removed from its proper place or custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted or destroyed any of the data mentioned in par B, code book or signal book, the offender being entrusted with or having lawful possession or control of the same. 2. Unlawfully disclosing information affecting national defense Ways of violating Sec. 2: a. By communicating, delivering or transmitting or attempting or aiding or inducing another to do it, to any foreign government or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the Philippines, or to any representative, officer, employee, subject or citizen thereof, any of the data mentioned in par. B of Sec. 1 hereof, code book or signal book. b. In time of war, by collecting, recording, publishing or communicating or attempting to elicit any information with respect to the movement, number, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the Philippines, or with respect to the plans or conduct of any military, naval or air operations or with respect to any works or measures undertaken for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy. 3. Disloyal acts or words in time of peace Ways of violating Sec. 3: a. By advising, counseling, urging or in any other manner by causing
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insubordination, disloyalty, mutiny or refusal of duty of any member of the military, naval or air forces of the Philippines. b. By distributing any written or printed matter which advises, counsels, or urges such insubordination, disloyalty, mutiny, or refusal of duty. 4. Disloyal acts or words in time of war Ways of violating Sec. 4: a. By willfully making or conveying false reports or false statements with intent to interfere with the operations or success of the Armed Forces of the Philippines. b. To promote the success of its enemies, by willfully causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the Armed Forces of the Philippines. c. By willfully obstructing the recruiting or enlistment service. 5. Conspiracy to commit the preceding acts Requisites: a. Two or more persons conspire to violate the provisions of Sec. 1, 2, 3 or 4 of this Act; b. One or more of such persons do any act to effect the object of the conspiracy. 6. Harboring or concealing violators of the Act Requisites: a. The offender knows that a person has committed or is about to commit an offense under this Act; b. The offender harbors or conceals such person. 7.
Making any photograph, sketch, picture, drawing, map or graphical representation of vital military, naval and air installations or equipment as defined by the Philippine President as requiring protection against the general dissemination of information relative thereto UNLESS he obtains the permission of the commanding officer (or higher authority).of post, camp or station concerned and promptly submits the product obtained to the same commanding officer (or higher authority).
8.
Using or permitting or procuring the use of an aircraft for the same purpose of violating #7. Reproducing, publishing, selling, or giving
9.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS away of uncensored copies of those mentioned under #7 without the permission of the commanding officer (or higher authority. 10. Destroying or injuring or attempting to injure or destroy war material (when the country is at war) or national defense material, premises or utilities (even if the country is not at war). 11. Making or causing to be made in a defective manner, or attempting to make or cause to be made in a defective manner, war material (when the country is at war) or national defense material (even if the country is not at war). Espionage
Treason
Both are crimes not conditioned by the citizenship of the offender. May be committed both Is committed only in time in time of peace and in of war. time of war. May be committed in Is limited to two ways of many ways. committing the crime: levying war, and adhering to the enemy giving them aid or comfort
SECTION TWO: PROVOKING WAR AND DISLOYALTY IN CASE OF WAR ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: 1. That the offender performs unlawful or unauthorized acts; 2. That such acts provoke or give occasion for a. A war involving or liable to involve the Philippines or b. Expose Filipino citizens to reprisals on their persons and property. Intention of the accused is immaterial. This is committed in time of peace. Penalty is higher when the offender is a public officer or employee. Reprisal- is an act of self-help on the part of the injured state, responding after an unsatisfied demand to an act contrary to international law on the part of the offending state (Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928)
ARTICLE 119 VIOLATION OF NEUTRALITY Elements: 1. That there is a war in which the Philippines is not involved; 2. That there is a regulation issued by a competent authority for the purpose of enforcing neutrality; 3. That the offender violates such regulation. Neutrality – the condition of a nation that in time of war takes no part in the dispute but continues peaceful dealings with the belligerents There must be a regulation issued by competent authority (President or the Chief of Staff of the AFP) for the enforcement of neutrality. ARTICLE 120 CORRESPONDENCE WITH HOSTILE COUNTRY Elements: 1. That it is made in time of war in which the Philippines is involved; 2. That the offender makes correspondence with the: a. Enemy country or b. Territory occupied by the enemy troops; 3. That the correspondence is either: a. Prohibited by the Government; or b. Carried on in ciphers or conventional signs; or c. If notice or information be given thereby which might be useful to the enemy. Correspondence – communication by means of letters; or it may refer to the letters which pass between those who have friendly or business relations. Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the government, it is punishable because of the possibility that some information useful to the enemy might be revealed unwittingly. Prohibition by the Government is NOT essential when the correspondence is carried on in ciphers or useful to the enemy. Circumstances qualifying the offense The following must concur: 1. That the notice or information might be useful to the enemy;
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CRIMINAL LAW BOOK TWO 2. That the offender intended to aid the enemy. ARTICLE 121 FLIGHT TO ENEMY’S COUNTRY Elements: 1. That there is a war in which the Philippines is involved; 2. That the offender owes allegiance to the Government; 3. That the offender attempts to flee or go to the enemy country; 4. That going to the enemy country is prohibited by the competent authority.
An alien resident may be guilty of flight to enemy country, because an alien owes allegiance to the Philippine government albeit temporary. Mere attempt to flee or go to enemy country consummates the crime.
SECTION THREE: PIRACY AND MUTINY ON THE HIGH SEAS ARTICLE 122 PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS 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. Two ways or modes of committing piracy: 1. By attacking or seizing a vessel on the high seas or in Philippine waters; 2. By seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers. Elements of piracy: 1. That a vessel is on the high seas or on Philippine waters; 2. That the offenders are NOT members of its complement or passengers of the vessel; 3. That the offenders: a. Attack or seize the vessel; or b. Seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers. High seas – waters which are beyond 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
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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 – shall refer to all bodies of water, such as but not limited to seas, gulfs, bays, around, between and connecting each of the islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty and jurisdiction (Sec. 2, P.D. 532).
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.
Mutiny – the unlawful resistance to a superior, or the raising of commotions and disturbances on board a ship against the authority of its commander. Piracy under RPC
Mutiny
Place of commission: Either in Philippine waters or on the high seas The persons who attack Mutiny is committed by a vessel or seize its members of the crew or cargo are strangers to passengers. the vessels. Intent to essential.
gain
is The offenders may only intend to ignore the ship’s officers or they may be prompted by a desire to commit plunder.
PRESIDENTIAL DECREE NO. 532 Anti-Piracy and Anti-Highway Robbery Law of 1974 Vessel – any vessel or watercraft used for (a) transport of passengers and cargo or (b) for fishing. Piracy under RPC
Piracy under PD 532
Punishes piracy Punishes piracy committed either in committed in Philippine Philippine waters or on waters only. the high seas.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Piracy under RPC
Piracy under PD 532
Offenders: Non- Offenders: any person passengers or non- (may be a passenger, members of the crew, in crew or a stranger). short, strangers to the vessel.
Aiding or Abetting of Piracy Any person who shall knowingly aid or abet piracy will be considered as an accomplice in the commission of piracy and punished according to the rules under the RPC. Requisites: 1. Knowingly aids or protects pirates; 2. Acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; 3. Directly or indirectly abets the commission of piracy. ARTICLE 123 QUALIFIED PIRACY
Acts Punished 1. Usurping or seizing control of an aircraft of Philippine registry while it is in flight; or compelling the pilots thereof to change its course or destination; Note: When the aircraft is not in flight, the usurpation or seizure of the aircraft may amount to coercion or threat. When death results, the crime is homicide or murder, as the case may be. 2. Usurping or seizing control of an aircraft of foreign registry, while within Philippine territory, or compelling the pilots thereof to land in any part of Philippine territory; Aggravating circumstances to acts punished under 1 and 2: a. When the offender has fired upon the pilot, member of the crew, or passenger of the aircraft; b. When the offender has exploded or attempted to explode any bomb or explosive to destroy the aircraft; c. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape. (Thus, such common crimes are considered aggravating circumstances only; they are not separated from or complexed with the crime of hijacking)
Qualifying Circumstances: 1. Whenever the offenders have seized the vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; 3. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. The “crimes” mentioned in the article which are qualified are piracy and mutiny on the high seas. Qualified piracy is a SPECIAL COMPLEX CRIME punishable by reclusión perpetua to death, regardless of the number of victims. Offenders are not liable for the separate crimes of murder, homicide, physical injuries, or rape.
3. Carrying or loading on board operating as a public utility aircraft in the Philippines corrosive, explosive or substances;
Qualified Mutiny: When the second or the third circumstance accompanies the crime of mutiny mentioned under Art. 122, mutiny is then qualified. First circumstance may not qualify the crime of mutiny.
Note: There is no attempted hijacking since it is punishable under a special law and attempted stage is not punishable under the said law.
REPUBLIC ACT NO. 6235 ANTI-HIJACKING LAW
TITLE TWO: CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE
Meaning of “aircraft is in flight” - from the moment all exterior doors are closed following embarkation until the same doors are again opened for disembarkation.
an aircraft passenger flammable, poisonous
4. Loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, flammable, corrosive, or poisonous substance if not done in accordance with the rules and regulations of the Air Transportation Office.
All offenses in this Title are required to be committed by public officers except offending the religious feelings.
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CRIMINAL LAW BOOK TWO CHAPTER ONE: ARBITRARY DETENTION OR EXPULSION, VIOLATION OF DWELLING, PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETING AND CRIMES AGAINST RELIGIOUS WORSHIP (ARTS. 124-133) SECTION ONE: ARBITRARY DETENTION AND EXPULSION ARTICLE 124 ARBITRARY DETENTION Elements: 1. That the offender is a public officer or employee; 2. That he detains a person; 3. That the detention is without legal ground. Detention – a person is detained when he is placed in confinement or there is restraint on his person. Detention need not involve any physical restraint. Psychological restraint is sufficient. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will (Astorga vs. People, G. R. No. 154130 Oct. 1, 2003). Legal grounds for the detention of persons: 1. The commission of a crime 2. Violent insanity or other ailment requiring compulsory confinement of the patient in a hospital Note: This is list is not exclusive so long as the ground is considered legal (e.g. in contempt of court, under quarantine, or a foreigner to be deported).
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The public officer liable for arbitrary detention must be vested with authority to detain or order the detention of persons accused of a crime, but when they detain a person they have no legal grounds therefor. If the detention is perpetrated by other public officers NOT vested with authority or any private individual, the crime committed is illegal detention (Art. 267 or 268). The penalty for Arbitrary Detention
depends upon the period of detention involved. A greater penalty is imposed if the period is longer. Arrest without a warrant is the usual cause of arbitrary detention. The crime of unlawful arrest is, however, absorbed in the crime of arbitrary detention.
Arrest without warrant – when LAWFUL: 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; “In his presence” – when the officer sees the offense being committed, although at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof, or when the offense is continuing or has not been consummated at the time the arrest is made, the offense is said to be committed in his presence. (U.S. vs. Samonte, 16 Phil 516 [1910]) 2. When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; 3. When the person to be arrested is a prisoner, has escaped from a penal establishment, or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Sec. 5, Rule 113, Revised Rules of Criminal Procedure) It may be committed through imprudence. ARTICLE 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 (Sec. 5, Rule 113, Rules of Court); 3. That he fails to deliver such person to the proper judicial authorities within: a. 12 hrs. for offenses punishable by light penalties or their equivalent. b. 18 hrs. for offenses punishable by correctional penalties or their equivalent. c. 36 hrs. for offenses punishable by afflictive penalties or their equivalent.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Circumstances considered in determining liability of officer detaining a person beyond legal period: 1. The means of communication; 2. The hour of arrest; and 3. Other circumstances such as the time of surrender and the material possibility of the fiscal to make the investigation and file in time the necessary information. Meaning of “proper judicial authorities” It refers to the courts of justice or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense. Reason for Article 125 It is intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail. A private individual who makes a lawful arrest must also comply with requirements under Art. 125. If he fails to comply, he is liable for the crime of ILLEGAL DETENTION under Art. 267 or 268. The illegality of the detention is not cured by the filing of information in court. Art. 125 applies only when the arrest is made without a warrant of arrest but lawful. It does NOT apply when the arrest is by virtue of a warrant of arrest, in which case he can be detained indefinitely. He must, however, be delivered without unnecessary delay to the nearest police station or jail. Person arrested may request for a preliminary investigation but must sign a waiver of Art. 125. “Delivery to proper authorities” It means filing of an information against the person arrested with the corresponding court or judge. It does not mean “physical delivery”. Art. 124
Art. 125
The detention is illegal The detention is legal in from the beginning. the beginning but the illegality of the detention starts from the expiration of any of the periods of time specified in Art. 125, without the person detained having been delivered to the proper judicial authority
ARTICLE 126 DELAYING RELEASE Three acts punished: 1. By delaying the performance of a judicial or executive order for the release of a prisoner; 2. By unduly delaying the service of the notice of such order to said prisoner; 3. By unduly delaying the proceedings upon any petition for the liberation of such person. 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; 3. That the offender without good reason delays either: a. The service of the notice of such order to the prisoner; b. The performance of such judicial or executive order for the release of the prisoner; or c. The proceedings upon a petition for the release of such person. Note: Most likely to be violated by wardens or jailers. ARTICLE 127 EXPULSION Two acts punished: 1. By expelling a person from the Philippines; 2. By compelling a person to change his residence. 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; 3. That the offender is not authorized to do so by law. Exception: (no expulsion) in cases of ejectment, expropriation or when the penalty of destierro is imposed.
Only the President of the Philippines is authorized to deport aliens under the Revised Administrative Code. Only the court by a final judgment can order a person to change residence
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CRIMINAL LAW BOOK TWO SECTION TWO: VIOLATION OF DOMICILE ARTICLE 128 VIOLATION OF DOMICILE Acts Punished 1. By entering any dwelling against the will of the owner thereof; 2. By searching papers or other effects found therein without the previous consent of such owner; 3. By refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same. Common elements: 1. That the offender is public officer or employee; 2. That he is not authorized by judicial order to enter the dwelling and/ or to make a search for papers and for other effects. Qualifying circumstances: 1. If committed at nighttime; 2. If any papers or effects, not constituting evidence of a crime are not returned immediately after a search is made by the offender.
The offender must be a public officer or employee. If he is a private individual, the crime committed is TRESPASS TO DWELLING.
In the first mode, lack of consent would not suffice as the law requires that the offender’s entry must be over the owner’s objection. In the second mode, mere lack of consent is sufficient. In the third mode, what is punished is the refusal to leave, the entry having been made surreptitiously.
It is believed, however, that if the surreptitious entry had been made through an opening not intended for that purpose, the offender would be liable under the first mode since it is entry over the implied objection of the inhabitant.
Although the Code speaks of the owner of the premises, it would be sufficient if the inhabitant is the lawful occupant using the premises as his dwelling, although he is not the owner thereof.
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“Against the will of owner” It presupposes opposition or prohibition by the owner, WHETHER EXPRESS OR IMPLIED, and not merely the absence of consent. ARTICLE 129 SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Acts Punished: 1. Procuring a search warrant without just cause Elements: a. That the offender is a public officer or employee; b. That he procures a search warrant; c. That there is no just cause. 2. Exceeding his authority or by using unnecessary severity in executing a search warrant legally procured Elements: a. That the offender is a public officer or employee; b. That he has legally procured a search warrant; c. That he exceeds his authority or uses unnecessary severity in executing the same. Search warrant – is an order in writing issued in the name of the People of the Philippines, signed by the judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Requisite for the issuance of search warrant A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Sec. 4, Rule 126, Revised Rules of Criminal Procedure) Test of lack of just cause Whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury could be charged thereon and affiant can be held liable for damages caused. If the search warrant is secured through a
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SECTION THREE: PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS
false affidavit, the crime punished by this article CANNOT be complexed but will be a separate crime from perjury since the penalty herein provided shall be IN ADDITION TO the penalty of perjury. A search warrant shall be valid for ten (10) days from its date.
Instances when a warrantless search and seizure is valid 1. Consented searches; 2. As an incident to a lawful arrest; 3. Searches of vessels and aircraft for violation of immigration, customs, and drug laws; 4. Searches of moving vehicles; 5. Searches of automobiles at borders or constructive borders; 6. Where the prohibited articles are in "plain view"; 7. Searches of buildings and premises to enforce fire, sanitary, and building regulations; and 8. "stop and frisk" operations. (People v. Lopez GR No. 181747 September 29, 2008) Note: The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (Sec. 7, Rule 126, Rules of Court)
ARTICLE 131 PROHIBITION, INTERRUPTION, & DISSOLUTION OF PEACEFUL MEETINGS Acts Punished: 1. Prohibiting, interrupting or dissolving without legal ground the holding of a peaceful meeting; 2. Hindering any person from joining any lawful association or from attending any of its meetings; 3. Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances. Common elements: 1. That the offender is a public officer; 2. That he performs any of the mentioned above
ARTICLE 130 SEARCHING DOMICILE WITHOUT WITNESSES
acts
Right to conduct peaceful meeting is not absolute. It may be regulated by the police power of the state. However, there is a legal ground to prohibit when the danger is imminent and the evil to be prevented is a serious one. The offender must be a stranger, and not a participant. If the offender is a participant, the crime committed is unjust vexation. Interrupting and dissolving the meeting of municipal council by a public officer is a crime against a legislative body, not punished under Art. 131 but under. Art. 143 and 144. If the offender is a private individual, the crime is disturbance of public order under Art. 153.
Elements: 1. That the offender is a public officer or employee; 2. That he searches the domicile, papers or other belongings of any person; 3. That he is armed with a warrant; 4. That the owner or any member of his family or two witnesses residing in the same locality are not present.
Elements: 1. That the offender is a public officer or employee; 2. That religious ceremonies or manifestations of any religion are about to take place or are going on; 3. That the offender prevents or disturbs the same.
The papers or other belongings must be in the dwelling of their owner at the time the search is made. Art. 130 does NOT apply to searches of vehicles or other means of transportation. Search without warrant under the Tariff and Customs Code does not include a dwelling house.
SECTION FOUR: CRIMES AGAINST RELIGIOUS WORSHIP ARTICLE 132 INTERRUPTION OF RELIGIOUS WORSHIP
Qualified by violence or threats
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CRIMINAL LAW BOOK TWO
If the prohibition or disturbance is committed only in a meeting or rally of a sect, it would be punishable under Art.131.
ARTICLE 133 OFFENDING RELIGIOUS FEELINGS
Rebellion - more frequently used where the object of the movement is to completely overthrow and supersede the existing government. It is a crime of the masses, of the multitude. It is a vast movement of men and a complex network of intrigues and plots. Purpose of the uprising must be shown, without evidence to indicate the motive or purpose of the accused does not constitute rebellion. It may constitute other crimes like sedition or kidnapping.
Elements: 1. That the acts complained of were performed: a. In a place devoted to religious worship (not necessary that there is a religious worship); or b. During the celebration of any religious ceremony; 2. That the acts must be notoriously offensive to the feelings of the faithful. Religious ceremonies – are those religious acts performed outside of a church, such as procession and special prayers for burying dead person “Acts notoriously offensive to the feelings of the faithful” The acts must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing at or attempting to damage an object of religious veneration. May be committed by a public officer or a private individual Offense of feeling is judged from complainant’s point of view. There must be deliberate intent to hurt the feelings of the faithful TITLE THREE: CRIMES AGAINST PUBLIC ORDER ARTICLE 134 REBELLION/ INSURRECTION Elements: 1. That there be: a. Public uprising; and b. Taking up of arms against the government. 2. For the purpose of: a. Removing from the allegiance to said Government or its laws: i. The territory of the Philippines, or any part thereof; or ii. Any body of land, naval or other armed forces; or b. Depriving the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.
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If the act is to deprive the Judiciary of its powers or prerogatives, the crime committed is sedition.
Insurrection – more commonly employed in reference to a movement which seeks merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects. Note: ACTUAL CLASH with the armed forces of the Government is NOT necessary to convict the accused who is in conspiracy with others actually taking arms against the government. Rebellion
Treason
As to purpose To remove from the Violation by a subject of allegiance to said his allegiance to his gov't or the laws the sovereign or to the territory of the Phils. supreme authority of the Or any body of State. land, naval or other armed forces; 2. To deprive the Chief Executive or Congress of any of their powers. Manner of commission 1. Public uprising, and 1. By levying war 2. By taking arms against the gov't; against the Gov't. 2. By adhering to the enemies of the Phils., giving them aid or comfort Time of commission May be committed both Committed during a time during times of peace of war. and war 1.
Proof needed for conviction Proved by showing the 1. Testimony of 2 purpose of the uprising; witnesses, at least there must be proof to the same overt beyond reasonable act; or doubt 2. Confession of accused in open court
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
Giving aid and comfort is not criminal in rebellion. Persons acting as couriers or spies for rebels are guilty of rebellion. Mere silence regarding the presence of rebels despite knowledge of a rebellion is not punishable. Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellious movement. There is no complex crime of rebellion with murder and other common crimes, whether such crimes are punishable under a special law or general law (RPC) provided that such crimes are committed in furtherance or in pursuance of the movement to overthrow the government. (Ponce Enrile v. Amin, G. R. No. 93335, September 13, 1990).
Offenders: No qualifications.
Purpose: To overthrow the government. Essence: Public uprising and taking up of arms against the government.
ARTICLE 134-A COUP D’ETAT
Principal offender/s must belong to the military or police, or hold any public office or employment, with or without civilian support. Purpose: To destabilize the government or diminish state power. Essence: Swift attack accompanied by violence, intimidation, threat, strategy or stealth directed against the government or any military camp or installation or communication networks, public utilities or other facilities needed for the exercise and continued possession of power.
ARTICLE 135 PENALTY FOR REBELLION OR INSURRECTION OR COUP D’ETAT
Elements of coup d’etat: 1. That the offender is a person or persons belonging to military or police or holding any public office or employment; 2. That it is committed by means of a swift attack, accompanied by violence, intimidation, threat, strategy, or stealth; 3. That the attack is directed against duly constituted authorities of the Republic of the Philippines or any military camp, or installation, or communication networks, public utilities or other facilities needed for the exercise and continued possession of power; 4. That the purpose of the attack is to seize or diminish state power.
Persons liable for rebellion, insurrection and/or coup d’etat: The leaders – Any person who a. Promotes; b. Maintains; or c. Heads a rebellion or insurrection; or Any person who – a. Leads; b. Directs; or c. Commands others to undertake a coup d’etat;
The crime of coup d’etat may be committed with or without civilian participation. State Power includes power of the President, Legislative and Judicial Power, including police power. Under Section 3 of the Human Security Act of 2007 a person who commits an act punishable as coup d’ etat including acts committed by private persons, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of terrorism.
Rebellion There must be a public uprising, more than one person is involved.
Coup d‘etat May be committed by one person or a multitude.
The participants – Any person who 1. Participates; or 2. Executes the commands of others in rebellion, or insurrection;
Any person in the government service who 1. Participates; or 2. Executes directions or commands of others in undertaking a coup d’etat;
Any person not in the government service who 1. Participates; 2. Supports; 3. Finances; 4. Abets; or 5. Aids in undertaking a coup d’etat.
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CRIMINAL LAW BOOK TWO Who shall be deemed the leader of the rebellion, insurrection or coup d’etat in case he is unknown? Any person who in fact: 1. Directed the others, 2. Spoke for them, 3. Signed receipts and other documents issued in their name, or 4. Performed similar acts, on behalf of the rebels.
Being a mere assistant to a principal, guilty of rebellion and punishable under the second paragraph of Art. 135 is a participant in the commission of Rebellion. (People v. Lava, 28 SCRA 72 [1969])
Political Crimes – in contrast to common 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.
Killing, robbing, etc., for private purposes or profit, without any political motivation, would be separately punished and would not be absorbed in the rebellion. (People vs. Geronimo, et al., 100 Phil 90 [1956]) ARTICLE 136 CONSPIRACY & PROPOSAL TO COMMIT REBELLION, INSURRECTION OR COUP D’ ETAT
Two Crimes penalized under this article: 1. Conspiracy to commit rebellion, and 2. Proposal to commit rebellion. Conspiracy to commit rebellion – when two or more persons come to an agreement to rise publicly and take arms against the Government for any of the purposes of rebellion and decide to commit it Proposal to commit rebellion – when the person who has decided to rise publicly and take arms against the Government for any of the purposes of rebellion proposes its execution to some other person or persons
This is an instance where the law punishes preparatory acts. ARTICLE 137 DISLOYALTY OF PUBLIC OFFICERS/EMPLOYEES
Acts Punished 1. Failing to resist a rebellion by all means in their power;
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2. Continuing to discharge the duties of their office under the control of the rebels; 3. Accepting appointment to office under the rebels.
The offender must be a public officer or employee. The crime presupposes the existence of rebellion by other persons; the offender must not be in conspiracy with the rebels; otherwise, he himself will also be guilty of rebellion. ARTICLE 138 INCITING TO REBELLION/ INSURRECTION
Elements: 1. That the offender does not take up 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; 3. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations (SPWEBO) tending to the same end. Proposal to Commit Rebellion
Inciting to Rebellion
In both crimes, the offender induces another to commit rebellion. The person who It is not required that the proposes has decided to offender has decided to commit rebellion. commit rebellion. The person who The act of inciting is proposes the execution done publicly. of the crime uses secret means. Note: In both, the crime of rebellion should not be actually committed by the persons to whom it is proposed or who are incited. If they commit rebellion because of the proposal or inciting, the proponent or the one inciting may become a principal by inducement in the crime of rebellion.
ARTICLE 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; 3. That the offenders employ any of those means to attain any of the following objects:
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS a.
b.
c.
d.
e.
To prevent the promulgation or execution of any law or the holding of any popular election; To prevent the government or any public officer from freely exercising its or his functions, or prevent the execution of any Administrative Order; To inflict any act of hate or revenge upon the person or property of any public officer or employee; To commit, for any political or social end, any act of hate or revenge against private persons or any social class; To despoil, for any political or social end, any person or the government of all its property or any part thereof.
Tumultuous – if caused by more than three persons who are armed or provided with the means of violence Sedition
Rebellion
In both, there must be public uprising. It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. Government. The purpose of offenders may political or social.
the The purpose is always be political.
Not necessarily against Always against the government government
Sedition
Persons liable: 1. The leader of the sedition; 2. Other persons participating in the sedition. ARTICLE 141 CONSPIRACY TO COMMIT SEDITION
Only Conspiracy to commit sedition is punishable and not proposal to commit sedition. There must be an agreement both to attain an object of sedition and to rise publicly and tumultuously. ARTICLE 142 INCITING TO SEDITION
Acts Punished: 1. Inciting others to commit sedition by means of speeches, proclamations, writings, emblems cartoons, banners, or other representations tending to the same end; 2. Uttering seditious words or speeches which tend to disturb the public peace; 3. Writing, publishing, or circulating scurrilous libels against the Government or any of its duly constituted authorities. 4. Knowingly concealing such evil practices.
the
Treason
In its more general In its more general sense, it is the raising of sense, it is the violation commotions or by a subject of his disturbances in the allegiance to his State. sovereign.
ARTICLE 140 PENALTY FOR SEDITION
Public uprising and an object of sedition must concur. In sedition, it is immaterial if the objective be completely attained. Mere public uprising for any of the objective mentioned in Art. 139 is punishable.
Note: Common Crimes are NOT absorbed in the crime of sedition. General Rule: Common Crimes are NOT absorbed in sedition. Exception: However, sedition absorbs the use of unlicensed firearms as an element thereof, pursuant to RA 8294.
Scurrilous – means vulgar, mean, foul Elements of act no. 1: 1. That the offender does not take direct part in the crime of sedition; 2. That he incites others to the accomplishment of any of the acts which constitute sedition; 3. That the inciting is done by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end. Acts nos. 2 & 3 punishable when: 1. They tend to disturb or obstruct any lawful officer in executing the functions of his office; 2. They tend to instigate others to cabal and meet together for unlawful purposes; 3. They suggest or incite rebellious conspiracies or riots or 4. They lead or tend to stir up the people against the lawful authorities or disturb the peace of the community, and the safety and order of the Government.
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CRIMINAL LAW BOOK TWO Rules relative to seditious words: Clear and present danger rule It is required that there must be reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one. There must be the probability of serious injury to the State.
Dangerous tendency rule There is inciting to sedition when the words uttered or published could easily produce disaffection among the people and a state of feeling in them incompatible with a disposition to remain loyal to the Government and obedient to the laws. The dangerous tendency rule is generally adopted in the Philippines.
Reasons why seditious utterances are prohibited: If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the Government, when there would be neither prosecuting officers nor courts for the enforcement of the law.
Elements: 1. That there be a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or any provincial board or city or municipal council or board; 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.
Complaint must be filed by a member of the legislative body. Disturbance created by a participant in the meeting is not covered by Art. 144. The same act may be made the basis for contempt since it is coercive in nature while the crime under this Article is punitive. SECTION TWO: VIOLATION OF PARLIAMENTARY IMMUNITY
CHAPTER TWO: CRIMES AGAINST POPULAR REPRESENTATION (ARTS. 143-145)
ARTICLE 145 VIOLATION OF PARLIAMENTARY IMMUNITY
SECTION ONE: CRIMES AGAINST LEGISLATIVE BODIES AND SIMILAR BODIES
Acts Punished 1. Using force, intimidation, threats, or frauds to prevent any member from a. Attending the meetings of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from b. Expressing his opinions or c. Casting his vote.
ARTICLE 143 ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES Elements: 1. That there be a projected or actual meeting of the National Assembly 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; 2. That the offender, who may be any person, prevents such meeting by force or fraud. Force referred to here is one that produces an injury on the person of another, and fraud involves falsification. Thus, physical injuries and falsification will be complexed as a necessary means to commit this crime.
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ARTICLE 144 DISTURBANCE OF PROCEEDINGS
Elements: a. That the offender uses intimidation, threats or fraud;
force,
b. That the purpose of the offender is to prevent any member of Congress from— i. Attending the meetings of the Congress or any of its committees or constitutional commissions, etc.; or ii. Expressing his opinions; or iii. Casting his vote.
The offender in Par. 1 may be any person.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS 2. Arresting or searching any member while Congress is in session, except in cases where such member has committed a crime punishable under the Code by a penalty higher than prision mayor.
c.
Elements: a. That the offender is a public officer or employee; b. That he arrests or searches any member of Congress; c. That the Congress, at the time of arrest or search, is in regular or special session; d. That the member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor. Session - refers to the entire period from its initial convening until its final adjournment. Parliamentary immunity does not protect members of Congress from responsibility before the legislative body itself. The 1987 Constitution exempts member of Congress from arrest, while the Congress is in session, for all offenses punishable by a penalty less than prision mayor. It is not necessary that the member is actually prevented from exercising any of his functions. It is sufficient that Congress is in session. Note: Under Sec 11, Art VI of the 1987 Constitution “A senator or Member of the House of Representatives shall in all offenses punishable by not more than six years imprisonment, be privileged from arrest while Congress is in session.” While Art 145 of the RPC states penalty higher than prison mayor. To be consistent with the Constitution, the Constitution should prevail over Article 145, and the Constitution says “6 years”, not prision mayor. CHAPTER THREE: ILLEGAL ASSEMBLIES AND ASSOCIATIONS (ARTS. 146-147) ARTICLE 146 ILLEGAL ASSEMBLIES Forms of Illegal Assemblies: 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code Requisites: a. That there is a meeting, gathering or group of persons, whether in a fixed place or moving; b. That the meeting is attended by armed
persons; That the purpose of the meeting is to commit any of the crimes punishable under the Code. Not all the persons present at the meeting of the first form of illegal assembly must be armed. It is sufficient that at least 2 persons are armed. If none of the persons present in the meeting are armed, there is no crime of Illegal Assembly.
2. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon a person in authority Requisites: a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving; b. That the audiences, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault.
It is necessary that the audience is actually incited. If in the meeting the audience is incited to the commission of rebellion or sedition, the crimes committed are ILLEGAL ASSEMBLY as regards the organizers or leaders or persons merely present and INCITING TO REBELLION OR SEDITION insofar as the one inciting them is concerned.
Persons liable in illegal assemblies: 1. The organizers or leaders of the meeting; 2. Persons merely present at the meeting. Presumptions: If any person carries an unlicensed firearm, it is presumed that: 1. The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC, and 2. He is considered a leader or organizer of the meeting. The law does NOT distinguish whether or not the firearms are licensed or unlicensed. It only gives a presumption if the firearm used is unlicensed. A person invited to give a speech in an illegal assembly or meeting and incites the members of such assembly is guilty of inciting to sedition
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CRIMINAL LAW BOOK TWO only and assembly.
not
punishable
under
illegal
CHAPTER FOUR: ASSAULT UPON, AND RESISTANCE & DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS (ARTS. 148-152)
ARTICLE 147 ILLEGAL ASSOCIATIONS Prohibited associations: Association totally or partially organized for: 1. The purpose of committing any of the crimes punishable under the Code, or 2. Some purpose contrary to public morals. Public morals – refer to matters which affect the interest of society and public convenience and is not limited to good customs Persons liable: 1. Founders, directors, and president of the association 2. Members of the association Illegal Assembly
Public Officer (PO)
Person in Authority (PA)
Any person who takes part in the performance of public functions in the government.
Any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission.
Illegal Association
It is necessary that there It is not necessary that is an actual meeting or there is an actual assembly of armed meeting. persons for the purpose specified in Art. 146. It is the meeting and It is the act of forming or attendance at such organizing and meeting that is membership in the punished. association that is punished. The persons liable are: 1. The organizers or leaders of the meetings, and 2. The persons present at the meeting.
ARTICLE 152 PERSONS IN AUTHORITY & AGENTS OF PERSONS IN AUTHORITY
The persons liable are: 1. The founders, directors and president, and 2. The members.
Organized for temporary More or less of some purposes duration Held in connection with Even acts contrary to crimes punishable under public morals are the RPC included.
Agent of a Person in Authority (APA) 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.
Any person who comes to aid of a person in authority may be considered as an agent of a person in authority. ARTICLE 148 DIRECT ASSAULT
Two ways to commit: 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of sedition & rebellion Elements: a. That the offender employs force or intimidation; b. That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; c. That there is no public uprising.
Offended party need NOT BE a person in authority or his agent, he may be a private individual if the object is to attain an object of sedition.
2. Without public uprising, by attacking, by employing force or seriously intimidating or by seriously resisting any person in authority (PA) or any of his agents (APA), while engaged in the performance of official duties, or on the occasion of such performance
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San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Elements: a. That the offender: i. Makes an attack (equivalent to aggression), ii. Employs force (The force must be serious and must be of such a character as to show contempt for authority (Gregorio). However, it is important to determine whether the victim is a PA or APA. If the victim is a PA, the degree of force employed against him is immaterial as the mere laying of hands on him is sufficient ( U.S. vs Gumban, 39 Phil 76). If the victim is an APA, the violence, intimidation, or resistance employed by the offender must be serious ( U.S. vs Tabiana,37 Phil 515).
b. c.
d.
e.
iii. Makes a serious intimidation (unlawful coercion, duress, putting someone in fear, exertion of an influence in the mind which must be both immediate and serious), or iv. Makes a serious resistance (if not serious, crime committed may be that under Article 151 or resistance and disobedience); That the person assaulted is a person in authority or his agent; That at the time of the assault the person in authority or his agent: i. Is engaged in the actual performance of official duties, or ii. That he is assaulted by reason of the past performance of his official duties; That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties; That there is no public uprising.
Considered NOT in the actual performance of official duties: 1. When the PA or APA exceeds his powers or acts without authority; 2. Unnecessary use of force or violence; 3. Descended to matters which are private in nature. Two kinds of direct assault of the second form: 1. Simple assault 2. Qualified assault
Direct assault is qualified when: 1. Committed with a weapon; 2. Offender is a public officer or employee; 3. Offender lays hands upon a person in authority.
Knowledge of the accused that the victim is a PA or APA is essential. An “attack” is any offensive or antagonistic movement or action of any kind. Teachers, professors, and persons in charge with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority, in applying Arts. 148 and 151. Evidence of motive of the offender is important when the person in authority or his agent who is attacked or seriously intimidated is not in the actual performance of his official duty. Even when PA or APA agrees to fight, an attack made by accused constitutes Direct Assault, except when the attack is made in lawful defense; the character of a person in authority or agent is not laid off at will but attaches to him until he ceases to be in office. If Direct Assault is committed and as a result the PA or APA is killed, the crime shall be the complex crime of Direct Assault with Homicide or Murder as the case may be. If Direct Assault is committed and the PA or APA suffers Serious or Less Serious Physical Injuries, the crime shall be a complex crime or Direct Assault with Serious or Less Serious Physical Injuries. The crime of slight physical injuries is absorbed in direct assault if committed against an APA. If committed against a PA, it will be considered as a separate offense. The crime of direct assault is not committed when the PA or APA is suspended or under suspension when he is attacked. If the accused was also acting in the performance of his official duties, crime committed may be coercion or physical injuries. ARTICLE 149 INDIRECT ASSAULT
Elements: 1. That a PA or an APA is the victim of any of the forms of direct assault defined in Art. 148; 2. That a person comes to the aid of the APA;
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CRIMINAL LAW BOOK TWO 3. That the offender makes use of force or intimidation upon such person coming to the aid of the APA.
Indirect assault can be committed only when a direct assault is also committed. The offended party in indirect assault may be a private person.
ARTICLE 150 DISOBEDIENCE TO SUMMONS ISSUED BY THE NAT’L ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSION, ITS COMMITTEES, SUBCOMMITTEE OR DIVISIONS Acts punished: 1. Refusing, without legal excuse, to obey summons of Congress, or any commission or committee chairman or member authorized to summon witnesses; 2. Refusing to be sworn or placed under affirmation while before such legislative or constitutional body or official; 3. Refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions; 4. Restraining another from attending as a witness in such legislative or constitutional body; 5. Inducing disobedience to summons or refusal to be sworn by any such body or official.
The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire. Any of the acts punished herein may also constitute contempt. ARTICLE 151 RESISTANCE & DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON
performance of official duty or gives a lawful order to the offender; 2. That the offender disobeys such APA; 3. That such disobedience is not of a serious nature.
The accused must have knowledge that the person giving the order is a peace officer.
Direct Assault Distinguished Resistance or Serious Disobedience Direct Assault
from
Resistance
The PA or APA must be Only in actual engaged in the performance of duties. performance of official duties or that he is assaulted by reason thereof. Force employed serious.
is Use of force is not so serious.
Attack or Employment of Attack or Employment of Force is deliberate Force is not deliberate. Committed in any of the following ways: 1. By attacking, 2. By employing force, 3. By seriously intimidating; 4. By seriously resisting a person in authority or his agent
Committed by resisting or seriously disobeying a person in authority or his agent
The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent. In the crime of resistance and disobedience the offender must have knowledge that the person arresting is a person in authority or an agent of a person authority. CHAPTER FIVE: PUBLIC DISORDER (ARTS. 153-156) ARTICLE 153 TUMULTS & OTHER DISTURBANCES OF PUBLIC ORDER
Elements of resistance & serious disobedience: 1. That a PA or his APA 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; 3. That the act of the offender is not included in the provisions of Arts. 148-150.
Acts punished: 1. Causing any serious disturbance in a public place, office or establishment;
Elements of simple disobedience: 1. That an APA is engaged
2. Interrupting or disturbing public performances, functions or gatherings, or
94
in
the
Note: If disturbance is not serious in nature, alarms and scandals under Article 155 is committed.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS peaceful meetings, if the act is not included in Arts. 131-132; 3. Making an outcry tending to incite rebellion or sedition in any meeting, association or public place; Note: If outcry was premeditated to incite, the crime committed is inciting to rebellion or sedition.
4. Displaying placards or emblems which provoke a disturbance of public order in such place;
ARTICLE 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES
5. Burying with pomp the body of a person who has been legally executed.
Serious disturbance must be planned or intended.
Outcry – to shout spontaneously subversive or provocative words tending to stir up the people so as to obtain by means of force or violence any of the objects of rebellion or sedition. The outcry must be spontaneous, otherwise it would be the same as inciting to rebellion or sedition. Burying with pomp the body of a person – ostentatious display of a burial Inciting to Sedition or Rebellion
Public Disorder
The outcry or displaying of emblems or placards should have been done with the idea aforethought of inducing his hearers or readers to commit the crime of rebellion or sedition.
The outcry is more or less unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition.
At the outset, the At the outset, the meeting is unlawful. meeting is lawful but becomes unlawful after the outburst described above.
The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. It is tumultuous if caused by more than three persons who are armed or provided with the means of violence. However, this is only a presumption juris tantum, hence if the disturbance is in fact tumultuous it is immaterial that there are no such armed persons. Conversely if the gathering is not
in fact tumultuous, it does not matter if there are such armed persons present on that occasion. If the person who disturbs or interrupts the meeting or religious worship is a public officer, he shall be liable under Art. 131 or 132. Tumults and other disturbances can be complexed with direct assault if the tumults and disturbances of public order are directed to a person in authority or an agent of a person in authority.
Acts punished: 1. Publishing or causing to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State; The offender must know that the news is false, to be liable. 2. Encouraging disobedience to the law or to the constituted authorities or by praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches; The act of the offender of encouraging disobedience to the law or the authorities punishable under this paragraph is different from inciting to sedition which requires that the people rise publicly. 3. Maliciously publishing or causing to be published any official resolution or document without authority, or before they have been published officially; 4. Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous.
Actual public disorder or actual damage to the credit of the state is not necessary. The mere possibility of causing such damage is sufficient.
R.A. No. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority. If the printer/owner of the printing establishment took part in the preparation and publication of the libelous writings he
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CRIMINAL LAW BOOK TWO shall be liable under Art 360.
If the publication is both obscene and anonymous, the offenses cannot be complexed as they involve different acts separately punished under this Article and Article 201 on obscene publications. ARTICLE 155 ALARMS & SCANDALS
Acts punished: 1. Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, which produces alarm or danger Note: The discharge of the firearm should not be directed at a person. Otherwise, the offense committed would be Discharge of Firearms under Article 254. It is the result, not the intent that counts. Act must produce alarm or danger as a consequence. The discharge may take place within one’s own home since the law does not distinguish as to where in town. According to Viada, the discharge of firecrackers and rockets during fiestas and festivals are not covered by the law. 2. Instigating or taking an 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 amusements 4. Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Art. 153 is not applicable
If the disturbance is of a serious nature, the case will fall under Art. 153.
Charivari – includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult. The reason for punishing instigating or taking active part in charivari and other disorderly meeting is to prevent more serious disorders.
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ARTICLE 156 DELIVERING PRISONERS FROM JAIL Elements: 1. That there is a person confined in a jail or penal establishment; 2. That the offender removes such person, or helps the escape of such person. Committed in two ways: 1. By removing a prisoner confined in jail or penal institution – to take away a person from confinement with or without the active participation of the person released 2. By helping said person to escape – furnish material means to facilitate escape The prisoner may be a detention prisoner or one sentenced by virtue of a final judgment. This article applies even if the prisoner is in the hospital or asylum when he is removed or when the offender helps his escape, because it is considered as an extension of the penal institution. If the offender is a public officer who is actually and presently in custody or charge of the prisoner, (e.g. a guard on duty) he is liable for infidelity in the custody of a prisoner. But if the crime committed by the prisoner for which he is confined or serving sentence is treason, murder, or parricide, the act of taking the place of the prisoner in prison is that of an accessory under Art. 19, par. 3. If the delivery of the prisoner was committed through bribery: a. The BRIBER commits corruption of a public officer and delivering prisoners from jail. b. The JAILER, if a public officer, commits infidelity in the custody of prisoners and bribery. c. The PRISONER commits evasion of service of sentence if he is already convicted by final judgment. Delivering Prisoners from Jail
Infidelity in the Custody of Prisoners
Offender: usually committed by an outsider. It may also apply to an employee of the penal establishment, provided he does not have custody or charge of such person.
Offender: public officer who had the prisoner in his custody or charge who was in connivance with the prisoner in the latter’s escape
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Prisoner: May be convict or a detainee
a Prisoner: May be a convict or a detainee
CHAPTER SIX: EVASION OF SERVICE OF SENTENCE (ARTS. 157-159) ARTICLE 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; 3. That he evades the service of his sentence by escaping during the term of his sentence. Circumstances qualifying the offense: 1. By means of unlawful entry (this should be “by scaling”); 2. By breaking doors, windows, gates, walls, roofs or floors; 3. By using picklocks, false keys, disguise, deceit, violence, or intimidation; 4. Through connivance with other convicts or employees of the penal institution.
The following cannot commit evasion of service of sentence: a. Accused who escapes during appeal or a detention prisoner b. Minor delinquents c. Deportees d. Persons convicted under this Article are disqualified from the benefits of the Indeterminate Sentence Law. Escape - flee from; to avoid; to get out of the way, as to flee to avoid arrest (Black’s th Law Dictionary, 4 ed., p. 640) ARTICLE 158 EVASION OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES
Elements: 1. That the offender is a convict by final judgment, and is confined in a penal institution; 2. That there is disorder, resulting from: a. Conflagration, b. Earthquake, c. Explosion, d. Similar catastrophe, e. Mutiny in which he has not participated; 3. That the offender leaves the penal
institution where he is confined, on the occasion of such disorder or during the mutiny; 4. That the offender fails to give himself up to the authorities within 48 hrs. following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity.
What is punished is not the leaving of the penal institution, but the failure of the convict to give himself up to the authorities within 48 hours after the proclamation announcing the passing away of the calamity. If the offender fails to give himself up, he shall suffer an increase of 1/5 of the time still remaining to be served under the original sentence, which shall not exceed 6 months. If the offender gives himself up, he is entitled to a deduction of 1/5 of his original sentence. “Mutiny” in this article implies an organized unlawful resistance to a superior officer; a sedition; a revolt. (People vs. Padilla, C.A., 46 O.G. 2151) If one partakes in the mutiny, he will be liable for the offenses which he committed during the mutiny whether or not he returns. ARTICLE 159 OTHER CASES OF EVASION OF SENTENCE (CONDITIONAL PARDON)
Elements: 1. That the offender was a convict; 2. That he was granted a conditional pardon by the Chief Executive; 3. That he violated any of the conditions of such pardon.
Violation of conditional pardon is a distinct crime. (This is according to Reyes); According to Regalado, however, there are actually two views. One expressed in People v. Jose which states that it is not a distinct crime, since the penalty is only the recommitment of the convict to serve the portion of the sentence remitted by the pardon, hence it is only a continuation of the original case. The other view which is the more logical one is expressed in People v. Martin which states that since the code imposes a specific penalty of prision correccional in its minimum period if the unserved portion is less than six years, it is therefore a distinct crime.
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A conditional pardon is a contract between the Chief Executive who grants the pardon and the convict who accepts it. Offender can be arrested and reincarcerated without trial – in accordance with Sec. 64(I) of the Revised Administrative Code. The condition imposed upon the prisoner that he should not commit another crime, extends to offenses punishable by special laws. Offender must be found guilty of the subsequent offense before he can be prosecuted under Art 159. The court cannot require the convict to serve the unexpired portion of the original sentence if it does not exceed six years, the remedy is left to the President who has the authority to recommit him to serve the unexpired portion of his original sentence. The period when convict was at liberty is not deducted in case he is recommitted.
Violation of Conditional Pardon
Evasion of Service of Sentence
Infringes the terms of the Defeats the purpose of contract the law. Does not affect public Disturbs public order order
CHAPTER SEVEN: COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE ARTICLE 160 COMMISSION OF ANOTHER CRIME DURING THE SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE (QUASI-RECIDIVISM) Elements of quasi-recidivism: 1. That the offender was already convicted by final judgment; 2. That he committed a new felony before beginning to serve such sentence or while serving the same. Who can be pardoned A quasi-recidivist can be pardoned: 1. At the age of 70, if he shall have already served out his original sentence (and not a habitual criminal); or 2. When he shall have completed it after reaching the said age, unless by reason of his conduct or other circumstances, he shall not be worthy of such clemency. In reiteracion, the offender against whom it
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is considered shall already have served out his sentence for the prior offenses. Quasi-recidivism is a SPECIAL AGGRAVATING CIRCUMSTANCE which cannot be offset by ordinary mitigating circumstances. First crime for which the offender is serving sentence need not be a felony; but the second crime must be a felony. Only considered as final judgment when the accused does not appeal anymore. Quasi-recidivism does not require that the offense for which the convict is serving and the new felony committed be embraced in the same title of the code. While in recidivism, both the first and the second offenses must be embraced in the same title of the code. TITLE FOUR: CRIMES AGAINST PUBLIC INTEREST CHAPTER ONE: FORGERIES SECTION 1: FORGING THE SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE. ARTICLE 161 COUNTERFEITING SEAL OF GOVERNMENT, SIGNATURE AND STAMP OF PRESIDENT Acts Punished 1. Forging the Great Seal of the Government of the Philippines; 2. Forging the signature of the President; 3. Forging the stamp of the President. If the signature of the President is forged, it is not falsification of public document, but forging the signature of the Chief Executive. ARTICLE 162 USE OF FORGED SIGNATURE, COUNTERFEIT SEAL OR STAMP Elements: 1. That the 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; 3. That he used the counterfeit seal or forged signature or stamp. The offender must NOT be the forger otherwise the crime committed is
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
forgery under Art. 161. In using the forged signature or stamp of the President or forged seal, the participation of the offender is in effect that of an accessory. Although the general rule is that he should be punished by a penalty two (2) degrees lower, under Article 162 he is punished by a penalty only one degree lower.
SECTION TWO: COUNTERFEITING COINS
ARTICLE 164 MUTILATION OF COINS- IMPORTATION AND UTTERANCE OF MUTILATED COINS Acts punished 1. Mutilating coins of the legal currency, with the intent to damage or to defraud another; 2. Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering.
ARTICLE 163 MAKING AND IMPORTING AND UTTERING FALSE COINS
Elements: 1. That there be false or counterfeited coins; 2. That the offender either made, imported or uttered such coins; 3. That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers.
Mutilation – means to take off part of the metal either by filing it or substituting it for another metal of inferior quality. It is to diminish by ingenious means the metal in the coin, and thus diminish its intrinsic value.
A coin is false or counterfeited, if it is forged or if it is not authorized by the Government as legal tender, regardless of its intrinsic value.
Counterfeiting – means the imitation of a legal or genuine coin There is counterfeiting when a spurious coin is made. There must be an imitation of the peculiar design of the particular coin. Uttering – means to pass counterfeited coins Uttering includes delivery or the act of giving them away. It is uttered when it is paid even though the utterer may not obtain the gain he intended. Kinds of coins the counterfeiting of which is punished: 1. Silver coins of the Philippines or coin of the Central Bank; 2. Coin of the minor coinage of the Philippines or the Central Bank; 3. Coin of the currency of a foreign country. Former coins withdrawn from circulation may be counterfeited. Pars. 1 and 2 of Article 163 mention “coin” without any qualifications. As regards par. 3, the used of the word “currency” is not correct because the Spanish text uses the word “moneda” which embraces not only those that are legal tender but also those out of circulation.
The coin must be of legal tender or current coins of the Philippines and not of a foreign country.
ARTICLE 165 SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE Acts Punished 1. Possession of coin, counterfeited or mutilated by another with intent to utter the same knowing that it is false or mutilated; 2. Actually uttering false or mutilated coin, knowing it to be false or mutilated. It does NOT require that the false coin is legal tender. But if the coin being uttered or possessed with intent to utter is a mutilated coin, it must be a legal tender coin. The possession prohibited in Article 165 is possession in general, that is, not only actual, physical possession but also constructive possession or the subjection of the thing to one’s control, otherwise offenders could easily evade the law by the mere expedient of placing other persons in actual, physical possession of the thing although retaining constructive possession or actual control thereof. (People vs. Andrada, 11 C.A. Rep. 147)
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CRIMINAL LAW BOOK TWO SECTION THREE: FORGING TREASURY OR BANK NOTES, OBLIGATIONS AND SECURITIES; IMPORTING AND UTTERING FALSE OR FORGED NOTES, OBLIGATIONS AND SECURITIES
Bank (PNB) checks is not forgery under Art. 166 of RPC but falsification of commercial documents under Art 172 in connection with Art. 171 of the Code. ARTICLE 167 COUNTERFEITING, IMPORTING AND UTTERING INSTRUMENT NOT PAYABLE TO BEARER
ARTICLE 166 FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER AND UTTERING THE SAME Acts penalized: 1. Forging or falsification of treasury or bank notes or other documents payable to bearer; Forging is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; and falsification is committed by erasing, substituting, counterfeiting, or altering by any means, the figures, letters, words, or signs contained therein (Art. 169). 2. Importation of the same: it means to bring them into the Philippines, which presupposes that the obligations or notes are forged or falsified in a foreign country. 3. Uttering the same in connivance with forgers or importers: it means offering obligations or notes knowing them to be false or forged, whether such offer is accepted or not, with a representation, by words or actions, that they are genuine and with an intent to defraud. What may be forged or falsified under Article 166: 1. Treasury or bank notes; 2. Certificates; 3. Other obligations and securities, payable to bearer.
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The Code punishes forging or falsification of bank notes and of documents of credit payable to bearer and issued by the State more severely than counterfeiting of coins because the first tends to bring such documents into discredit and produces a lack of confidence on the part of the holders of the said documents to the prejudice of the interests of the society and the State. Moreover, it is easier to forge or falsify such certificates, notes, etc. and the profit derived therefrom is greater and the incentive for its commission is more powerful. (U.S. vs. Gardner 3 Phil 403). The falsification of Philippine National
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 instrument; 3. That in case of uttering he connived with the importer or forger. Counterfeiting under Art. 167 must involve an instrument payable to order or other document of credit not payable to bearer. ARTICLE 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT Elements: 1. That the treasury or bank note or certificate or other obligation and securities payable to bearer or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another; 2. The offender knows that any of these instruments is forged or falsified; 3. That he performs any of these acts: a. Using any of such forged or falsified instruments; or b. Possession with intent to use, any of the forged or falsified documents.
Possession of false treasury or bank notes alone is not a criminal offense. For it to constitute an offense, possession must be with intent to use said false treasury or bank notes. (People vs. Digoro, G.R. No. L-22032, March 4, 1966)
The accused must have knowledge of the forged character of the note.
A person in possession of falsified document and who makes use of the same is presumed to be the material author of falsification.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 169 HOW FORGERY IS COMMMITTED How committed: 1. By giving to treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; 2. By erasing, substituting, or altering by any means the figures, letters, words or signatures contained therein. PD 247 penalizes defacement, mutilation, tearing, burning or destroying of Central Bank notes and coins. It includes falsification and counterfeiting. Forgery As used in Art. 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to the bearer or to order.
Falsification The commission of any of the eight (8) acts mentioned in Art. 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages.
SECTION FOUR: FALSIFICATION OF LEGISLATIVE, PUBLIC, COMMERCIAL AND PRIVATE DOCUMENTS AND WIRELESS, TELEGRAPH AND TELEPHONE MESSAGES ARTICLE 170 FALSIFICATION OF LEGISLATIVE DOCUMENT Elements: 1. That there be a bill, resolution or ordinance enacted by or approved or pending approval by either House of the Legislative or any provincial board or municipal council; 2. The offender alters the same; 3. That he has no proper authority therefor; 4. That alteration changed the meaning of the document. The bill, resolution or ordinance must be genuine. Offender may be private individual or a public officer. The act of falsification is limited to altering it which changes its meaning. Hence, other acts of falsification, even in legislative documents, are punished either in Art. 171 or under Art. 172. R.A. 248 prohibits the reprinting, reproduction or republication of government publications and official
documents without previous authority. 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 or ecclesiastical minister; The ecclesiastical minister is liable under this article if he shall commit any of the acts of falsification with respect to any record or document of such character that its falsification may affect the civil status of persons. 2. That he takes advantage of his official position when: a. He has the duty to make or prepare or otherwise to intervene in the preparation of the document b. He has the official custody of the document which he falsifies If he did not take advantage of his official position, he would be guilty of falsification of public document by a private individual under Art. 172. 3. The offender falsifies a document. Document – is any written statement by which a right is established or an obligation extinguished or by which a fact may be proven or affirmed. The document must be complete or at least it must have the appearance of a true and genuine document. The document must be of apparent legal efficacy. In the 1st, 2nd, 6th, 7th (second part) and 8th mode of falsification, there must be a GENUINE DOCUMENT. In the other paragraphs of Art. 171, falsification may be committed by simulating or fabricating a document. Different Modes of Falsifying a Document: A. Counterfeiting or imitating handwriting, signature or rubric.
any
Requisites: 1. That there be an intent to imitate or an attempt to imitate; 2. The two signatures or handwriting, the genuine and the forged bear some resemblance to each other. If there is no attempt whatsoever by the accused to imitate the signatures of the other person so
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CRIMINAL LAW BOOK TWO that they are entirely unlike the genuine signature, the accused may be found guilty under the second mode of falsifying a document. B. Causing it to appear that persons have participated in an act or proceeding when they did not in fact so participate. Requisites: 1. That the offender caused it to appear in a document that a person or persons participated in an act or proceeding; 2. That such persons did not in fact so participate in the act or proceeding. The imitation of the signature of the offended party is not necessary in this mode of falsification. C. Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them. Requisites: 1. That persons participated in an act or proceeding; 2. That such person or persons made statements in that act or proceeding; 3. That the offender in making a document, attributed to such person, statements other than those in fact made by such person. D. Making untruthful narration of facts.
statements
in
a
Requisites: 1. That the offender makes in a document statements in a narration of facts; 2. That he has the legal obligation to disclose the truth of the facts narrated by him; 3. That the facts narrated by the offender are absolutely false; 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 narration of facts, not a conclusion of law. Legal obligation means that there is a law requiring the disclosure of the facts narrated. The facts must be absolutely false, the crime of falsification is not violated if there is some
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colorable truth in the statements of the accused. If the narration of facts is contained in an affidavit or a statement required by law to be sworn to, the crime committed is perjury.
E. Altering true dates Date must be essential. The alteration of the date or dates in a document must affect either the veracity of the document or the effects thereof. Alteration of dates in official receipts to prevent discovery of malversation is falsification F. Making alteration or intercalation in a genuine document which changes its meaning. Requisites: 1. That there be an alteration or intercalation (insertion) on a document; 2. That it was made on a genuine document; If the document is not genuine, the crime of estafa is committed. 3. That the alteration and intercalation has changed the meaning of the document; 4. That the change made the document speak something false. Alteration which speaks the truth is not falsification. The idea of deception is inherent in the word alteration — of making the instrument speak something which the parties did not intend it to speak. G. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exist or including in such a copy a statement contrary to or different from that of the genuine original. CANNOT be committed by a private individual or by a notary or public officer who DOES NOT take advantage of his official position. Intent to gain or prejudice is not necessary, because it is the interest of the community which is intended to be guaranteed by the strict faithfulness of the officials charged with the preparation and preservation of the
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS acts in which they intervene. H. Intercalating any instrument or note relative to the issuance in a protocol, registry or official book. ARTICLE 172 FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS
Acts punished: 1. Falsification of public, official or commercial document by a private individual
Elements: a. The offender is a private individual or a public officer or employee who did not take advantage of his official position; b. That he committed any of the acts of falsification enumerated in Art.171 (Pars.1-6); c. That the falsification was committed in a public or official or commercial document.
Public document – a document created, executed or issued by a public official in response to the exigencies of the public service, or in the execution of which a public official intervened Official document – a document which is issued by a public official in the exercise of the functions of his office Commercial document – any document defined and regulated by the Code of Commerce or any other commercial laws 2. Falsification of private document by any person; Elements: a. That the offender committed any of the acts of falsification except those in par. 7, enumerated in Art.171; b. That the falsification was committed in a private document; c. That the falsification caused damage to a third party or at least the falsification was committed with the intent to cause damage.
Private document or instrument executed by a private person without the intervention of a notary public or other person legally authorized, by which document some disposition or agreement is proved, evidenced or set
forth. Mere falsification of private document is not enough. Two things are required: i. He must have falsified the same; ii. He must have performed an independent act which operates to the prejudice of third persons. Damage need not be material, damage to one’s honor is included. There is no crime of estafa through falsification of a private document because the immediate effect of falsification of private document is the same as that of estafa. Generally, falsification is consummated when the genuine document is altered or the moment the false document is executed. It is immaterial that the offender did not achieve his objective.
3. Use of falsified documents. Elements: a. Introducing in a judicial proceeding i. That the offender knew that the document was falsified by another person; ii. That the false document was embraced in Art. 171 or in any subdivision No.1 or 2 of Art. 172; iii. That he introduced said document in evidence in any judicial proceeding. No damage is required. b. Use in any other transaction i. That the offender knew that the document was falsified by another person; ii. That the false document was embraced in Art. 171 or in any of subdivision No. 1 or 2 of Art. 172; iii. That he used such document (not in judicial proceeding); iv. That the use of the false document caused damage to another or at least it was used with intent to cause damage. Notes: If a person knowingly offers in evidence a FALSE WITNESS OR TESTIMONY, Article 184 should apply. If a person makes, presents or uses any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings IN CRIMINAL CASES, such person is liable
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CRIMINAL LAW BOOK TWO under PD 1829 Falsification as a Means to Commit Estafa Falsification of Public/Official or Commercial Document When committed as a necessary means to commit estafa, complex crime is committed
Falsification of Private Document Even when committed as a necessary means to commit estafa, the crime is either estafa or falsification only, because in this type of falsification, an act independent of falsification is required to show intent to defraud
Falsification by Private Individual vs. Falsification of Public Officer Article 172 Article 171 The prejudice to a third party is taken into account so that if damage is not apparent, or at least if with no intent to cause it, the falsification is not punishable
Prejudice to third person is immaterial; what is punished is the violation of public faith and the perversion of truth
b. That the accused used such falsified dispatch; c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with the intent to cause such prejudice. Act No. 1851, Sec. 4, punishes private individuals who forge or alter telegram. SECTION FIVE: FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR SERVICE AND THE LIKE ARTICLE 174 FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATE OF MERIT OR SERVICE Persons liable: 1. Physician or surgeon who, in connection with the practice of profession issued a false certificate; 2. Public officer who issued a false certificate of merit or service, good conduct or similar circumstances; 3. Private individual who falsified a certificate falling in the classes mentioned in Nos. 1 and 2.
ARTICLE 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES AND USE OF SAID FALSIFIED MESSAGES
Certificate – is any writing by which testimony is given that a fact has or has not taken place. The phrase “or similar circumstances” in Article 174 does not seem to cover property, because the circumstance contemplated must be similar to “merit,” “service,” or “good conduct.”
Acts punished: 1. Uttering fictitious wireless, telegraph, or telephone messages; 2. Falsifying wireless, telegraph or telephone messages.
ARTICLE 175 USING FALSE CERTIFICATES
Elements: a. That the offender is an officer or employee of the government or an officer or an employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; b. That he commits any of the above acts. 3. Using such falsified messages. With respect to No. 3, the offender need not be connected to the government or to such corporation. Elements: a. That the accused knew that wireless, cable, telegraph or telephone message was falsified by any person st specified in 1 paragraph of Art.173;
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Elements: 1. That a false certificate mentioned in the preceding article was issued; 2. That the offender knew that the certificate was false; 3. That he used the same. When the use of the false certificates in the preceding article is used in a judicial proceeding, Art. 175 will apply. The use of false document in judicial proceeding under Art 172 is limited to those false documents mentioned in Arts. 171 and 172.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION SIX: MANUFACTURING, IMPORTING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS INTENDED FOR THE COMMISSION OF FALSIFICATION ARTICLE 176 MANUFACTURING AND POSSESSION OF INSTRUMENTS AND IMPLEMENTS FOR FALSIFICATION Acts punished: 1. Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting; 2. Possession with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.
It is not necessary that the implements confiscated form a complete set for counterfeiting, it being enough that they may be employed by themselves or together with other implements to commit the crime of counterfeiting or falsification. Arts. 165 and 176 punish not only actual, physical possession, but also constructive possession or the subjection of the thing to one’s control.
CHAPTER TWO: OTHER FALSITIES (ARTS. 177- 184)
It does not apply to occupant under color of title. Republic Act No. 75 provides penalty for usurping authority of diplomatic, consular or other official of a foreign government in addition to the penalty imposed by the Revised Penal Code There must be a positive, express, and explicit representation on the part of the offender
The acts performed must pertain to: 1. The Government 2. To any person in authority 3. To any public officer ARTICLE 178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME Elements: (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.
Damage must be to public interest. If damage is to private interest, the crime will be estafa under Art. 315, 2(a).
SECTION ONE: USURPATION OF AUTHORITY, RANK, TITLE AND IMPROPER USE OF NAMES, UNIFORMS AND INSIGNIA
Elements: (Concealing true name) 1. That the offender conceals: a. his true name, b. all other personal circumstances; 2. That the purpose is only to conceal his identity.
ARTICLE 177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS
Fictitious name – any other name which a person publicly applies to himself without authority of law
Two offenses contemplated in Art. 177: 1. Usurpation of authority 2. Usurpation of official functions How committed: 1. By knowingly misrepresenting oneself to be an officer, agent or representative of the government, whether local, national or foreign; 2. By performing any act pertaining to a person in authority or public officer of the government under the pretense of official position and without authority.
Using Fictitious Name
Concealing True Name
Element of publicity must be Element of publicity is present. not necessary. The purpose is either to The purpose is merely to conceal a crime, to evade the conceal identity. execution of a judgment, or to cause damage.
It may be violated by a public officer.
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CRIMINAL LAW BOOK TWO Using Fictitious Name (Art. 178) Purpose of the offender is to (a) conceal a crime; (b) evade the execution of a judgment; or (c) to cause damage to public interest.
Usurpation of Civil Status (Art. 348) Purpose is to enjoy the rights arising from the civil status of the person imperson ated
Estafa (par. 2a, Art. 315)
Using Fictitious Name Under P.D. 1829
Purpose is to defraud third persons
Purpose of publicly using a fictitious name is to conceal a crime, evade prosecution or the execution of a judgment or concealing his true name and other personal circumstances for the same purpose or purposes
The crimes under this Article may be complexed with the crime of delivering prisoners from jail, but may not be complexed with evasion of service of sentence. COMMONWEALTH ACT NO. 142, as amended by REPUBLIC ACT NO. 6085 An Act Regulating the Use of Aliases
General rule: No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was registered in the Bureau of Immigration upon entry, or such substitute name as may have been authorized by a competent court.
ARTICLE 179 ILLEGAL USE OF UNIFORM 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 person of which he is not a member; and 3. That said insignia, uniform or dress is used publicly and improperly.
Exception: As pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. No person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth: 1. The person’s baptismal and family name and the name recorded in the civil registry, if different, his immigrant’s name, if an alien, and his pseudonym, if he has such names other than his original or real name, 2. The reason or reasons for the use of the desired alias. The judicial authority for the use of alias, the Christian name and the alien’s immigrant name shall be recorded in the
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proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. No person having been baptized with a name different from that with which he was registered at birth in a local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use.
Wearing the uniform of an imaginary office is NOT punishable. The office must actually exist. An EXACT IMITATION of a uniform or dress is UNNECESSARY. Republic Act No. 493 punishes the wearing of insignia, badge or emblem of rank of the members of the Armed Forces of the Philippines or Constabulary. Republic Act No. 75 punishes the use of uniform, decoration or regalia of a foreign State Executive Order No.297 punishes the illegal manufacture, sale, distribution and use of PNP uniforms, insignias and other accoutrements.
SECTION TWO: FALSE TESTIMONY False testimony – is committed by any person who, being under oath, and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. Three forms of false testimony 1. False Testimony in Criminal Cases (Art. 180-181) 2. False Testimony in Civil Cases (Art. 182)
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS 3. False Testimony in other cases (Art. 183) ARTICLE 180 FALSE TESTIMONY AGAINST A DEFENDANT Elements: 1. That there be a criminal proceeding; 2. That the offender testifies falsely under oath against the defendant therein; 3. That the offender who gives false testimony knows that it is false; Good faith is a defense 4. That the defendant against whom the false testimony is given is either acquitted or convicted in a final judgment.
Penalty depends upon the sentence of the defendant against whom false testimony was given. Defendant must be sentenced to at least a correctional penalty or a fine, or must be acquitted. The offender is liable even if his testimony was not considered by court. The law intends to punish the mere giving of false testimony. The testimony must be complete. Art. 180 applies to Special Penal Laws because Special Penal Laws follow the nomenclature of the Revised Penal Code
ARTICLE 182 FALSE TESTIMONY IN CIVIL CASES Elements: 1. That the testimony must be given in a civil case; 2. That the testimony must relate to the issues presented in said case; 3. That the testimony must be false; 4. That the false testimony must be given by the defendant knowing it to be false; 5. That the testimony must be malicious and given with an intent to affect the issues presented in said case.
Civil case – an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress or a wrong and that every other remedy is a special proceeding (People vs. Hernandez 67 O.G. 8330).
ARTICLE 181 FALSE TESTIMONY FAVORABLE TO THE DEFENDANT
The false testimony in favor of the defendant need not directly influence the decision of the acquittal and it need not benefit the defendant. Conviction or acquittal of defendant in principal case is not necessary. False testimony is punished not because of the effect it actually produces but because of its tendency to favor or to prejudice the defendant. A defendant who falsely testifies in his own behalf in a criminal case can only be guilty of Art. 181 when he voluntarily goes upon the witness stand and falsely imputes to some other person the commission of a grave offense. If he merely denies the commission of the crime or his participation therein, he should not be prosecuted for false testimony. (U.S. vs. Soliman 36 Phil.5 [1917]) Testimony must be complete. Rectification made spontaneously after realizing the mistake is not false testimony.
Art. 182 is NOT applicable when the false testimony is given in special proceedings.
The criminal action for false testimony must be suspended when there is a pending determination of the falsity of the subject testimonies of private respondents in the civil case (Ark Travel Express vs. Judge Abrogar 410 SCRA 148 [2003]). ARTICLE 183 PERJURY
Two ways of committing perjury: 1. By falsely testifying under oath; 2. By making a false affidavit.
Falsely testifying under oath must NOT be in a judicial proceeding. Testimony must be complete.
Elements: 1. That the accused made a statement under oath or executed 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; 4. That the sworn statement or affidavit containing the falsity is required by law.
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CRIMINAL LAW BOOK TWO Note: However, in People v. Angangco (G.R. No. L-47693, Oct.12, 1943), the SC held that the statement need not be required but that it was sufficient if it was AUTHORIZED by law to be made. Material matter – is the main fact which is the subject of the inquiry or any circumstance which tends to prove that fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects the credit of any witness who testifies. Material – when it is directed to prove a fact in issue.
a perjury may be punished under Art. 183 in relation to Art. 17. ARTICLE 184 OFFERING FALSE TESTIMONY IN EVIDENCE Elements: 1. That the offender offered in evidence a false witness or testimony; 2. That he knew the witness or testimony was false; 3. That the offer was made in a judicial or official proceeding.
Relevant – when it tends in any reasonable degree to establish the probability or improbability of a fact in issue. Pertinent – when it concerns collateral matters which make more or less probable the proposition at issue. Oath – any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. Affidavit – a sworn statement in writing; a declaration in writing, made upon oath before an authorized magistrate or officer. Art 183 governs in false testimony given in cases other than those punished in Arts 180-182, and in actions for perjury. Good faith or lack of malice is a defense in perjury. There is no perjury if sworn statement is not material to the principal matter under investigation. There is no perjury through negligence or imprudence. Two contradictory sworn statements are not sufficient to convict of perjury. The prosecution must prove which of the two statements is false, and must show that the statement to be false by other evidence that the contradictory statement.
Art. 184 does not apply when the offender induced a witness to testify falsely. Art. 184 applies when the offender knowingly presented a false witness, and the latter testified falsely. Testimony must be complete Penalty is that for false testimony if committed in a judicial proceeding and the penalty is that for perjury if committed in other official proceeding. CHAPTER THREE: FRAUDS (Arts. 185-189) ARTICLE 185 MACHINATIONS IN PUBLIC AUCTIONS
Acts punishable: 1. Soliciting any gift or promise as a consideration for refraining from taking part in the public auction; Elements: a. That there be a public auction; b. That the accused solicited any gift or a promise from any of the bidders; c. That such gift or promise was the consideration for his refraining from taking part in that public auction. d. That the accused had the intent to cause the reduction of the price of the thing auctioned. Consummated by mere solicitation.
Competent person – a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction
2. Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any artifice.
Subornation of perjury – is committed by a person who knowingly and willfully procures another to swear falsely and he witness suborned does testify under the circumstances rendering him guilty of perjury. Subornation of perjury is NOT expressly penalized in the RPC, but the direct induction of a person by another to commit
Elements: a. That there be a public auction; b. That the accused attempted to cause the buyers to stay away from that public auction; c. That it was done by threats, gifts, promises or any other artifice.
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San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS d. That the accused had the intent to cause the reduction of the price of the thing auctioned. Consummated by mere attempt. ARTICLE 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE Acts punishable: 1. Combination or conspiracy to prevent free competition in market. By entering into any 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. 2. Monopoly to restrain free competition in market. By monopolizing any merchandise or object of trade or commerce, or by combining with any other person or persons to monopolize said merchandise or object 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. 3. Making transactions prejudicial to lawful commerce or to increase the market price of merchandise. The person liable is the: a. Manufacturer, b. Producer, c. Processor, or d. Importer of any merchandise or object of commerce. The crime is committed by (1) combining, (2) conspiring, or (3) agreeing with any person. The purpose is (1) to make transactions prejudicial to lawful commerce, or (2) to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Philippines.
Mere conspiracy or combination is punished. If the offense affects any food substance or other particles of prime necessity, it is sufficient that initial steps are taken. When offense is committed by a
corporation or association, the president and directors or managers are liable when they (1) knowingly permitted or (2) failed to prevent the commission of such offenses. ARTICLE 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER OR OTHER PRECIOUS METALS OR THEIR ALLOYS Articles or merchandise involved: 1. Gold, 2. Silver, 3. Other precious metals, or 4. Their alloys. Elements: 1. That the offender imports, sells or disposes any of those articles; 2. That the stamps, brands or marks of those articles or merchandise fail to indicate the actual fineness or quality of said metal or alloy; 3. That the offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of said metal or alloy. a. Selling the misbranded articles is NOT necessary. b. Art. 187 does not apply to the manufacturer of misbranded articles. The manufacturer is liable for Estafa under Art.315 subdivision 2(b) of the Revised Penal Code. Note: Arts. 188 and 189 have been REPEALED by the Intellectual Property Code. REPUBLIC ACT NO. 8293 Intellectual Property Code Intellectual Property Rights consists of: 1. Copyright and Related Rights; 2. Trademarks and Service Marks; 3. Geographic Indications; 4. Industrial Designs; 5. Patents; 6. Layout-Designs (Topographies) of Integrated Circuits; and 7. Protection of Undisclosed Information Technology transfer arrangements contracts or agreements involving the transfer of systematic knowledge for the manufacture of a product, the application of a process, or rendering of a service including management contracts; and the transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software
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CRIMINAL LAW BOOK TWO except computer software developed for mass market. Criminal action for repetition of infringement If infringement is repeated by the infringer or by anyone in connivance with him after finality of the judgment of the court against the infringer, the offenders shall, without prejudice to the institution of a civil action for damages, be criminally liable therefor. “The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee constitutes patent infringement.” Remedies for infringement Any person infringing a right protected under this law shall be liable: 1. To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods. 2. Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty. 3. Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them. 4. Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order. 5. Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work
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even in the event of acquittal in a criminal case. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings. (Sec. 28, P.D. No. 49a) In determining the number of years of imprisonment and the amount of fine, the court shall consider the value of the infringing materials that the defendant has produced or manufactured and the damage that the copyright owner has suffered by reason of the infringement. Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of: a. Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article; b. Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or c. Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a) Unfair competition: 1. Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose; 2. Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS 3. Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another (Sec. 168.3, Intellectual Property Code). False Designations of Origin; False Description or Representation Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which: 1. Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or 2. In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities (Sec. 160, Intellectual Property Code).
Liable to a civil action for damages and injunction by any person who believes that he or she is or is likely to be damaged by such act. Independent of the civil and administrative sanctions imposed by law the offender may also be criminally liable. REPUBLIC ACT NO. 455 Law on Smuggling
Acts punishable: 1. That the merchandise must have been fraudulently or knowingly imported contrary to law; 2. That the defendant if he is not the importer himself, must have received, concealed, bought, sold or in any manner facilitated the transportation, concealment, or sale of the merchandise and that he must be shown to have knowledge that the merchandise had been illegally imported.
TITLE FIVE: CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS REPUBLIC ACT NO. 9165 Comprehensive Dangerous Drugs Act of 2002 (Repealing RA No. 6425, otherwise known as the Dangerous Drugs Act of 1972) Controlled precursors and essential chemicals (CP/EC) – include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Dangerous Drugs (DD) – include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances Any person charged under any provision of this Act regardless of the imposable penalty shall NOT be allowed to avail of the provisions of plea-bargaining. (Sec. 23) Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, CANNOT avail of the privilege granted by the Probation Law (PD No. 968, as amended). (Sec. 24) Notwithstanding the provisions of the law to the contrary, a positive finding for the use of dangerous drugs shall be a QUALIFYING AGGRAVATING CIRCUMSTANCE in the commission of a crime by an offender, and the applicable penalty provided for in the RPC shall be applicable. (Sec. 25) All proceeds and properties derived from the unlawful acts under this Act shall be confiscated and forfeited in favor of the State (Sec. 20) PDEA shall take charge and have custody of all DD, CP/EC and equipment/ paraphernalia confiscated, seized or surrendered for proper disposition. (Sec. 21) If the violators are government officials and employees, maximum penalties of the unlawful act plus absolute perpetual disqualification from any public office shall be imposed. (Sec 28). In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings,
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unless death is the penalty. (Sec. 31) Dangerous Drugs Test and Record Requirement (Article III) The following shall be subjected to undergo drug testing: 1. Applicants for driver’s license. 2. Applicants for firearm’s license and for permit to carry firearms outside of residence. All persons who by the nature of their profession carry firearms shall undergo drug testing. 3. Students of secondary and tertiary schools. 4. Officers and employees of public and private offices (whether domestic or overseas) Shall be subjected to undergo a random drug test. Any officer or employee found positive of use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination subject to the provisions of Art. 282 of the Labor Code and pertinent provisions of the Civil Service Law. 5. Officers and members of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test. 6. All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. (SEE NOTE # 2) Notes: 1. The testing requirement is no longer required for those charged before the prosecutor’s office. The Court held that such testing is unconstitutional as it effectively singles out its subject and seeks to violate his rights against selfincrimination and privacy. A person accused of an offense does not consent to such testing and neither does he waive his right to privacy simply by being a person accused of a crime. (SJS v. DDB and PDEA, G.R. No. 157870, November 3, 2008) 2. The Court has also held that the testing requirement as to national officials whose qualifications have been expressly set in the Constitution, such as the President, Vice President, Senators and Congressmen, is unconstitutional. Where the Constitution has expressly set out the qualifications, these are exclusive and may not be broadened nor circumscribed by legislative fiat. (SJS v. DDB and PDEA, G.R. No. 157870, November 3, 2008)
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Those found to be positive for dangerous drugs shall be subjected to the provisions of Sec. 15 (Use of Dangerous Drugs), which involves rehabilitation for a minimum period of 6 months for the first offense, or imprisonment of 6 to 12 years for the second offense. The privilege of suspended sentence shall be availed of only ONCE by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 (Use of Dangerous Drugs) but not more than eighteen (18) years of age at the time when judgment should be promulgated. (Sec. 68)
Acts Punished: (For table of acts punished see Annex J) 1. Importation of dangerous drugs and/or controlled precursors and essential chemicals. (Section 4) 2. Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals. (Section 5) 3. Maintenance of a den, dive or resort. (Section 6) 4. Employment in and visiting a den, dive or resort. (Section 7) 5. Manufacture of dangerous drugs and/or controlled precursors and essential chemicals. (Section 8) 6. Illegal chemical diversion of controlled precursors and essential chemicals. (Section 9) 7. Manufacture or delivery of equipment, instrument, apparatus and other paraphernalia for dangerous drugs and/or controlled precursors essential chemicals. (Sec. 10) 8. Possession of dangerous drugs. (Sec. 11) 9. Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs. (Sec. 12) 10. Possession of dangerous drugs during parties, social gatherings or meetings or in the proximate company of at least 2 persons. (Sec. 13) 11. Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs during parties, social gatherings or meetings or in the proximate company of at least 2 persons. (Sec. 14) 12. Use of dangerous drugs. (Sec. 15) 13. Cultivation or culture of plants classified as dangerous drugs or are sources thereof. (Sec. 16) 14. Failure to maintain and keep records of
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS transactions on dangerous drugs and/or controlled precursors and essential chemicals. (Sec. 17) 15. Unnecessary prescription of dangerous drugs. (Sec. 18) 16. Unlawful prescription of dangerous drugs. (Sec. 19) Other Acts Punished Under RA 9165 1. Misappropriation, misapplication or failure to account seized, confiscated or surrendered DD, CP/EC and plants which are sources of DD, instruments, paraphernalia or lab equipment, including proceeds/ properties obtained from the unlawful act (Sec. 27). 2. Benefitting from the proceeds of trafficking of dangerous drugs. (Sec. 27) 3. Receiving financial/material contributions from persons found guilty of trafficking dangerous drugs. (Sec. 27) 4. Planting of dangerous drugs, controlled precursors or essential chemicals as evidence. (Sec. 29) 5. Consenting or knowingly tolerating any violation of RA 9165. (Sec. 30) 6. Knowingly consenting to, tolerating, or authorizing the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in the importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of dangerous drugs, or chemical diversion if the same are owned by or under the control or supervision of the officers of juridical entities. (Sec. 30) 7. Violating any rule or regulation issued by the DDB pursuant to RA 9165. (Sec. 32) 8. Issuance of a false or fraudulent dangerous drug test result. (Sec. 37) 9. Violation of the confidentiality rule on records of drug dependents under voluntary submission. (Sec. 72) 10. Failure or refusal to appear as a witness for any violation of this act. (Sec. 91) 11. Delay or bungling in the handling of the prosecution of drug related cases. (Sec. 92) Custody and Disposition of Confiscated, Seized, Surrendered Dangerous Drugs, Paraphernalia etc. (Sec. 21) 1. Physical inventory and photograph the articles seized in the presence of the accused, his representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. 2. Submit the article within 24 hours to the PDEA Forensic Laboratory for a qualitative
and quantitative examination. 3. Certification of the results of the laboratory examination within 24 hours from the receipt of the subject items. When the volume of the subject does not allow the completion of the examination within 24 hours, a partial laboratory report shall be issued, with a final certification to follow within the next 24 hours. 4. Filing of the criminal case in court. 5. Ocular inspection by the Court of the subject seized, confiscated or surrendered. 6. Within the next 24 hours, the burning or destroying of the items in the presence of the accused or his counsel, representative from the media, DOJ, civil society, and any elected public official. 7. Sworn certification of the burning or disposal is issued by the DDB. 8. Submission of the sworn certificate of destruction or burning to the court. 9. After promulgation of judgment by the court, the representative sample, with leave of court, shall be turned over to the PDEA which shall destroy the same within 24 hours from its receipt. 10. The DDB shall be informed of the termination of the case. Note: Non-compliance with the procedure outlined in Section 21(a), of Republic Act No. 9165, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. (People v. Lopez GR No. 181747 September 29, 2008) Requisites for immunity from prosecution and punishment: (Sec. 33) 1. The accused should be prosecuted for violation of Sec. 7, 11, 12, 14, 15, and 19 of the said Act; 2. Voluntarily gives information of any of these acts: Sec. 4, 5, 6, 8, 12, 13, and 16; violation of any other provisions of the Act if committed by a syndicate including any information leading to the whereabouts, identities, and arrests of any/ all of the syndicate members; 3. He willingly testifies against any of the individuals; 4. His testimony has complied with the following: a. It is necessary for the conviction of the above persons; b. It is not yet in the possession of the State; c. It can be substantially corroborated in his material points;
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CRIMINAL LAW BOOK TWO d. The witness has not been convicted of the crime involving moral turpitude except when there is no evidence available for his prosecution other than the testimony of the witness; e. The witness shall strictly and faithfully comply without delay any conditions/ undertaking lawfully imposed by the Sate; f. The witness does not appear to be the most guilty; and g. There is no direct evidence of available mistake except for the testimony of the witness. Grounds for termination of immunity: (Sec. 34) 1. If the testimony is false, malicious, or may only harass or prejudice the accused. 2. Failure or refusal to testify without just cause. 3. Violating any condition for immunity. Effect of termination of immunity: (Sec. 34) The immunity shall cease and the witness shall be prosecuted or cited for contempt. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation (Sec. 54) The drug dependent may, by himself/ herself or through his/ her parent, spouse, th guardian or relative within the 4 degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If positive: a. The court issues an order for rehabilitation and treatment to a center for not less than 6 months; or b. May be placed in the care of DOH accredited physician if there’s no available center; or c. When the drug dependent is under 18 years old, and first time offender, and non-confinement in a center, will not pose a serious danger to his/ her family or community
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Confinement in a center shall not exceed 1 year, after which time the Court, as well as the board, shall be apprised by the head of the treatment and rehab center of the status of said
drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/ her family or community. Exemption from the Criminal Liability under the Voluntary Submission Program (Sec. 5): Requisites: 1. He/ she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least 18 months following temporary discharge from confinement in the center 2. He/ she has never been charged or convicted under this Act 3. He/ she has no record of escape from a center 4. He/ she possesses no serious danger to himself/ herself, his/ her family or the community by his/ her exemption from criminal liability. Compulsory confinement of a drug dependent who refuses to apply under the voluntary submission program (Sec. 61): Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose Such petition may be filed by any person authorized by the Board with the RTC of the province or city where such person is found. Prescription of the offense charged against a drug dependent under the Compulsory Submission Program (Sec. 63) It will not run during the time that the drug dependent is under confinement in a Center or otherwise under the treatment and rehabilitation program approved by the Board Suspension of Sentence of a First-Time Minor Offender (Sec. 66) Accused: over 15 years old at the time of violation of Sec. 11 of this Act but not more than 18 years old at the time when the judgment should have been promulgated after having been found guilty of said offense. Suspension may be given subject to the following conditions: Has not been previously convicted of
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
violating any provision of CDDA of 2002, DDA of 1972 , RPC, or any special penal laws Has not been previously committed to a Center or to the care of a DOHaccredited physician; and Board favorably recommends it
Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender (Sec. 67) If the first time minor offender under suspended sentence complies with the rules and regulations of the Board, the court, upon recommendation of the Board, shall discharge the accused and dismiss all proceedings. Dangerous Drugs Board and Philippine Drug Enforcement Agency (Article IX) Dangerous Drugs Board – shall be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. Philippine Drug Enforcement Agency (PDEA)- shall serve as the implementing arm of the Board, and shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act. Among the powers and duties of the PDEA is to prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same. (Sec. 84 [h]) The PDEA shall be the lead agency in the investigation of any violation of RA No. 9165. (Sec. 86, last par.) TITLE SIX: CRIMES AGAINST PUBLIC MORALS CHAPTER ONE: GAMBLING AND BETTING (ARTS. 195-199)
Arts. 195-199 and provisions of PD 483 and 449 are repealed insofar as they are inconsistent with PD 1602, which provides for stiffer penalties for violation of the Gambling Laws.
Gambling – is any game of chance or scheme, whether upon chance or skill, wherein wagers consisting of money, articles or value or representative of value are at stake or made. Under PD 1602, the following may be held liable: 1. Any person taking part, directly or indirectly in any illegal or unauthorized activities or games of cockfighting, jueteng, jai alai or horse racing to include bookie operations and game fixing, numbers, bingo and other forms of lotteries; cara y cruz, pompiang and the like; 7-11 and any game using dice; black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguigue and other card games; pak que, high and low, mahjong, domino and other games using plastic tiles and the like; slot machines, roulette, pinball and other mechanical contraptions and devices; doc racing, boat racing, car racing and other forms of races; basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations; banking or percentage game, or any other game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made; or any person knowingly permitting any form of gambling previously enumerated to be carried on in an inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him. 2. Any person knowingly permitting any form of gambling to be carried on in a place which has a reputation of a gambling place or that prohibited gambling is frequently carried on therein, or in a public or government building or barangay hall; or maintainer or conductor the above gambling schemes. 3. A government official who is a maintainer, conductor or banker of the gambling schemes, or the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and other machinations. 4. Any person who knowingly and without lawful purpose in any hour of any day, possesses any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai alai or horse racing bookies and similar games of lotteries and numbers which have taken
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CRIMINAL LAW BOOK TWO place or about to take place. 5. Any barangay official who, with knowledge of the existence of the gambling house or place in his jurisdiction fails to abate the same or take action in connection therewith. 6. Any security officer, security guard, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have the reputation of a gambling place or where gambling activities are being held. Elements of lottery: 1. Consideration; 2. Chance; 3. Prize or some advantage or inequality in amount or value which is in the nature of a prize. ARTICLE 195 KNOWINGLY PERMITTING GAMBLING TO BE CARRIED ON IN A PLACE OWNED OR CONTROLLED BY THE OFFENDER Elements: 1. That a gambling game was carried on in an inhabited or uninhabited place or in any building, vessel or other means of transportation; 2. That the place, building, vessel or other means of transportation is owned or controlled by the offender 3. That the offender permitted the carrying on of such game, knowing that it is a gambling game. ARTICLE 196 IMPORTATION SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS Acts punished relative to lottery tickets or advertisements: 1. By importing into the Philippines from any foreign place or port any lottery ticket or advertisement. 2. By selling or distributing the same in connivance with the importer. 3. By possessing, knowingly and with intent to use, lottery tickets or advertisements. 4. By selling or distributing the same without connivance with the importer.
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The possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same.
PRESIDENTIAL DECREE NO. 483 Penalizing Betting, Game-fixing or Point-Shaving and Machinations in Sport Contests Note: This repealed Article 197 (Betting in Sports Contests) of RPC. Acts punishable: Game-fixing, point-shaving, game machination, in connection with the games of basketball, volleyball, softball, baseball; chess, boxing bouts, “jai-alai,” “pelota” and all other sports contests, games or races; as well as betting therein except as may be authorized by law (Sec. 2) Definitions: 1. 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 2. Game-fixing – any arrangement, combination, scheme or agreement by which the result of any game, races or sports contests shall be predicted and/or known other than on the basis of the honest playing skill or ability of the players or participants 3. Point-shaving – any such arrangement, combination, scheme, or agreement by which the skill of ability of any player or participant in a game, race or sports contest 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 4. 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, race or sports contest (Sec 1) Liability of offenders: When the offender is an official, such as promoter, referee, umpire, judge, or coach in the game, race, sports contests, or the manager or sponsor of any participating team, individual, or player therein, or participants or players in such games, races, or other sports contests, he shall, upon conviction be punished by prision correccional in its maximum period and a fine of 2,000 pesos with subsidiary imprisonment in case of insolvency, at the discretion of the court. This penalty shall also be imposed when the offenders compose a syndicate of five or more persons. In case of any other offender; he shall, upon conviction, be punished by prision
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
correccional in its medium period and a fine of 1,000 pesos with subsidiary imprisonment in case of insolvency at the discretion of the court. When the offender is an official or employee of any government office or agency concerned with the enforcement or administration of laws and regulations on sports the penalty provided for in the preceding paragraph shall be imposed. In addition, he shall be disqualified from holding any public office or employment for life. If he is an alien, he may be deported. (Section 3) ARTICLE 198 ILLEGAL BETTING ON HORSE RACES
Acts punishable in illegal betting on horse races: 1. By betting on horse races during the periods not allowed by law. 2. By maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom, during the periods not allowed by law. Totalizer: a machine for registering and indicating the number and nature of bets made on horse races. Horse Races are allowed during: 1. Sundays not reserved 2. 24 Saturdays 3. Legal Holidays EXCEPT: a. Independence Day b. Rizal Day c. Registration or Voting day d. Holy Thursday e. Good Friday ARTICLE 199 ILLEGAL COCKFIGHTING Modified by: PD 449 Under PD 449, the following may be held liable: 1. Any person who, directly or indirectly, participates in cockfights, by betting money or other valuable things in a day other than those permitted by law. 2. Any person who, directly or indirectly, organizes cockfights at which bets are made in a day other than those permitted by law. 3. Any person who, directly or indirectly, participates in cockfights, by betting money or other valuable things at a place other than a licensed cockpit. 4. Any person who, directly or indirectly, organizes cockfights at which bets are
made at a place other than a licensed cockpit. 5. Owner, manager or lessee of the cockpit who shall permit gambling of any kind on the premises of the cockpit or place of cockfighting during cockfights. Cockfighting is allowed during: 1. Sundays 2. Legal Holidays EXCEPT: a. Rizal Day b. Independence Day c. National Heroes Day d. Holy Thursday e. Good Friday f. Election or Referendum Day g. During the Registration days for election or referendum 3. During local fiestas for not more than 3 days 4. During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days CHAPTER TWO: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS (ARTS. 200-202) ARTICLE 200 GRAVE SCANDAL Elements: 1. That the offender performs an act or acts. 2. That such act or acts be highly scandalous as offending against decency or good customs. 3. That the highly scandalous conduct is not expressly falling within any article of this Code. 4. That the act or acts complained of be committed in a public place or within the public knowledge or view. Decency – means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc. Customs – established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof Grave scandal – consists of acts which are offensive to decency and good customs which, having committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same
If the act or acts of the offender are punished under another article of the
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Revised Penal Code, Art. 200 is NOT applicable. When the acts were performed in a private house and seen by one person, the crime was not committed. Grave Scandal
Alarms and Scandal
Refers to moral scandal. It does not necessarily disturb public peace. However, it must be committed within public view.
Refers to disturbances of the public peace which are not to acts which are offensive to decency.
ARTICLE 201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS Persons Liable: 1. Those who shall publicly expound or proclaim doctrines openly and contrary to public morals. 2. The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners, operating the establishment or selling the same. Mere possession is not punishable. The crime of illegal publication is also committed when the real printer’s name is not divulged. 3. Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral shows which are proscribed or are contrary to morals, good customs, established policies, lawful orders, decrees and edicts 4. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals
Publicity is required.
Morals – imply conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes, specifically, to sexual conduct The Test of Obscenity The test is whether the tendency of the matter charged as obscene, is to corrupt those whose minds are open to such immoral influences, and into whose hands such a publication may fall and also whether or not such publication or act shocks the ordinary and common sense of men as an indecency. Indecency – an act against the good behavior and a just delicacy
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Disposition of prohibited articles: The disposition of the literature, films, prints, engravings, sculptures, paintings or other materials involved in violation shall be governed by the following rules: 1. Upon conviction of the offender – to be forfeited in favor of the government to be destroyed. 2. Where the criminal case against the violator of the decree results in an acquittal – to be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the chief constabulary. 3. The person aggrieved by the forfeiture action of the Chief of Police may, within 15 days after his receipt of the copy of the decision, appeal the matter to the Secretary of the National Defense for review. The decision of the Secretary of the National Defense shall be final and unappealable. (Sec. 2, P.D. 969) Obscene publications and indecent shows under RA 7610 Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibition and indecent shows, whether live or in video, pose, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period. If the child used as a performer, subject or seller/ distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian or person entrusted in any capacity with care of a child who shall cause and/ or allow such child to be employed or to participate in an obscene play, scene, act, movie or show in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. ARTICLE 202 VAGRANTS AND PROSTITUTES Persons Liable: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself to some lawful calling; (Mendicant) 2. Any person found loitering about public or semipublic buildings or places or tramping or wondering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; (Vagrant) 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose. 5. Prostitutes Art. 202 is NOT applicable to minors Persons below eighteen (18) years of age shall be exempt from prosecution for the crimes of vagrancy and prostitution under Art. 202 of the RPC, of mendicancy under PD 1563, and sniffing of rugby under PD 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. (Sec. 58, RA 9344 otherwise known as the “Juvenile Justice and Welfare Act of 2006”) Prostitutes – women who, for money or profit habitually indulge in sexual intercourse or lascivious conduct.
authority.
CHAPTER TWO: MALFEASANCE AND MISFEASANCE IN OFFICE (ARTS. 204-212) SECTION ONE: DERELICTION OF DUTY Misfeasance – improper performance of some act which might lawfully be done Malfeasance – the performance of some act which ought not to be done Nonfeasance – omission of some act which ought to be performed ARTICLE 204 KNOWINGLY RENDERING UNJUST JUDGMENT
Dissolutes- lax, unrestrained, immoral Ruffians- violent or lawless individuals Persons Liable under PD 1563 or the Mendicancy Law: Mendicant himself Any person who abets mendicancy by giving alms directly to mendicants, exploited infants, and minors on public roads, sidewalks, parks and bridges.
The term “public officers” embraces every public servant from the highest to the lowest. For the purposes of the RPC, it obliterates the standard distinction in the law of public officers between “officer” and “employee.” Temporary performance of public functions by a laborer makes him a public officer
Elements: 1. That the offender is a judge; 2. That he renders a judgment in a case submitted to him for decision; 3. That the judgment is unjust; 4. That the judge knows that his judgment is unjust.
TITLE SEVEN: CRIMES COMMITED BY A PUBLIC OFFICER
Judgment – the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding
ARTICLE 203 WHO ARE PUBLIC OFFICERS
Unjust judgment – is one which is contrary to law, or is not supported by evidence, or both
Requisites: To be a public officer one must be – 1. Taking part in the performance of public functions in the government, or performing in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; and 2. That his authority to take part in the performance of public functions or to perform public duties must be – a. By direct provision of the law, or b. By popular election, or c. By appointment by competent
Sources of unjust judgment: 1. Error, or 2. Ill-will or revenge, or 3. Bribery
There is no liability at all for a mere error in good faith. There must be evidence that the judgment is unjust for it cannot be presumed. The Supreme Court must have declared the judgment as unjust in a certiorari, prohibition, or administrative proceeding.
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CRIMINAL LAW BOOK TWO ARTICLE 205 JUDGMENT RENDERED THROUGH NEGLIGENCE Elements: 1. That the offender is a judge; 2. That he renders a judgment in a case submitted to him for decision; 3. That the judgment is manifestly unjust; 4. That it is due to his inexcusable negligence or ignorance. “Manifestly Unjust Judgment” - It is so manifestly contrary to law, that even a person having a meager knowledge of the law cannot doubt the injustice (Albert)
Abuse of discretion or mere error of judgment is NOT punishable. ARTICLE 206 UNJUST INTERLOCUTORY ORDER
Elements: 1. That the offender is a judge; 2. That he performs any of the following acts: a. Knowingly renders unjust interlocutory order or decree, or b. Renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. Interlocutory order – an order which is issued by the court between the commencement and the end of a suit or action and which decides some point or matter, but which, however, is not a final decision of the matter in issue Test: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. ARTICLE 207 MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE Elements: 1. That the offender is a judge; 2. That there is a proceeding in court. 3. That he delays the administration of justice; 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. Mere delay without malice is NOT a felony under this article. If the delay is NOT malicious, but committed through gross negligence,
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the crime committed is that under RA 3019, Sec. 3(e). ARTICLE 208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE Acts punished: 1. By maliciously refraining from instituting prosecution against violators of the law; 2. By maliciously tolerating the commission of a crime. Elements: 1. That the offender is a public officer who has a duty to cause the prosecution of, or to prosecute offenses; 2. That knowing the commission of the crime, he does not cause the prosecution of the criminal or knowing that a crime is about to be committed he tolerates its commission; and 3. That the offender acts with malice and deliberate intent to favor the violator of the law. The guilt of the offender is a prejudicial question to the liability of the officer charged under this provision. Who Can Be Offenders in Art. 208? 1. Public officer Officers of the prosecution department, whose duty is to institute criminal proceedings upon being informed 2. Officer of the law By reason of position held by them are duty-bound to cause prosecution and punishment of offenders. Note: Any person who solicits, accepts, or agrees to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender is liable under PD 1829. ARTICLE 209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR — REVELATION OF SECRETS Acts punished: 1. Causing damage to his client, either: a. By any malicious breach of professional duty; or b. Inexcusable negligence or ignorance If no damage is caused, attorney may be held administratively or civilly liable.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS 2. Revealing any of the secrets of his client learned by him in his professional capacity Damage is NOT necessary. 3. Undertaking the defense of the opposing party in the same case without the consent of his first client after having undertaken the defense of said first client or after having received confidential information from said client If the client consents to the attorney’s taking the defense of the other party, there is no crime. Procurador judicial – a person who had some practical knowledge of law and procedure, but not a lawyer, and was permitted to represent a party in a case before an inferior court SECTION TWO: BRIBERY ARTICLE 210 DIRECT BRIBERY
Acts Punished 1. By agreeing to perform, or by performing in consideration of any offer, promise, gift or present, an act constituting a crime, in connection with the performance of official duties. The acceptance of the offer or promise is enough to consummate the crime. Absent such acceptance, only the person making the offer or promise is liable for Attempted Corruption of a Public Officer. 2. By accepting a gift in consideration of execution of an act which does constitute a crime, in connection with performance of his official duty. The gift must be accepted by public officer. The act must be unjust.
himself or through another; 3. That such offer or promise be accepted, or gift or present received by the public officer – a. With a view to committing some crime; or b. In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or c. To refrain from doing something which it is his official duty to do; 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties. The provisions of Art. 210 are made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties. (Art. 210, last par.) For the purpose of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public officer. ARTICLE 211 INDIRECT BRIBERY Elements: 1. That the offender is a public officer; 2. That he accepts gifts; 3. That the said gifts are offered to him by reason of his office. Direct Bribery
Indirect Bribery
As to consideration
the not the
In both crimes the public officer receives gift. As to existence of agreement
the
3. By agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in consideration of a gift or promise. The third form of direct bribery differs from prevaricacion in that in bribery, the offender refrained from doing his official duty in consideration of a gift received or promised. This element is not necessary in the crime of prevaricacion. Elements of direct bribery: 1. That the offender be a public officer; 2. That the offender accepts an offer or a promise or receives a gift or present by
There is agreement between the public officer and the giver of gift or present.
No such exists
agreement
As to necessity of the performance of the act The offender agrees to perform or performs an act or refrains from doing something, because of the gift or promise.
It is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office.
There is no attempted or frustrated indirect bribery because it is committed by accepting gifts offered to the public officer by reason of his office. If he does not accept the gifts, he does not commit the
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CRIMINAL LAW BOOK TWO crime. If he accepts the gifts, it is consummated. It is considered indirect bribery even if there was a sort of an agreement between public officer and giver of gift. Receiving of gifts by public officials and employees, and giving of gifts by private persons, on any occasion, including Christmas is punishable.
Note: PD 46 punishes: 1. Any public official or employee who receives, directly or indirectly; and 2. Any private person who gives, or offers to give: Any gift, present or other valuable thing to any occasion, when such gift, present or other valuable thing is given by reason of the former’s official position, whether the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives. ARTICLE 211-A QUALIFIED BRIBERY Elements: 1. That the offender is a public officer entrusted with law enforcement; 2. That the offender refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusión perpetua and/or death;
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.
This article is concerned with the liability of the person who shall have made the offers or promises or given the gifts to the public officer. The crime is attempted if the offer, promise, gift or present was refused and consummated if accepted. PD 749 grants immunity from prosecution to givers of bribes and other gifts and to their accomplices if they willingly testify against public officers or employees in bribery and other graft cases. For the immunity to be enjoyed, the following conditions must concur: a. The information must refer to consummated violations of any of the provisions of law, rules and regulations mentioned in PD 749; b. The information and testimony are necessary for the conviction of the accused public officer; c. Such information and testimony are not yet in the possession of the State d. Such information and testimony can be corroborated on its material points; and e. The informant or witness has not been previously convicted of a crime involving moral turpitude. REPUBLIC ACT NO. 3019 As amended by RA 3047, PD 77, and BP 195 Anti-Graft and Corrupt Practices Act
Section 2. Definition of Terms Note: If the crime committed is punishable by a penalty less than reclusion perpetua, the public officer is liable under Article 208 and direct bribery. 3. That the offender refrains from arresting or prosecuting the offender in consideration of any promise, gift or present. The guilt of the offender is a prejudicial question to the liability of the officer charged under this provision. ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS Elements: 1. That the offender makes, offers or promises or gives gifts or presents to a
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Government – the national government, the local government, the GOCCs and all other instrumentalities or agencies of the government Public officer – elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt services receiving compensation, even nominal from the government. “Receiving any gift” - accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity,
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. Section 3. Corrupt Practices of Public Officials: The corrupt practices herein enumerated are in addition to acts or omissions of public officers already penalized by existing law. 1. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense Persons Liable: a. Public officer who persuades, induces, or influences another public officer. b. Public officer who is persuaded, induced or influenced. 2. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any other contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law The lack of “demand” is immaterial. After all, Sec. 3(b) of RA 3019 uses the word “or” between requesting and receiving. There must be a clear intention on the part of the public officer to take the gift so offered and consider it as his or her own property from then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to lead the court to conclude that the crime has been committed. (Peligrino vs. People, G.R. No. 136266, August 31, 2001) 3. Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity has secured or obtained, or will secure or obtain, any government permit or license, in consideration for the help given or to be given, without prejudice to Sec. 13 of this Act. 4. Accepting or having any member of his
family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within 1 year after his termination. 5. Causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or Government corporations charged with the grant of licenses or permits or other concessions To be held liable under said section, the act of the accused which caused undue injury must have been done with manifest partiality, evident bad faith or gross inexcusable negligence. If the act was committed with malice, the crime committed may be that under Article 207 (malicious delay in the administration of justice) of the RPC. Gross negligence negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their property. (Alejandro v. People, G.R. No. 81031, February 20, 1989) In case of public officials, there is gross negligence when a breach of duty is flagrant and palpable. (Quibal v. Sandiganbayan, G. R. No. 109991, May 22, 1995). 6. Neglecting or refusing, after due demand or request, without sufficient justification, to act within 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. 7. Entering on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or
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CRIMINAL LAW BOOK TWO will profit thereby. It is not necessary that the public officer profited or will profit from the contract or transaction. It is the commission of the act as defined by law and not the character thereof that determines whether the provision has been violated. 8. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by law from having any interest. 9. Directly or indirectly becoming interested, for personal gain, or having material interest in any transaction or act requiring the approval of a board, panel or group which he is a member; and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong. 10. Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not qualified or entitled. 11. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized date If damage was caused, Article 229 (revelation of secrets by an officer) under the RPC is committed. Section 4. Prohibition on Private Individuals 1. Taking advantage of family or close personal relation with public official is punished Family relation- include the spouse or relatives by consanguinity or affinity in the third civil degree
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Close personal relation- include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. 2. Knowingly inducing or causing any public official to commit any of the offenses defined in Section 3 Section 5. Prohibition on certain relatives The spouse or any relative, by RD consanguinity or affinity, within the 3 CIVIL DEGREE, of the President, the Vice-President, Senate President, or the Speaker of the House of Representatives is prohibited to intervene directly or indirectly, in any business, transaction, contract or application with the government. Exceptions to the provisions: a. Any person who prior to the assumption of office of any of those officials to whom he is related, has been already dealing with the government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office b. Any application filed by him, the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with the requisites provided by law, or rules or regulations issued pursuant to law c. Any act lawfully performed in an official capacity or in the exercise of a profession Section 6. Prohibition on Members of Congress Members of Congress during their term are prohibited to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by them. The prohibition shall also apply to any public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution and acquires or receives any such interest during his incumbency. The member of Congress or other public officer, who, having such interest prior to the approval of a law or resolution authored or recommended by him,
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS continues for thirty days after such approval to retain his interest also violates this section. Section 8. Prima facie evidence of and dismissal due to unexplained wealth A public official who has been found to have acquired during his incumbency, whether in his name or the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his lawful income (RA 1319) Ground for forfeiture of unexplained wealth Section 11. Prescription of offenses 15 years – prescriptive period of all offenses under the Act
decrees and orders intended to benefit particular persons or special interests; 6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves.
These should be committed by a combination or through a series of acts. There should be at least two acts otherwise the accused should be charged with the particular crime committed and not with plunder. A COMBINATION means at least two acts of a different category while a SERIES means at least two acts of the same category (Estrada vs. Sandiganbayan, G.R. No. 148560, November 21, 2001).
Section 12. Termination of office No public officer is allowed to resign or retire: 1. Pending investigation, criminal or administrative or 2. Pending a prosecution against him 3. For any offense under the Act or under the provisions of the RPC on Bribery Section 14. Exception Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local custom or usage REPUBLIC ACT NO. 7080 ANTI-PLUNDER ACT Means or schemes to acquire ill-gotten wealth: 1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; 2. By receiving directly or indirectly, any commission, gift, share, percentage or any other form of pecuniary benefit from any person and/or entity in connection with any government contract/project or by reason of his office/position; 3. By the illegal or fraudulent conveyance or disposition of assets belonging to the government; 4. By obtaining, receiving or accepting, directly or indirectly, any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementing
Section 2. Definition of the Crime of Plunder; Penalties Plunder – a crime committed by any public officer, by himself , or in connivance with his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, by amassing, accumulating or acquiring ill-gotten wealth in the aggregate amount or total value of at least 50 million pesos. Penalty: Reclusion Perpetua to Death Mitigating and extenuating circumstances shall be considered by the courts in the imposition of penalty. Section 4. Rule of Evidence It is NOT necessary to prove each and every criminal act done. A pattern of overt or criminal acts indicative of the over-all unlawful scheme or conspiracy shall be sufficient. Section 6. Prescription of Crimes The crime punishable under this Act shall prescribe in 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 or laches or estoppel. Plunder is a crime malum in se because the constitutive crimes are mala in se. The elements of mens rea must be proven in a prosecution for plunder. (Estrada vs. Sandiganbayan, G.R. No. 148560, November 21, 2001)
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CRIMINAL LAW BOOK TWO reason of the transaction. It is sufficient that the public officer who acted in his official capacity had the intent to defraud the Government.
CHAPTER THREE: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS (ARTS. 213-216) ARTICLE 213 FRAUD AGAINST THE TREASURY AND SIMILAR OF OFFENSES Acts Punished 1. By entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the Government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds 2. By demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in the collection of taxes, licenses, fees, and other imposts 3. By failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts 4. By collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees and other imposts Elements of frauds against public treasury (Par. 1): 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 accounts relating to public property or funds 4. That the accused had intent to defraud the Government.
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The offender must have the duty as public officer to deal with any person with regard to furnishing supplies, making of contracts, or the adjustments or settlement of accounts relating to public property or funds. This crime is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of a scheme to defraud the government. It is not necessary that the government is actually defrauded by
Elements of illegal exactions (Pars. 2-4): 1. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts; 2. He is guilty of any of the following acts or omissions: a. Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law; 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.
Mere demand for larger or different amount is sufficient to consummate a crime. When there is deceit in demanding a greater fee than those prescribed by law, the crime committed is estafa and not illegal exaction. A tax collector who collected a sum larger than that authorized by law and spent the same is guilty of illegal exaction and malversation. Officers or employees of the Bureau of Internal Revenue or Bureau of Customs are not covered by this article. The National Internal Revenue Code or the Administrative Code applies. ARTICLE 214 OTHER FRAUDS
Elements: 1. That the offender is a public officer; 2. That he takes advantage of his official position; 3. That he commits any of the frauds or deceits enumerated in Arts. 315 to 318 (estafa, other forms of swindling, swindling a minor, and other deceits). The penalty under this article is in addition to the penalties prescribed in the Articles violated. Not a crime but considered as a special aggravating circumstance
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 215 PROHIBITED TRANSACTIONS Elements: 1. That the offender is an appointive public officer; Examples: justices, judges or fiscals, employees engaged in the collection and administration of public funds 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; 4. That he becomes interested in the transaction during his incumbency. The transaction must be one of exchange or speculation, such as buying stocks and selling stocks, commodities, land, etc., hoping to take advantage of an expected rise and fall in price. Purchasing of stocks or shares in a company is simply an investment and is not a violation of the article. But buying regularly securities for resale is speculation. ARTICLE 216 POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER Persons liable: 1. Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene. 2. Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted. 3. Guardians and executors with respect to the property belonging to their wards or the estate.
Actual fraud is NOT necessary, the act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party which he represents. Intervention must be by virtue of public office held. The official who intervenes in contracts which have no connection with his office cannot commit the crime defined under this Article
CHAPTER FOUR: MALVERSATION OF PUBLICFUNDS OR PROPERTY (ARTS. 217-222) ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY — PRESUMPTION OF MALVERSATION Acts punished: 1. By appropriating public funds or property. 2. By taking or misappropriating the same. 3. By consenting, or through abandonment or negligence, permitting any other person to take such public funds or property. 4. By being otherwise guilty of the misappropriation or malversation of such funds or property. Common elements: 1. That the offender be a public officer. 2. That he had custody or control of funds or property by reason of the duties of his office 3. That those funds or property were public funds or property for which he was accountable 4. That he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them. Custody- means guarding or keeping safe; care
Funds or property must be received in official capacity. Hence, if the public officer had no authority to receive the money and he misappropriated the same, the crime is estafa, not malversation. The penalty for malversation is the same whether committed with malice or through negligence or imprudence. Nature of the duties of the public officer, not the name of the office, is controlling.
Malversation may be committed by private individuals in the following cases: 1. Those in conspiracy with public officers guilty of malversation 2. Those who are accessory or accomplice to a public officer 3. Custodian of public funds or property in whatever capacity 4. Depositary or administrator of public funds or property Presumption When demand is made to the accountable officer to account for the funds and property and the same is not forthcoming, this shall be
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CRIMINAL LAW BOOK TWO a prima facie evidence that he has put such missing funds or property to personal use. The return of the funds malversed is only mitigating, not exempting circumstance. Demand is NOT necessary in malversation. Damage to the government is also not necessary. Malversation is principally distinguished from estafa by: 1. The public or private character of the accused. 2. The nature of the funds. 3. The fact that conversion is not required in malversation. 4. The rule that there is no need of prior demand in malversation. 5. The absence of a requirement of damage in malversation. ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS
ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY Elements: 1. That the offender is a public officer; 2. That there is a public fund or property under his administration; 3. That such public fund or property has been appropriated by law or ordinance; 4. That he applies the same to a public use other than that for which such funds or property has been appropriated by law or ordinance.
The crime under this Article is also referred to as TECHNICAL MALVERSATION. Illegal Use of Public Funds or Property
Malversation
The offenders are accountable public officers in both crimes.
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. 4. That he fails to do so for a period of two months after such accounts should be rendered.
The offender does not The offender in certain derive any personal gain cases profits from the or profit. proceeds of the crime.
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.
Demand for accounting is NOT necessary. It is NOT necessary that there be misappropriation. If there is misappropriation, he would be liable also for malversation under Art. 217. ARTICLE 219 FAILURE OF 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; 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.
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The public fund or The public fund or property is applied to property is applied to the another public use. personal use and benefit of the offender or of another person.
ARTICLE 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
Elements: a. Public officer has government funds in his possession. b. He is under obligation to make payment from such funds. c. He fails to make the payment, maliciously. 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
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 222 OFFICERS INCLUDED IN THE PRECEDING PROVISIONS Private individuals who may be liable under Art. 217-221: 1. Private individuals who, in any capacity whatsoever, have charge of any national, provincial or municipal funds, revenue or property 2. Administrator, depository of funds or property attached, seized, or deposited by public authority even if such property belongs to a private individual (example: sheriffs and receivers) CHAPTER FIVE: INFIDELITY OF PUBLIC OFFICERS (ARTS. 223-230)
Liability of escaping prisoner: 1. If the fugitive is serving sentence by reason of final judgment, he is liable for evasion of the service of sentence under Art. 157. 2. If the fugitive is only a detention prisoner, he does not incur criminal liability. ARTICLE 225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER
SECTION ONE: DISOBEDIENCE, REFUSAL OF ASSISTANCE, AND MALTREATMENT OF PRISONERS ARTICLE 223 CONNIVING WITH OR CONSENTING TO EVASION Elements: 1. That the offender is a public officer; 2. That he had in his custody or charge, a prisoner, either detention prisoner or prisoner by final judgment; 3. That such prisoner escaped from his custody; 4. That he was in connivance with the prisoner in the latter’s escape. Classes of prisoner involved: 1. If the fugitive has been sentenced by final judgment to any penalty. 2. If the fugitive is held only as detention prisoner for any crime or violation of law or municipal ordinance. Leniency, laxity and release of detention prisoner who could not be delivered to the judicial authority within the time fixed by law, are not considered infidelity in the custody of prisoners. 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; 3. That such prisoner escapes through his negligence. Not every negligence or distraction of a
guard is penalized. It is only that positive carelessness that is short of deliberate non-performance of his duties as guard that is the gravamen of the crime of infidelity under Art. 224. The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation.
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; 4. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence.
Art. 225 is NOT applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested. ARTICLE 226 REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS
Elements: 1. That the offender be a public officer; Note: If the offender is a private individual, estafa is committed if there is damage caused. If there is no damage, the crime is malicious mischief. 2. That he removes, conceals or destroys documents or papers; “Papers” include checks, promissory notes, and paper money. 3. That the said documents or papers should have been entrusted to such public officer by reason of his office; 4. That damage, whether serious or not, to a
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CRIMINAL LAW BOOK TWO ARTICLE 229 REVELATION OF SECRETS BY AN OFFICER
third party or to the public interest should have been caused.
The document must be complete and one by which a right can be established or an obligation could be extinguished. The removal must be for an illicit purpose. The crime of removal of public document in breach of official trust is consummated upon its removal or secreting away from its usual place in the office and after the offender had gone out and locked the door, it being immaterial whether he has or has not actually accomplished the illicit purpose for which he removed said document.
Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service.
Acts punished: 1. By revealing any secret known to the offending public officer by reason of his official capacity. 2. By delivering wrongfully papers or copies of papers of which he may have charge and which should not be published. Elements of No. 1: 1. That the offender is a public officer; 2. That he knows of the secret by reason of his official capacity; 3. That he reveals such secret without authority or justifiable reasons; 4. That damage, great or small, be caused to public interest.
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; 4. That he breaks the seals or permits them to be broken.
Damage or intent to damage is not necessary. ARTICLE 228 OPENING OF CLOSED DOCUMENTS
Elements: 1. That the offender is a public officer. 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. 4. That he does not have the proper authority. The closed document must be entrusted to the custody of the accused by reason of his office. If in opening closed papers or objects, the public officer broke the seal, the offense would be breaking seal under Art. 227 and not the crime of opening a closed document, because the offender must be a public officer “not included in the preceding article.”
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Sec 3 (k) of RA 3019 is violated if there is no damage caused in revealing the secret. This article punishes minor official betrayals, infidelities of little consequence, affecting usually the administration of justice, executive or official duties, or the general interest of the public order. Secrets must affect public interests, if not, the revelation would constitute no crime at all.
Elements of No. 2: 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
“Charge” here means control or custody. If the public officer is merely entrusted with the papers but not with the custody, he is not liable under this provision. Damage is an element of the offenses defined in Art. 229. A higher penalty is provided if serious damage is caused otherwise a lower penalty is imposed. This indicates that the lesser penalty refers to causing damage which is not serious.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Revelation of Secrets by an Officer The papers contain secrets and therefore should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person.
Elements: 1. That the offender is a public officer; 2. That he knows of the secrets of a private individual by reason of his office; 3. That he reveals such secrets without authority or justifiable reason.
ARTICLE 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER
The papers do not contain secrets but their removal is for an illicit purpose.
ARTICLE 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL
duty bound to obey.
Infidelity in the Custody of Document/Papers by Removing the Same
If the offender is a lawyer, the crime under Article 209 is committed. If the offender is a private individual, the crime under Article 290 or 291 is committed. Revelation to one person is necessary and sufficient, for public revelation is not required. It is NOT necessary that damage is suffered by the private individual. The reason for this provision is to uphold faith and trust in public service.
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; 4. That his superior disapproves the suspension of the execution of the order; 5. That the offender disobeys his superior despite the disapproval of the suspension.
This article does NOT apply 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 lends his cooperation towards the administration of justice or other public service. 3. That the offender fails to do so maliciously.
There must be damage to the public interest or to a third party. If the offender is a private individual, he may be held liable for contempt.
CHAPTER SIX: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS (ARTS. 231-245)
ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE
SECTION ONE: DISOBEDIENCE, REFUSAL OF ASSISTANCE AND MALTREATMENT OF PRISONERS
Elements: 1. That the offender is elected by popular election to a public office; 2. That he refuses to be sworn in or to discharge the duties of said office; and 3. That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office.
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 a 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 legal formalities; 4. That the offender without any legal justification openly refuses to execute said judgment, decision or order, which he is
ARTICLE 235 MALTREATMENT OF PRISONERS Elements: 1. That the offender is a public officer or employee; 2. That he has under his charge a prisoner convicted by final judgment or a detention prisoner; 3. That he maltreats such prisoner in either
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CRIMINAL LAW BOOK TWO 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.
Qualifying circumstance – when the abandonment of the office has for its purpose to evade the discharge of the duties of preventing, prosecuting or punishing any of the crimes falling within Title 1 and Chapter 1 Title 3 of Book 2 of this Code
The public officer or employee must have actual charge of the prisoner. Offender may also be held liable for physical injuries or damage caused. There is no complex crime of maltreatment of prisoners with serious or less serious physical injuries, as defined in Art. 48.
SECTION TWO: ANTICIPATION, PROLONGATION AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE 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; 4. That he has not taken his oath of office and/or given the bond required by law. ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS Elements: 1. That the offender is holding a public office; 2. That the period provided by law, regulations or special provisions for holding such office, has already expired; 3. That he continues to exercise the duties and powers of such office. ARTICLE 238 ABANDONMENT OF OFFICE Elements: 1. That the offender is a public officer;
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2. That he formally resigns from his position; There must be written or formal resignation 3. That his resignation has not yet been accepted; 4. That he abandons his office to the detriment of the public service.
Abandonment of Office (Art. 238) Committed by public officer
Negligence and Tolerance in Prosecution of Offenses (Art. 208)
any
Committed only by public officers who have the duty to institute prosecution for the punishment of violations of the law
The public officer abandons his office to evade the discharge of his duty.
The public officer does not abandon his office but he fails to prosecute an offense by dereliction of duty or by malicious tolerance of the commission of offenses.
SECTION THREE: USURPATION OF POWERS AND UNLAWFUL APPOINTMENT ARTICLE 239 USURPATION OF LEGISLATIVE POWER Elements: 1. That the offender is an executive or judicial officer; 2. That he: a. Makes general rules or regulations beyond the scope of his authority or b. Attempts to repeal a law or c. Suspends the execution thereof. ARTICLE 240 USURPATION OF EXECUTIVE FUNCTIONS Elements: 1. That the offender is a judge; 2. That he: a. Assumes a power pertaining to the executive authorities; or b. Obstructs the executive authorities in the lawful exercise of their powers.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 241 USURPATION OF JUDICIAL FUNCTIONS
SECTION FOUR: ABUSES AGAINST CHASTITY
Elements: 1. That the offender is an officer of the executive branch of the Government; 2. That he: a. Assumes judicial powers; or b. Obstructs the execution of any order or decision rendered by any judge within his jurisdiction.
ARTICLE 245 ABUSES AGAINST CHASTITY – PENALTIES
ARTICLE 242 DISOBEYING REQUEST FOR DISQUALIFICATION Elements: 1. That the offender is a public officer; 2. That a proceeding is pending before such public officer; 3. That there is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; 4. That he has been lawfully required to refrain from continuing the proceeding; 5. That he continues the proceeding. ARTICLE 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY Elements: 1. That the offender is an executive officer; 2. That he addresses any order or suggestion to any judicial authority; 3. That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. ARTICLE 244 UNLAWFUL APPOINTMENTS Elements: 1. That the offender is a public officer; 2. That he nominates or appoints a person to a public office; 3. That such person lacks the legal qualifications therefor; 4. That the offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.
Ways of committing abuses against chastity: 1. By soliciting or making immoral or indecent advances to a woman interested in the matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer. 2. By soliciting or making immoral or indecent advances to a woman under the offender’s custody. 3. By soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer. Elements: 1. That the offender is a public officer; 2. That he solicits or makes immoral or indecent advances to a woman; 3. That such woman must be — a. Interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or b. Under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or c. The wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.
The mother of the person in the custody of the offender is NOT included. Solicit means to propose earnestly and persistently something unchaste and immoral to a woman. This crime is consummated by mere proposal. If the offender succeeds in committing a crime against chastity, the solicitation and advances are considered merely as preparatory acts. Proof of solicitation is NOT necessary when there is sexual intercourse.
Note: See also RA 7877, the “Anti-Sexual Harrassment Act of 1995” which applies where the accused demands, requests or otherwise requires any sexual favors from the victim in a
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or
training-related
TITLE EIGHT: CRIMES AGAINST PERSONS
SECTION ONE: PARRICIDE, MURDER, HOMICIDE
ARTICLE 246 PARRICIDE
Elements: 1. That a person is killed; 2. That the deceased is killed by the accused; and 3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse, of the accused. Cases of parricide when the penalty shall NOT be reclusion perpetua to death: 1. Parricide through negligence (Art. 365). 2. Parricide by mistake (Art. 249). 3. Parricide under exceptional circumstances (Art. 247).
The child should not be less than 3 days old; otherwise the crime is infanticide (Art. 255) Relationship of the offender with the victim is the essential element of the crime. Hence: If a person wanted to kill a stranger but by mistake killed his own father, he will be held liable for parricide BUT Art. 49 will apply as regards the proper penalty to be imposed, that is, the penalty for the lesser offense in its maximum period. A stranger who cooperates and takes part in the commission of the crime of parricide is not guilty of parricide but only of homicide or murder, as the case may be. The key element in parricide is the relationship of the offender with the victim. (People vs. Dalag, G.R. No. 129895, April 30, 2003) The relationship between the offender and the victim must be alleged.
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The law does NOT require knowledge of relationship, thus, a person who killed another not knowing that the latter was his son will still be held guilty of parricide. The fact that the husband only intended to maltreat his wife does not exempt him
from liability for resulting and more serious crime committed. (People vs. Tomotorgo, 136 SCRA 238, April 30, 1985) Legitimacy need NOT be alleged when the accused killed his (1)father, (2) mother or (3) child. However with respect to the other ascendant, descendant or spouse, the relationship MUST be legitimate. An adopted child is considered as a legitimate child BUT since the relationship is exclusive between the adopter and the adopted child, killing the parents of the adopter is not considered parricide of “other (legitimate) ascendants”. ARTICLE 247 DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES
Elements: 1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person; 2. That he or she kills any or both of them, or inflicts upon any or both of them any serious physical injury, in the act or immediately thereafter; and 3. That he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of others.
This article does NOT define and penalize a felony. It provides for the imposition of the penalty of destierro rather than the ordinary penalty for parricide. The requisites of Art. 247 must be established by the evidence of the defense and accused cannot enter into a conditional plea of guilty and be sentenced with destierro since the prosecution will have to charge the defendant with parricide and/or homicide, in case death results, or of serious physical injuries in other cases. For Art. 247 to apply, the offender must prove that he actually surprised his wife and (her paramour) in flagrante delicto, and that he killed the man during or immediately thereafter. Evidence of the victim’s promiscuity, is inconsequential to the killing. (People vs. Puedan, G.R. No. 139576, September 2, 2002) Sexual intercourse does NOT include preparatory acts. “Immediately thereafter” - the discovery,
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
the escape, the pursuit and the killing must all form part of one continuous act (U.S. vs. Vargas, et al., 2 Phil 194). The accused must be a legally married person. The parent need NOT be legitimate. Applicable only when daughter is single. The wife is entitled to the benefits of Art. 247 (People vs. Corazon, 59 Phil 568). No liability for less serious or slight physical injuries suffered by third persons during the commission of the act under this article
Justification for Art. 247: The law considers the spouse or parent as acting in a justified burst of passion.
Rules for the application of the circumstances which qualify the killing to murder: 1. That murder will exist with only one of the circumstances described in Art. 248. 2. Where there are more than one qualifying circumstance present, only one will qualify the killing, with the rest to be considered as generic aggravating circumstances. 3. That when the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. 4. That any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information.
ARTICLE 248 MURDER Murder – unlawful killing of any person which is not parricide or infanticide, provided that any of the following circumstances is present: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employs means to weaken the defense, or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means of inundation, fire, poison, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; 5. With evident premeditation; or 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (As amended by RA No. 7659) Elements: 1. That a person was killed; 2. That the accused killed him; 3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248; and 4. That the killing is not parricide or infanticide.
Dismemberment of a dead body is one manner of outraging or scoffing at the corpse of the victim and qualifies the killing to murder (People vs. Guillermo, G.R. No. 147786, January 20, 2004) Outraging (physical act) – means to commit an extremely vicious or deeply insulting act. Scoffing (verbal act) – means to jeer, and implies a showing of irreverence. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (R.A. No. 8294, Sec. 1) Treachery and Evident Premeditation are inherent in murder by means of Poison BUT the Use of Poison is not inherent in murder. It only becomes inherent if there is an intent to kill and the poison is used as a means to kill. ARTICLE 249 HOMICIDE
Homicide – The unlawful killing of any person, which is neither parricide, murder nor infanticide. Intent to kill is conclusively presumed when death results; evidence of intent to kill is important only in attempted or frustrated homicide. Intent to kill is usually shown by the kind of weapon used and part of the body wounded. Elements: 1. That a person was killed; 2. That the accused killed him without any justifying circumstance; 3. That the accused had the intention to kill, which is presumed; and 4. That the killing was not attended by any of the qualifying circumstances of murder, or
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CRIMINAL LAW BOOK TWO by that of parricide or infanticide. The use of an unlicensed firearm is an aggravating circumstance in homicide and is NOT to be considered as a separate offense. Corpus Delicti- actual commission of the crime charged and not the body of the person killed. Accidental Homicide – is the death of a person brought about by a lawful act performed with proper care and skill and without homicidal intent. E.g. death in boxing bout. There is NO FELONY committed in this case. In all crimes against persons in which the death of the victim is an element of an offense, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim. When there is no way of determining how the attack was committed, treachery cannot be considered and the accused is guilty of homicide only. (People vs. Dela Cruz, G.R. No. 152176, October 1, 2003) There is no such crime as frustrated homicide through imprudence. ARTICLE 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER, OR HOMICIDE
Courts may impose a penalty two degrees lower for frustrated parricide, murder or homicide. Courts may impose a penalty three degrees lower for attempted parricide, murder or homicide. This provision is permissive NOT MANDATORY. An attempt on or conspiracy against the life of the Chief Executive, member of his family, any member of his cabinet or members of latter’s family is punishable by death. (PD 1110-A)
ARTICLE 251 DEATH CAUSED IN A TUMULTUOUS AFFRAY Elements: 1. That there be several persons; 2. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally, otherwise, they may be held liable as co-conspirators; 3. That these several persons quarreled and
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assaulted one another in a confused and tumultuous manner; 4. That someone was killed in the course of the affray; 5. That it cannot be ascertained who actually killed the deceased; and 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. Persons liable: 1. The person or persons who inflicted the serious physical injuries are liable. 2. If it is not known who inflicted the serious physical injuries on the deceased – ALL the persons who used violence upon the person of the victim are liable, but with lesser liability. Tumultuous affray – a melee or free-for-all, where several persons not comprising definite or identifiable groups attack one another in a confused and disorganized manner resulting in the death or injury of one or some of them. Tumultuous affray exists when at least four persons took part. When the quarrel is between a distinct group of individuals, one of whom was sufficiently identified as the principal author of the killing, as against a common, particular victim, it is not a "tumultuous affray" within the meaning of Art. 251 of the RPC. (People vs. Unlagada, G.R. No. 141080, September 17, 2002) In such a case, the crime committed is homicide under Art. 249. The victim may be a participant or nonparticipant thereof. ARTICLE 252 PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY Elements: 1. That there is a tumultuous affray as referred to in Art. 251; 2. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only; 3. That the person responsible therefor cannot be identified; and 4. That all those who appear to have used violence upon the person of the offended party are known.
Injured/victim must be a participant in the affray Only those who used violence are punished, because if the one who caused
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS the physical injuries is known, he will be liable for the physical injuries actually committed, and not under this article. ARTICLE 253 GIVING ASSISTANCE TO SUICIDE Acts punished: 1. By assisting another to commit suicide, whether the suicide is consummated or not; 2. By lending his assistance to another to commit suicide to the extent of doing the killing himself.
A person who attempts to commit suicide is not criminally liable even if an innocent third person or property is hurt or damaged. The penalty for giving assistance to suicide if the offender is the father, mother, child or spouse of the one committing suicide is the same since the law does not distinguish.
Euthanasia or “Mercy-Killing” - is a practice of painlessly putting to death a person suffering from some incurable disease. A doctor who resorted to euthanasia may be held liable for murder under Art. 248 since euthanasia is not giving assistance to suicide BUT doing the killing himself. In euthanasia, the person killed does not want to die. ARTICLE 254 DISCHARGE OF FIREARMS Elements: 1. That the offender discharges a firearm against or at another person; and 2. That the offender has no intention to kill that person.
It is not applicable to police officers in the performance of their duties. The PURPOSE of the offender is only to intimidate or frighten the offended party. If in the discharge of firearm, the offended party is hit and wounded, there is a complex crime of discharge of firearm with serious or less serious physical injuries; BUT if only slight physical injuries were inflicted, there is no complex crime (BUT two separate crimes) since such physical injuries constitutes a light felony. The crime is discharge of firearm even if the gun was not pointed at the offended party when it was fired, as long as it was initially aimed by the accused at or against
the offended party. If the firearm was not aimed against or at another person, the crime committed is alarms and scandals. No offense for Illegal discharge of firearms through imprudence SECTION TWO: INFANTICIDE AND ABORTION ARTICLE 255 INFANTICIDE
Infanticide – is the killing of any child less than three days of age, whether the killer is the parent or grandparent, any other relative of the child, or a stranger. Elements: 1. That a child was killed; 2. That the deceased child was less than three days (72 hours) of age; and 3. That the accused killed the said child.
No crime of infanticide is committed if the child has been dead or if, although born alive, it could not sustain an independent life when it was killed. Father or mother or other legitimate ascendant who kills a child less than three days old – to suffer penalty for parricide. Other person who kills or who cooperates with the mother or maternal grandparent in killing a child less than three days old will suffer the penalty for murder. Only the mother and the maternal grandparents of the child are entitled to the mitigating circumstance of concealing the dishonor. The delinquent mother who claims concealing dishonor must be of good character. Treachery is inherent in infanticide. ARTICLE 256 INTENTIONAL ABORTION
Intentional abortion - willful killing of the fetus in the uterus or the violent expulsion of the fetus from the maternal womb which results in the death of the fetus. Ways of Committing Intentional Abortion 1. By using any violence upon the person of the pregnant woman; 2. By acting, without using violence and without the consent of the woman (by administering drugs or beverages upon such pregnant woman without her consent; and 3. By acting, with the consent of the pregnant
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CRIMINAL LAW BOOK TWO woman, by beverages.
administering
drugs
or
Elements: 1. That there is a pregnant woman; 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; and 4. That the abortion is intended. Person liable in Intentional Abortion: 1. The person who intentionally caused the abortion under Art. 256; 2. The pregnant woman if she consented under Art. 258. As long as the fetus dies as a result of the violence used or the drugs administered, the crime of abortion exists, even if the fetus is over or less than 6 months, or is full term. If the fetus could sustain an independent life (the fetus must have an intrauterine life of not less than 7 months) after its separation from the maternal womb, and it is killed, the crime is infanticide, not abortion. Fetus must die in consummated abortion. If it is intentional abortion and the fetus does not die, it is frustrated intentional abortion when all the acts of execution have been performed by the offender. If the abortion is not intended and the fetus does not die, in spite of the violence intentionally exerted, the crime may only be physical injuries. There is no crime of frustrated unintentional abortion, in view of the lack of intention to cause an abortion. If there is no intention to cause abortion and no violence, there is no abortion of any kind. ARTICLE 257 UNINTENTIONAL ABORTION Elements: 1. That there is a pregnant woman; 2. That violence is used upon such pregnant woman without intending an abortion; 3. That the violence is intentionally exerted; and 4. That as a result of the violence, the fetus dies, either in the womb or after having been expelled therefrom.
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Violence refers to actual physical force.
CONFLICTING VIEWS: The offender must have known of the woman’s pregnancy (People v. Carnaso, C.A., 61 OG 3623) However, in US v. Jeffrey (GR No. 5597, March 5, 1910), it was ruled that knowledge of such pregnancy was not necessary. In the case of People vs. Salufrania (159 SCRA 401 [1988]), the Supreme Court ruled that despite knowledge of the accused of his wife’s pregnancy, the intent to cause the abortion has not been sufficiently established, thus, the accused is only liable for the complex crime of parricide (for the death of wife) with unintentional abortion (for the death of the fetus in the mother’s womb). If grave threats were made to cause abortion, a complex crime of grave threats and intentional abortion is committed. If light threats were made, two separate crimes of light threats and intentional abortion are committed. There is a complex crime of homicide with unintentional abortion. (People v. Genoves, 33 O.G. 2201). There is complex crime of parricide with abortion. (People v. Villanueva, 242 SCRA 47 [1995]). ARTICLE 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR HER PARENTS
Elements: 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; and 3. That the abortion is caused by – a. The pregnant woman herself; b. Any other person, with her consent; or c. Any of her parents, with her consent, for the purpose of concealing her dishonor.
Under a and c above, the woman is liable under Art. 258; while the third person under b is liable under Art. 256. If the purpose is other than to conceal the woman’s dishonor, abortion by any of her parents falls under Art. 256. Liability of the pregnant woman is mitigated if her (not including the maternal grandparents’) purpose is to conceal her dishonor.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE IN DISPENSING OF ABORTIVES Elements: 1. That there is a pregnant woman who has suffered an abortion; 2. That the abortion is intended; 3. That the offender, who must be a physician or midwife, causes, or assists in causing the abortion; and 4. That said physician or midwife takes advantage of his or her scientific knowledge or skill.
If abortion was not intended or was a result of a mistake, no crime is committed. If the woman is not really pregnant, an impossible crime is committed.
As to PHARMACISTS, the ELEMENTS are: 1. That the offender is a pharmacist; 2. That there is no proper prescription from a physician; and 3. That the offender dispenses any abortive.
As to pharmacists, crime is consummated by dispensing abortive without proper prescription from a physician. It is not necessary that the abortive was actually used. It is immaterial that the pharmacist knows that the abortive would be used for abortion. Otherwise, he shall be liable as an accomplice in the crime of abortion should abortion result from the use thereof.
of two or more seconds of lawful age on each side, who make the selection of arms and fix all other conditions of the fight. Seconds – the persons who make the selection of the arms and fix the other conditions of the fight Self defense cannot be invoked if there was a pre-concerted agreement to fight, but if the attack was made by the accused against his opponent before the appointed place and time, there is an unlawful aggression, hence selfdefense can be claimed. Note: If death results, penalty is the same as that for homicide. ARTICLE 261 CHALLENGING TO A DUEL Acts Punished 1. By challenging another to a duel; 2. By inciting another to give or accept a challenge to a duel; and 3. By scoffing or decrying another publicly for having refused to accept a challenge to fight a duel. Persons liable: 1. Challenger 2. Instigators Note: A challenge to fight, without contemplating a duel, is not challenging to a duel. The person making the challenge must have in mind a formal combat to be concerted between him and the one challenged in the presence of two or more seconds.
SECTION THREE: DUEL ARTICLE 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL Acts punished: 1. By killing one’s adversary in a duel; 2. By inflicting upon such adversary physical injuries; and 3. By making a combat although no physical injuries have been inflicted. Persons liable: 1. The person who killed or inflicted physical injuries upon his adversary or both combatants in any other case, as principals. 2. The seconds, as accomplices. Duel – a formal or regular combat previously concerted between two parties in the presence
CHAPTER TWO: PHYSICAL INJURIES (ARTS. 262-266) ARTICLE 262 MUTILATION Two kinds: 1. By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction (castration). Elements of the first kind: a. That there be castration, that is, mutilation of organs necessary for generation, such as penis or ovarium; and b. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction.
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CRIMINAL LAW BOOK TWO Note: Intentionally depriving the victim of the reproductive organ does not necessarily involve the cutting off of the organ or any part thereof. It suffices that it is rendered useless. 2. By intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of the body (mayhem).
The law looks NOT only to the result but also to the intention or purpose of the act. Mutilation is always intentional. The intention of the offender to deprive the victim of the body part whether by castration or mayhem is essential and must thus exist in either case. Cruelty, as understood in Art 14 (21), is inherent in mutilation and, in fact, that is the only felony where the said circumstance is an integral part and is absorbed therein. If the victim dies, the crime is murder qualified by cruelty, but the offender may still claim and prove that he had no intention to commit so grave a wrong.
was habitually engaged for more than 90 days, in consequence of the physical injuries inflicted. 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. 30 days < X ≤ 90 days
ARTICLE 263 SERIOUS PHYSICAL INJURIES How committed: 1. By wounding; 2. By beating; 3. By assaulting; or 4. By administering injurious substance. Serious physical injuries 1. When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted; 2. When the injured person – a. Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg; b. Loses the use of any such member; or c. Becomes incapacitated for the work in which he was therefore habitually engaged, in consequence of the physical injuries inflicted. 3. When the person injured a. Becomes deformed, or b. Loses any other member of his body, or c. Loses the use thereof, or d. Becomes ill or incapacitated for the performance of the work in which he
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This crime is considered a formal crime since it is punished based on the gravity of the injuries inflicted. What is penalized in the crime of physical injuries is the result. Thus, it is always consummated and cannot be committed in the attempted or frustrated stage. If a robbery is committed and the injured person suffers that enumerated under numbers 3 and 4, the crime/s committed is/are: Special complex crime of robbery with serious physical injuries – if the injured person is not responsible for the robbery. Separate crimes of robbery and serious physical injuries – if the injured person is a robber. There must be NO INTENT TO KILL; otherwise, the crime would be attempted or frustrated homicide, parricide or murder, as the case maybe. Where the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of that length of that period; otherwise, the offense shall only be slight physical injuries. Serious physical injuries may be committed by reckless imprudence or by simple imprudence or negligence under Art. 365 in relation to Art. 263. Impotence means inability to copulate. Insanity means loss of reason or will; failure to determine right from wrong; failure to perceive things as they are. Lessening of efficiency due to injury is not incapacity.
In paragraphs 2 and 3, the offended party must have a vocation or work at the time of the injury. Work includes studies or preparation for a profession. Requisites of deformity: 1. Physical ugliness; 2. Permanent and definite abnormality; and 3. Must be conspicuous and visible.
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The injury to cause deformity is one that cannot be replaced by nature. If the scar is usually covered by the dress of clothes, it would not be conspicuous and visible Medical Attendance is not important in serious physical injuries.
Paragraph 4 speaks of incapacity for any kind of labor. Note: Hospitalization for more than 30 days may mean either illness or incapacity for labor for more than 30 days. Physical Injuries The offender physical injuries.
Attempted or Frustrated Homicide
inflicts Attempted homicide may be committed, even if no physical injuries are inflicted.
Offender has no intent to The offender has an kill the offended party. intent to kill the offended party.
Qualifying Circumstances: 1. Offense committed against persons enumerated in the crime of parricide. 2. With the attendance of circumstance which qualify the crime to murder.
HOWEVER, the “qualified penalties” are NOT applicable to parents who inflict serious physical injuries upon their children by excessive chastisement. ARTICLE 264 ADMINISTERING INJURIOUS SUBSTANCE OR BEVERAGES
Elements: 1. That the offender inflicted upon another any serious physical injury; 2. That it was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or credulity; and 3. That he had no intent to kill.
It is frustrated murder if there was intent to kill. Administering injurious substance means introducing into the body the substance. It does not apply when the physical injuries that result are less serious or light, they will be treated under Art 265 or 266, as the case may be.
ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES Elements: 1. The offended party is incapacitated for labor for 10 days or more but not more than 30 days, or needs attendance for the same period; and 10 days ≤ X ≤ 30 days 2. The physical injuries must not be those described in the preceding articles. Qualified Less Serious Physical Injuries: 1. A fine not exceeding P500, in addition to arresto mayor, shall be imposed for less serious physical injuries when: a. There is manifest intent to insult or offend the injured person; or b. There are circumstances adding ignominy to the offense. 2. A higher penalty is imposed when the victim is either: a. The offender’s parent, ascendant, guardian, curator or teacher; or b. Persons of rank or persons in authority, provided the crime is not direct assault. Physical Injuries
Mutilation
No SPECIAL INTENTION to clip off some part of the body so as to deprive he offended party of such part
There is a SPECIAL INTENTION to clip off some part of the body so as to deprive him of such part.
The law includes 2 subdivisions, to wit: 1. The inability for work; and 2. The necessity for medical attendance
Therefore, although the wound required medical attendance for only 2 days, yet, if the injured party was prevented from attending to his ordinary labor for a period of 29 days, the physical injuries sustained are denominated as less serious. In the absence of proof as to the period of the offended party’s incapacity for labor or of required medical attendance, offense committed is only slight physical injuries. ARTICLE 266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT
Kinds: 1. Physical injuries which incapacitated the offended party from one to nine days, or required medical attendance during the same period; 2. Physical injuries which did not prevent the
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CRIMINAL LAW BOOK TWO offended party from engaging in his habitual work or which did not require medical attendance; and 3. Ill-treatment of another by deed without causing any injury. 3.
When there is no evidence of actual injury, it is only slight physical injuries. Supervening event converting the crime into serious physical injuries after the filing of the information for slight physical injuries can still be the subject of a new charge
If physical injuries were inflicted with an intent to insult or humiliate the injured person, the intent to insult or humiliate shall be: Considered as an aggravating circumstance of ignominy in case of serious physical injuries Considered in increasing the penalty and qualifying the crime in case of less serious physical injuries Separate crime of slander by deed in case of slight physical injuries.
4.
5.
6.
ANTI-HAZING LAW (R.A. No. 8049)
7.
Hazing – is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish, and similar activities or otherwise subjecting him to physical or psychological suffering or injury.
Allowed Initiation Rites (Section 2) Those that have prior written notice to the school authorities or head of organization 7 days before the conduct of such initiation. The written notice shall contain the following: 1. Period of the initiation activities which shall not exceed 3 days 2. Names of those to be subjected to such activities 3. Undertaking that no physical violence be employed by anybody What acts are punishable: All acts so long as it caused physical injuries at the very least. Persons liable: 1. Officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals – if the person subjected to hazing suffers any physical injury or dies as a result thereof. 2. Owner of the place where the hazing is
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conducted shall be liable as an accomplice – when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. Parents shall be liable as principals – when they have actual knowledge of the hazing conducted in the home of one of the officers or members of the fraternity, sorority or organization, but failed to prevent the same. School authorities and faculty members shall be liable as accomplices - when they consent to the hazing or have actual knowledge thereof, but failed to take any action to prevent the same from occurring. Officers, former officers or alumni of the organization, group, fraternity or sorority shall be liable as principals - if they actually planned the hazing, although not present when the acts constituting the hazing were committed. Officers or members of the organization, group, fraternity or sorority shall be liable as principals - if they knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat. The fraternity or sorority’s adviser shall be liable as principal - if he was present when the acts constituting the hazing were committed and failed to take any action to prevent the same. The presence of “any person” (i.e. whether or not member of the fraternity/sorority) during the hazing is prima facie evidence of participation therein as a principal UNLESS he prevented the commission of the prohibited acts. The mitigating circumstance that there was no intention to commit so grave a wrong shall NOT APPLY. (Sec. 4, par. e, R.A. No. 8049) CHAPTER THREE: RAPE (ARTS. 266-A – 266-B) ARTICLE 266-A THE ANTI-RAPE LAW (RA 8353)
Classification of Rape 1. Traditional Rape under Art. 335- carnal knowledge with a woman against her will; in this case, the offender is always a man and the offended party is always a woman. 2. Sexual Assault under R.A. 8353- this is committed when the offender inserts his penis to another person’s mouth or anal orifice or by inserting an instrument or object into the genital or anal orifice of another person. The offender and the
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS offender can either be a man or a woman in the case of the insertion of any instrument or object. How rape is committed: 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a. Through force, threat or intimidation; b. When the offended party is deprived of reason or otherwise unconscious; c. By means of fraudulent machinations or grave abuse of authority; d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
c.
Elements: a. That the offender is a man; b. That the offender had carnal knowledge of a woman; c. That such act is accomplished under any of the following circumstances: i. By using force or intimidation, or ii. When the woman is deprived of reason or otherwise unconscious, or iii. By means of fraudulent machination or grave abuse of authority, or iv. When the woman is under 12 years of age or demented. Notes: The offender must not have known that the victim is demented, otherwise qualified rape is committed. Circumstance (iv) does not only pertain to chronological age but also to mental age (People vs. Atento, 196 SCRA 357, 1991) 2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice of another person, or any instrument or object, into the genital or anal orifice of another person. Elements: a. That the offender commits an act of sexual assault; b. That the act of sexual assault is committed by any of the following means: i. By inserting his penis into another person’s mouth or anal orifice; ii. By inserting any instrument or
object into the genital or anal orifice of another person. That the act of sexual assault is accomplished under any of the circumstances enumerated under the first act of committing rape.
Under R.A. 8353, the crime of rape can now be committed by a male or a female. To be CONSUMMATED, it is not essential that there be a complete penetration of the female organ, neither is it essential that there be a rupture of the hymen. However, there must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for the accused to be convicted of consummated rape. Absent of any showing of the slightest penetration of the female organ, it can only be attempted rape, if not acts of lasciviousness. (People vs. Campuhan, 329 SCRA 270 [2000]) For a charge for rape by sexual assault with the use of one’s fingers or any other object to be consummated, there should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. (People v. Dela Cruz, GR No. 180501, December 24, 2008) There is NO crime of FRUSTRATED RAPE. The slightest penetration or mere touching of the genitals consummates the crime of rape. There is ATTEMPTED RAPE when there is no penetration of the female organ because not all the acts of execution were performed. However, there must be an intention to have carnal knowledge of the woman against her will. Acknowledgment of the consummated act is not considered giving of consent. In Statutory Rape, the offender’s knowledge of the victim’s age is IMMATERIAL. Force employed against the victim of rape need not be of such character as could not be resisted. It is enough that the force used is sufficient to consummate the culprit’s purpose of copulating with the victim. If the woman contributed in some way to the consummation of the act, this may constitute an offense other than rape. Intimidation includes the moral kind. Having sex with a deaf-mute is not rape in
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the absence of proof that she is imbecile. There is NO crime of rape if liquor or drug is used to induce the victim’s consent so as to incite her passion and it did not deprive her of her will power. When the girl is under 12 years of age, rape is committed although she consented to the sexual act or even if the girl is a prostitute. The law does not consider that kind of consent as voluntary, as the offended party under 12 years of age cannot have a will of her own. If the offended woman is below 12 years of age, it is always rape. Her mental, and not only the chronological age is considered. Thus, it is still rape if the woman is 13 years old with a mental capacity of a 5 year old. Furthermore, the amendatory law has added the more glaring and unfortunate situation of a demented girl. Example: 31 year old mental retardate with the mental capacity of a 5-year-old (People vs. Manlapaz, G.R. No. L-41819, Feb. 28, 1978). Rape Shield Rule - Character of the woman is immaterial in rape. It is no defense that the woman is of unchaste character, provided the illicit relations were committed with force and violence, etc. Rape may be committed using the fingers under the second act, but the ‘instrument or object’ other than the penis must be inserted into the genital or anal orifice of another person. (Obaña v. Hon. Soriano, G.R. No. 60353. Aug. 21, 2001) A rape victim cannot invoke self-defense when he/she kills the rapist unless there is a threat on his/her life. Unlike before when rape is still a crime against chastity, the victim can invoke self-defense under the same circumstance since honor is equated to life. ARTICLE 266-B QUALIFIED RAPE
Rape under both acts of committing it is qualified by the following: Note: Rape is punishable by death if it falls under any of 4-14 circumstances. 1. When rape is committed with the use of a deadly weapon or by two or more persons; 2. When by reason or occasion of rape, the victim has become insane; 3. When the rape is attempted and a homicide is committed by reason of or on the occasion of rape (special complex crime); 4. When by reason of or on occasion of rape, homicide is committed (special complex
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crime); 5. When the victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim; The statement that the victim “is the minor daughter” of the offender is not enough. It is essential that the information must state the exact age of the victim at the time of the commission of the crime. (People v. Baniguid, G.R. No. 137714, Sept. 8, 2000) The relationship of stepdaughter and stepfather presupposes a legitimate relationship between the victim’s mother and the offender, i.e., they were married after the marriage of the victim’s mother to her father was dissolved. (People vs. Melendres, G.R. 133999-4001, Aug. 31, 2000). 6. When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; 7. When the rape is committed in full view of the spouse, parent, or any of the children or other relatives within the third civil degree of consanguinity; 8. When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; 9. When the victim is a child below 7 years old; 10. When the offender knows that he is afflicted with HIV/AIDS or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 11. When committed by any member of the AFP or para-military units thereof of the PNP or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; 12. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 13. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; 14. When the offender knew of the mental disability, emotional disorder and/or physical disability of the offended party at the time of the commission of the crime. When the homicide is committed NOT by reason or on the occasion of rape,
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there is no special complex crime of rape with homicide. Moral ascendancy or influence, held to substitute for the element of physical force or intimidation. ARTICLE 266-C EFFECT OF PARDON
Effects of pardon: 1. The subsequent valid marriage between the offender and the offended party shall extinguish: a. The criminal action or b. The penalty already imposed. 2. The subsequent forgiveness of the wife to the legal husband shall extinguish the criminal action or the penalty, PROVIDED that the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. This is an exception to the rule that forgiveness by the offended party shall not extinguish the penal action in crimes against person. Since rape is now a crime against persons, marriage extinguishes that penal action only as to the principal, i.e. the husband, but not as to the accomplices and accessories. The principle does not apply where MULTIPLE RAPE was committed because while marriage with one defendant, extinguishes the criminal liability, its benefits cannot be extended to the acts committed by the others of which he is a co-principal. Prior to RA No. 8353, a husband cannot be guilty of rape committed upon his wife because of the matrimonial consent which she gave when she assumed the marriage relation. However, under Art 266-C of RA No. 8353, a husband may be guilty of rape of his wife if it is the legal husband who is the offender. ARTICLE 266-D PRESUMPTIONS Evidence which may be accepted in the prosecution of rape: 1. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or 2. Where the offended party is so situated as to render him/her incapable of giving his/her consent
TITLE NINE: CRIMES AGAINST PERSONAL LIBERTY AND SECURITY SECTION ONE: ILLEGAL DETENTION ARTICLE 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION Elements: (PICK) 1. That the offender is a private individual who is not any of the parents of the victim nor a female; (People vs. Ponce G.R. No. 171653 April 24, 2007); 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty; 3. That the act of detention or kidnapping must be illegal; 4. That in the commission of the offense, any of the following circumstances is present: a. That the kidnapping or detention lasts for more than 3 days; or b. That it is committed simulating public authority; or c. That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or d. That the person kidnapped or detained is a minor, female, or a public officer (People vs. Mercado, G.R. No. L-65152, August 30, 1984). It is NOT necessary that the victim be placed in an enclosure. It may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty. The original Spanish version of Article 267 of the Revised Penal Code used the term "lock up" (encarcerar) rather than "kidnap" (sequestrator or raptor) which "includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time." (People v. Baldogo G.R. Nos. 128106-07 January 24, 2003) The crime is committed when the offender left the child in the house of another, where the child had freedom of locomotion but not the freedom to leave it at will because of his tender age. (People v. Acosta, 60 O.G. 6999) The detention is illegal when not ordered by competent authority or not permitted by law. Qualifying circumstances: Death Penalty is imposed (KERT) 1. If the purpose is to extort ransom;
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CRIMINAL LAW BOOK TWO 2. When the victim is killed or dies a consequence of the detention; 3. When the victim is raped; or 4. When the victim is subjected to torture or dehumanizing act. The essence of the crime of kidnapping is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it.(People v. Pavillare G.R. No. 129970, April 5, 2000) If the person killed, tortured or rape is not the same victim of kidnapping or detention, the crimes may be complexed or be considered as separate offenses. The essential element or act which makes the offense kidnapping is the deprivation of an offended party’s liberty under any of the four circumstances enumerated. But when the kidnapping or detention was committed for the purpose of extorting ransom, it is not necessary that one or any of such circumstances enumerated in the first par. of Art. 267 be present. Actual demand for ransom is NOT necessary. Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48 nor be treated as separate crimes but shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by RA 7659. Regardless of the number of the victims killed, there is one crime only of special complex crime of kidnapping with homicide or murder, as the case may be. However, if the person killed is not the kidnap victim, it shall be treated as a separate crime of homicide or murder, as the case may be. When the victim is a minor and accused is any of the parents, the penalty is that provided for in Art. 271 par.2, RPC Where there is no showing that the accused intended to deprive their victims of their liberty for some time and for some purpose, and there being no appreciable interval between their being taken and their being shot from which kidnapping may be inferred, the crimes committed were murder and frustrated murder and not the complex crimes of kidnapping with murder and kidnapping with frustrated murder. There is no kidnapping with murder, but only murder where a 3-year old child was gagged, hidden in a box
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where he died and ransom asked. The demand for ransom did not convert the offense into kidnapping with murder. The defendant was well aware that the child would be suffocated to death in a few moments after she left. The demand for ransom is only a part of the diabolic scheme of the defendant to murder the child, to conceal his body and then demand money before the discovery of the cadaver. (People vs. Lora, G.R. No.49430. March 30, 1982) Illegal Detention Committed by a private individual who unlawfully kidnaps, detains or otherwise deprives a person of liberty. Crime is against personal liberty and security
Arbitrary Detention Committed by a public officer or employee who detains a person without legal ground
Crime against the fundamental law of the State
Kidnapping with Rape Forcible Abduction with Rape Lewd design came after At the outset, there is the intent to kidnap the already lewd design. victim. It is a special complex It is a complex crime crime. under Article 48 since forcible abduction is a necessary means of committing the crime of rape. If there is an attempted If there is an attempted rape, it shall be rape, the crime considered a separate committed is only crime. forcible abduction, the former being an expression of the lewd design. If there are multiple If there are multiple rapes, there is only one rapes, only one is special complex crime complexed with forcible of Kidnapping with abduction and the rest Rape. shall be considered as separate crimes.
ARTICLE 268 SLIGHT ILLEGAL DETENTION Elements: (PIKO) 1. That the offender is a private individual; 2. That he kidnaps or detains another, or in any manner deprives him of his liberty; 3. That the act of kidnapping or detention is illegal; 4. That the crime is committed without the attendance of the circumstances enumerated in Art. 267.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Liability is mitigated when the following circumstances concur: (VOB) 1. Offender voluntarily releases the person so kidnapped or detained within three days from the commencement of the detention 2. Without having attained the purpose intended; and 3. Before the institution of criminal proceedings against him. When the victim is female, the detention is under Art 267; voluntary release is not mitigating there. The same penalty of reclusion temporal shall be incurred by anyone who shall furnish the place for the perpetration of the crime. His participation is raised to that of a real coprincipal. If the crime is under Article 267, he is a mere accomplice unless there was conspiracy. ARTICLE 269 UNLAWFUL ARREST
Committed by failing to deliver such person to the proper judicial authority within a certain period
Committed by making an arrest not authorized by law
SECTION TWO: KIDNAPPING OF MINORS ARTICLE 270 FAILURE TO RETURN A MINOR Elements: (EF) 1. That the offender is entrusted with the custody of a minor person (less than 18 years old); 2. That he deliberately fails to restore the said minor to his parents or guardian;
This may also be committed by the mother or father of the child. When committed by either parent, penalty is only arresto mayor. Kidnapping and failure to return a minor (Art. 270) is necessarily included in Kidnapping and Serious Illegal Detention of Minor (Par. 4 of Art. 267), but what differentiates them are the following:
Elements: (ADU) 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is unauthorized by law or there is no reasonable ground therefor.
Art. 267
Art. 270
Offender is not entrusted with the custody of the victim
Offender is entrusted with the custody of the minor
Illegally detaining or kidnapping the minor.
What is punished is the deliberate failure of the offender having the custody of the minor to restore him to his parents or guardian
The offender is any person, whether a public officer or a private individual. However, the public officer must not be vested with the authority to arrest or detain a person or must not act in his official capacity. Otherwise, Art. 124 is applicable and not Art. 269 Unlawful Arrest (Art. 269)
Purpose of locking up or detaining the victim is to deliver him to the proper authorities, and develops to be unlawful.
ARTICLE 271 INDUCING A MINOR TO ABANDON HIS HOME
Other Illegal Detention
Any other case.
No period of detention is fixed by law under Art. 269 but the motive of the offender is controlling.
Elements: (LI) 1. That a minor (less than 18 years old) is living in the home of his parents or guardian or the person entrusted with his custody; 2. That the offender induces said minor to abandon such home.
Delay in the Delivery of Detained Persons (Art. 125)
Unlawful Arrest (Art. 269)
Detention is for some legal ground
Detention is not authorized by law
Inducement must be (a) actual, (b) committed with criminal intent and (c) determined by a will to cause damage. The crime committed may be exploitation of minors depending on the purpose of the inducement. To induce means to influence; to prevail on; to move by persuasion; or to incite by
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motives. Father or mother may commit crimes under Arts. 270 & 271- where they are living separately and the custody of the minor children has been given to one of them It is not necessary that the minor actually abandons the home.
Art. 273
SECTION THREE: SLAVERY AND SERVITUDE
Elements: (PE) 1. That the offender purchases, sells, kidnaps or detains a human being; 2. That the purpose of the offender is to enslave such human being.
ARTICLE 273 EXPLOITATION OF CHILD LABOR Elements: (RAR-age) 1. That the offender retains a minor in his service; 2. That it is against the will of the minor; 3. That it is under pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. ARTICLE 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT Elements: (CAP) 1. That the offender compels a debtor to work for him, either as household servant or farm laborer; 2. That it is against the debtor’s will; 3. That the purpose is to require or enforce the payment of a debt. Note: Creditor-Debtor relationship between the offender and the offended party must exist, otherwise, the crime committed is coercion.
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Victim is a minor
Does not distinguish whether the victim is a minor or not
Minor is compelled to render services for the supposed debt of his parent or guardian.
Debtor himself is the one compelled to work for the offender.
Service of minor is not limited to household and farm work.
Limited to household and farm work. If in other capacities, crime committed may be coercion.
ARTICLE 272 SLAVERY
Qualifying circumstance: When the purpose of the offender is to assign the offended party to some immoral traffic. If the victim is female, the crime committed may be that under Article 341 or white slave trade. The purpose must be determined, if the purpose is to enslave the victim, it is slavery; otherwise, it is kidnapping or illegal detention.
Art. 274
CHAPTER TWO: CRIMES AGAINST SECURITY (ARTS. 275-289) SECTION ONE: ABANDONMENT OF HELPLESS PERSONS AND EXPLOITATION OF MINORS ARTICLE 275 ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF ONE’S OWN VICTIM Acts punished: 1. By failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Elements: (UWOF) a. The place is uninhabited; b. The accused found there a person wounded or in danger of dying; c. The accused can render assistance without detriment to himself; d. The accused fails to render assistance. 2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured. 3. By failing to deliver a child under seven years of age whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place.
“Uninhabited place” is determined by possibility of person receiving assistance from another. The place may still be considered uninhabited in legal
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contemplation even if there are many houses around but the possibility of receiving assistance is remote. The child under seven years of age must be found in an unsafe place. It is immaterial that the offender did not know that the child is under seven years. ARTICLE 276 ABANDONING A MINOR
Elements: (SCAN) 1. That the offender has the custody of a child; 2. That the child is under seven years of age. 3. That he abandons such child; 4. That he has no intent to kill the child when the latter is abandoned. If there is intent to kill and the child dies, the crime would be murder, parricide, or infanticide, as the case may be. If the child does not die, it is attempted or frustrated murder, parricide or infanticide, as the case may be. Intent to kill cannot be presumed from the death of the child. The ruling that intent to kill is conclusively presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 176. If the intent in abandoning the child is to lose its civil status, the crime under Article 347 (concealment or abandonment of a legitimate child) is committed. The minor should not leave his home of his own free will.
2.
one, without the consent of the proper authorities. By neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits.
Elements of Abandonment of Minor: 1. That the offender has charge of the rearing or education of a minor; 2. That he delivers said minor to a public institution or other persons; 3. That the one who entrusted such child to the offender has not consented to such act, or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it. Elements of Indifference of Parents: (PNP) 1. That the offender is a parent; 2. That he neglects his children by not giving them education; 3. That his station in life requires such education and his financial condition permits it. Failure to give education must be due to deliberate desire to evade such obligation. The "neglect of child" punished under Article 59(4) of PD 603 is also a crime (known as "indifference of parents") penalized under the second paragraph of Article 277 of the Revised Penal Code. (De Guzman v. Perez, et al. G.R. No. 156013 July 25, 2006) Abandonment of Minor by Persons Entrusted with Custody (Art. 277)
Abandonment of Minor (Art. 276)
Circumstances Qualifying the Offense: (DD) 1. When the death of the minor resulted from such abandonment; or 2. If the life of the minor was in danger because of the abandonment
The custody of the offender is specific, that is, the custody for the rearing or education of the minor
The custody of the offender is stated in general
Minor is under 18 yrs. of age
Minor is under 7 years of age
Minor is delivered to a public institution or other person
Minor is abandoned in such a way as to deprive him of the care and protection that his tender years need
The act must be conscious and deliberate such that the abandonment deprives the child of the care and protection from danger to his person. ARTICLE 277 ABANDONMENT OF MINOR ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS
Acts punished: 1. By delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that
ARTICLE 278 EXPLOITATION OF MINORS Prohibited Acts: 1. Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength, or contortion,
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CRIMINAL LAW BOOK TWO the offender being any person. 2. Employing children under 16 years of age who are not children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling. 3. Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of said callings. 4. Delivering a child under 16 gratuitously to any person following any calling enumerated in paragraph two, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher, or person entrusted in any capacity with the care of such child. 5. Inducing any child under 16 to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any calling mentioned in paragraph two, or to accompany any habitual vagrant or beggar, the offender being any person.
Must be of such nature as to endanger the life or safety of the minor.
Qualifying Circumstance: Delivery of the child is made in consideration of any price, compensation or promise Exploitation of Minors (Art 278, par. 5)
Inducing A Minor to Abandon his Home (Art. 271)
The purpose of inducing the minor to abandon the home is to follow any person engaged in any of the callings mentioned
No such purpose
Victim is under years of age
Victim is a minor (under 18 years of age)
16
ARTICLE 280 QUALIFIED TRESPASS TO DWELLING Elements: (PEA) 1. That the offender is a private person; 2. That he enters the dwelling of another; 3. That such entrance is against the latter’s will. Rational: To protect and preserve by law the privacy of one’s dwelling. Qualifying Circumstance: If committed by means of violence/intimidation. Simple Trespass to Dwelling Offender enters the dwelling of another and the entrance is against the latter’s will.
R.A. 7610 punishes abuse, exploitation and discrimination of minors ARTICLE 279 ADDITIONAL PENALTIES FOR OTHER OFFENSES
Imposition of the penalties prescribed in the preceding articles (Art 275-278) shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished under the Code.
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SECTION TWO: TRESPASS TO DWELLING
Qualified Trespass to Dwelling Offender enters the dwelling of another against the latter’s will and the offense is committed by means of violence or intimidation.
“Dwelling place” means any building or structure exclusively devoted for rest and comfort. It is not necessary that it be the permanent dwelling of the person. Determining factor of whether a building is a dwelling depends upon the use to which it is put. In general, all members of a household must be presumed to have authority to extend an invitation to enter the house. To commit trespass, the entrance by the accused should be against the presumed/implied or express prohibition of the occupant. Lack of permission does not amount to prohibition. There is an implied prohibition when entrance is made through means not intended for ingress. Rule: Whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will. Prohibition in this case is presumed. If a person was killed after trespass by the offender, the following crimes are committed: If there was no intent to kill when he entered - separate crimes of homicide or murder and qualified trespass to dwelling If there was intent to kill when he entered the crime of homicide/murder with dwelling as an aggravating circumstance
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Prohibition must be inexistence prior to or at the time of entrance. Prohibition is not necessary when violence or intimidation is employed by the offender (qualified trespass). Violence/Intimidation may be the method by which one may pass the threshold of the dwelling of another or the conduct immediately after the entrance of the offender. Normally, all trespassers have intention to commit another crime HOWEVER, if there is no overt act of crime intended to be done, what is committed is trespass to dwelling. Trespass may be committed by the owner of a dwelling (i.e. lessor enters the house leased to another against the latter's will) If the offender is a public officer or employee, the crime committed is violation of domicile.
Cases to which the provision of this article is NOT applicable: 1. If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person. 2. If the purpose is to render some service to humanity or justice. 3. If the place where entrance is made is a café, tavern, inn and other public house, while the same are open. Note: A person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will. (Sec. 6, Rule 113, Rules of Court) ARTICLE 281 OTHER FORMS OF TRESPASS Elements: (CUMN) 1. That the offender enters the closed premises or the fenced estate of another 2. That the entrance is made while either of them is uninhabited; 3. That the prohibition to enter be manifest; 4. That the trespasser has not secured the permission of the owner or the caretaker thereof. Qualified Trespass to Dwelling (Art. 280) Offender is a private person.
Other Forms of Trespass (Art. 281) The offender person.
is
Offender enters dwelling house.
a
Offender enters closed premises or fenced estate.
Place entered inhabited.
is
Place entered uninhabited.
is
Act constituting the crime is entering the dwelling against the will of the owner.
It is the entering the closed premises or the fenced estate without securing the permission of the owner or caretaker thereof.
Prohibition to enter is express or implied.
Prohibition to enter must be manifest.
Premises – signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed. SECTION THREE: THREATS AND COERCION ARTICLE 282 GRAVE THREATS Acts punished: 1. By threatening another with the infliction upon his person, honor, or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition even though not unlawful, and the offender attained his purpose. (with condition) 2. By making such threat without the offender attaining his purpose. (with condition; elements for this act are the same with the first except that the purpose is not attained.) 3. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition. (without condition) Grave Threats
Light Threats
Act threatened amounts to a crime
Act threatened does not amount to a crime
Threats
Coercion
Intimidation is essential
Intimidation or Violence is the essence of the crime
Intimidation is and conditional.
future
Force or Violence must be imminent, actual and immediate.
any
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CRIMINAL LAW BOOK TWO Intimidation is directed against the victim or his family.
Intimidation is directed against the victim only.
Qualifying Circumstance: If threat was made in writing or through a middleman. Elements of Grave Threats where the offender attained his purpose: (TCDA) 1. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong; 2. That such wrong amounts to a crime; 3. That there is a demand for money or that any other condition is imposed, even though not unlawful; 4. That the offender attains his purpose. Elements of Grave Threats NOT subject to a condition: (TCN) 1. That the offender threatens another person with the infliction upon the latter’s person, honor, or property, or upon that of the latter’s family, of any wrong. 2. That such wrong amounts to a crime. 3. That the threat is not subject to a condition.
The third form of grave threats must be serious in the sense that it is deliberate and that the offender persists in the idea involved in his threats. Intimidation (promise of future harm or injury) is the essence of the crime The crime of threats is consummated the moment the threat comes to the knowledge of the person threatened. If there is another crime actually committed or the objective of the offender is another crime, and the threat is only a means to commit it or a mere incident to its commission, the threat is absorbed by the other crime. If the threat was made with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect, the crime committed is grave threat, and the minor crime which accompanied it should be disregarded. When the offender demands the money or property on the spot, the crime is not grave threats BUT robbery with intimidation.
Note: a. Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any
152
immediate member or members of his family or; b. Imposing a condition, whether lawful or unlawful. In order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases is punishable under PD 1829. ARTICLE 283 LIGHT THREATS Elements: (TNDA/N) 1. That the offender makes a threat to commit a wrong; 2. That the wrong does not constitute a crime; 3. That there is a demand for money or that other condition is imposed even though not unlawful; 4. That the offender has attained his purpose or, that he has not attained his purpose. Note: Blackmailing may be punished under Art. 283. ARTICLE 284 BOND FOR GOOD BEHAVIOR When a person is required to give bail bond: 1. When he threatens another under the circumstances mentioned in Art. 282. 2. When he threatens another under the circumstances mentioned in Art. 283. Art. 35
Art. 284
Provides for bond to keep the peace
Provides for bond for good behavior
Not made applicable to any particular case
Applicable only to cases of grave threats and light threats
It is a distinct penalty
It is an additional penalty
If the offender fails to give the bond, he shall be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (if prosecuted for light felony)
If he shall fail to give bail, he shall be sentenced to destierro
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ARTICLE 285 OTHER LIGHT THREATS Prohibited Acts: (TOO) 1. Threatening another with a weapon, or drawing such weapon in a quarrel, unless it be in lawful self-defense. 2. Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat. 3. Orally threatening to do another any harm not constituting a felony. Where the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats. Art. 285
Art. 282 and Art. 283
No demand for money.
In certain cases, demand for money is material.
No condition imposed.
In certain cases, imposed condition is material.
Threat is not deliberate.
Threat is deliberate.
ARTICLE 286 GRAVE COERCION Two Ways of Committing Grave Coercion: (PC) 1. By preventing another by means of violence, threats or intimidation, from doing something not prohibited by law. (Preventive) 2. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. (Compulsive)
meetings, expressing his opinions or casting his vote through the use of force or intimidation. When COMPELLING is not considered Coercion: Under Art. 127: When a public officer compels a person to change his residence. Under Art. 267: When a person kidnaps his debtor to compel him to pay. Elements: (PCVN) 1. That a person prevented another from doing something not prohibited by law, or by compelling him to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, threats or intimidation. 3. That the person that restrained the will and liberty of another has no right to do so, or in other words, that the restraint is not made under authority of law or in the exercise of any lawful right. When PRISION MAYOR shall be imposed: (VCP) 1. If the coercion is committed in violation of the exercise of the right of suffrage. 2. If the coercion is committed to compel another to perform any religious act. 3. If the coercion is committed to prevent another from performing any religious act. Grave Coercion The act of preventing by force must be made at the time the offended party was doing or about to do the act prevented.
Preventive
Compulsive
Grave Coercion
The act prevented to be done must not be prohibited by law
The act compelled to be done by another against his will may or may not be prohibited by law
Intent to deprive the offended party of his liberty is not clear (i.e. may freely leave the house but is compelled to return).
When PREVENTING is not considered Coercion: Under Art. 132: When a public officer prevents the ceremonies of a religious group. Under Art. 143: When a person prevents the meeting of a legislative assembly. Under Art. 145: When a person prevents a member of Congress from attending
Unjust Vexation The act was already done when the violence was exerted.
Illegal Detention Intent to present.
deprive
is
Grave Coercion
Maltreatment of Prisoners
If the offended party is not a prisoner, extracting information using force or intimidation is coercion.
If the offended party is a prisoner, extracting information using force or intimidation is maltreatment.
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There is no grave coercion where the accused acted in good faith in the performance of his duty. Coercion is always consummated even if the offended party did not accede to the purpose of the coercion.
ARTICLE 287 LIGHT COERCION Elements: (CSVP) 1. That the offender must be a creditor; 2. That he seizes anything belonging to his debtor; 3. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; 4. That the purpose of the offender is to apply the same to the payment of the debt. Unjust Vexation (Art. 287, par. 2) Includes any human conduct which although not productive of some physical or material harm would, however, unjustly annoy or vex an innocent person. In determining whether the crime of unjust vexation is committed, the offender's act must have caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed. It is distinguished from grave and light coercions by the absence of violence. Light coercion will be unjust vexation when the element of violence is absent. ARTICLE 288 OTHER SIMILAR COERCIONS (COMPULSORY PURCHASE OF MERCHANDISE & PAYMENT OF WAGES BY MEANS OF TOKENS) Prohibited acts: 1. Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise or commodities of any kind from him Elements: a. That the offender is any person, agent or officer of any association or corporation. b. That he or such firm or corporation has employed laborers or employees c. That he forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase
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merchandise or commodities of any kind from him or from said firm or corporation. 2. Paying the wages due his laborer or employee by means of tokens or objects other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee Elements: a. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects b. That those tokens or objects are other than the legal tender currency of the Philippines. c. That such employee or laborer does not expressly request that he be paid by means of tokens or objects.
Inducing an employee to give up any part of his wages by force, stealth, intimidation, threat or by any other means is unlawful under Art. 116 of the Labor Code, not under the RPC. Wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons, or any other form alleged to represent legal tender is absolutely prohibited even when expressly requested by the employee.
ARTICLE 289 FORMATION, MAINTENANCE, & PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS Elements: 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; 2. That the purpose is to organize, maintain or prevent coalitions of capital or laborers or lockout of employers.
The act should not be a more serious offense. Peaceful picketing is allowed. When the picketers employ violence or if they make threats, they shall be held liable for coercion. Preventing employee from joining any registered labor organization is punished under the Labor Code, not under the RPC.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS CHAPTER THREE: DISCOVERY AND REVELATION OF SECRETS (ARTS. 290292)
ARTICLE 291 REVEALING SECRETS WITH ABUSE OF OFFICE
ARTICLE 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE
Elements: (MLR) 1. That the offender is a manager, employee or servant; 2. That he learns the secrets of his principal or master in such capacity; 3. That he reveals such secrets.
Elements: (PSID) 1. That the offender is a private individual or even a public officer not in the exercise of his official function; 2. That he seizes the papers or letters of another; 3. That the purpose is to discover the secrets of such other person; 4. That the offender is informed of the contents of the papers or letters seized. Qualifying Circumstance: Offender reveals the contents of such paper or letter of another to a third person. Prejudice is not an element of this offense. There must be taking possession of papers or letters of another even for a short time. If the purpose of seizure is to cause damage, estafa is committed. If the purpose is to harass or annoy, the crime is unjust vexation. Art. 230
Art. 290
Public officer comes to know the secret of any private individual by reason of his office.
Private individual
The secret is not necessarily contained in papers or letters.
It is necessary that offender seizes papers or letters another to discover secret of the latter.
Reveals without reason.
Damage is not necessary. ARTICLE 292 REVELATION OF INDUSTRIAL SECRETS
Elements: (MSRP) 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 2. That the manufacturing/industrial establishment has a secret of the industry which the offender has learned; 3. That the offender reveals such secrets; 4. That prejudice is caused to the owner.
Secrets must relate to manufacturing process. Prejudice is an element in this offense
TITLE TEN: CRIMES AGAINST PROPERTY ARTICLE 293 WHO ARE GUILTY OF ROBBERY
the the of the
the secret justifiable
If there is a secret discovered, it is not necessary that it be revealed.
Act punished is the revelation of secrets by the officer by reason of his office.
Act punished is the seizure of correspondence so as to discover the secrets of the offended party.
Article 290 NOT applicable to: 1. Parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study; 2. Spouses with respect to the papers or letters of either of them.
Robbery – is the taking of personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything. Classification of Robbery: 1. Robbery with violence against, or intimidation of persons (Arts. 294, 297 and 298). 2. Robbery by use of force upon things (Arts. 299 and 302). Elements of Robbery in general: 1. That there be personal property (bienes muebles) belonging to another; 2. That there is unlawful taking (apoderamiento or asportacion) of that property; 3. That the taking must be with intent to gain (animus lucrandi); 4. That there is violence against or intimidation of any person or force used upon things.
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CRIMINAL LAW BOOK TWO Personal property As long as the personal property does not belong to the accused who has a valid claim thereover, it is immaterial whether said offender stole it from the owner, a mere possessor, or even a thief of the property. Unlawful taking 1. Unlawful taking means appropriating a thing belonging to another and placing it under one's control or possession. 2. Unlawful taking is COMPLETE: a. Robbery with violence against or intimidation of persons—offender has already the possession of the thing even if he has no opportunity to dispose of it. b. Robbery with force upon things—the thing must be brought outside the building for consummated robbery to be committed.
complete when the violence was used by the offender.
Art. 294 applies only where robbery with violence against or intimidation of persons takes place without entering an inhabited house under the circumstances in Art. 299. When both circumstances are present, the offense shall be considered as a complex crime under Art. 48, and the penalty shall be for the graver offense in the maximum period. (Napolis v. CA, No. L- 28865, Feb 28, 1972)
If it is the owner who forcibly takes the personalty from its lawful possessor, the crime is estafa under Art. 316(3) since the former cannot commit robbery on his own property even if he uses violence or intimidation.
Whenever violence against or intimidation of any person is used, the taking of personal property is always robbery. If there is no violence or intimidation, but only force upon things, the taking is robbery only if the force is used either to enter the building or to break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building or to force them open outside after taking the same from the building.
In the absence of this element, the crime committed is theft.
Intimidation does not need to be physical since it can also be psychological.
To determine the number of robberies committed, check if all the elements of robbery based on the provisions of the different means of committing the crime are present. If each case, the elements of a certain kind of robbery are present, then it constitutes one count of robbery already.
Intent to gain Intent to gain is presumed from the unlawful taking of personal property The elements of “personal property belonging to another” and that of “intent to gain” must concur. If the accused, with intent to gain, took from another, personal property which turned out to be his own property, the property not belonging to another, he cannot be held liable for robbery; even if in the taking the accused used violence against or intimidation of person, or force upon anything. If he took personal property from another, believing that it was his own property, but in reality it belonged to the offended party, there being no intent to gain, he cannot be held liable for robbery, even if the accused used violence against or intimidation of person, or force upon things. Thus, If the property turns out to be the offender’s own property, an impossible crime is committed. If there was no intent to gain, estafa or coercion may be committed. Violence or Intimidation Violence or intimidation must be present BEFORE the taking of personal property is complete. But when the violence results in homicide, rape, intentional mutilation or any of the serious physical injuries penalized in Par. 1 and 2 of Art 263, the taking of the personal property is robbery complexed with any of those crimes under Art. 294, even if the taking was already
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SECTION ONE: ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS ARTICLE 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS Acts Punished under this Article: 1. (a) When by reason or on occasion of the robbery, the crime of homicide is committed; (b) or when the robbery is accompanied by rape or intentional
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS mutilation or arson. 2. When by reason or on occasion of such robbery any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted. (subdivision 1 of Art. 263) 3. When by reason or on occasion of robbery, any of the physical injuries penalized in subdivision 2 of Art. 263 is inflicted. When the person injured a. Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg; b. Loses the use of any such member; or c. Becomes incapacitated for the work in which he was therefore habitually engaged, in consequence of the physical injuries inflicted; 4. (a) If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime; or (b) When in the course of its execution, the offender shall have inflicted upon ANY PERSON NOT RESPONSIBLE FOR ITS COMMISSION physical injuries covered by subdivisions 3 and 4 of Art. 263. When the person injured a. Becomes deformed, or b. Loses any other member of his body, or c. Loses the use thereof, or d. Becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days, in consequence of the physical injuries inflicted. When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. 5. If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only. (simple robbery) These offenses are known as SPECIAL COMPLEX CRIMES. Crimes defined under this article are the following: 1. Robbery with homicide 2. Robbery with rape 3. Robbery with intentional mutilation 4. Robbery with arson
5. Robbery with serious physical injuries Robbery with Homicide The term “homicide” is used in its generic sense and includes any kind of killing, whether parricide or murder or where several persons are killed and the name of this special complex crime shall remain as robbery with homicide. The qualifying circumstance (e.g. treachery in murder) will only become an aggravating circumstance. Homicide may precede robbery or may occur after robbery. What is essential is that the offender must have intent to take personal property before the killing. Where the offender’s intention to take personal property of the victim arises as an afterthought, where his original intent was to kill, he is guilty of two separate crimes of homicide or murder, as the case may be, and theft. The phrase “by reason” covers homicide committed before or after the taking of personal property of another, as long as the motive of the offender in killing is to deprive the victim of his personal property which is sought to be accomplished by eliminating an obstacle, killing a person after robbery to do away with a witness or to defend the possession of the stolen property. There is robbery with homicide even if the person killed was a bystander and not the person robbed or even if it was one of the offenders. The law does not require the victim of the robbery be also the victim of homicide. Robbery with homicide exists even if the death of the victim supervened by mere accident. It is sufficient that a homicide resulted by reason or on the occasion of the robbery. (People v. Mangulabnan, 99 Phil. 992 [1956]) Robbery with Rape In robbery with rape, the law uses the phrase “when the robbery shall have been accompanied by rape”. But like in robbery with homicide, the offender must have the intent to take the personal property belonging to another with intent to gain, and such intent must precede the rape. Robbery with rape does not cover robbery with attempted rape since what is provided by the RPC is a special complex crime of robbery with rape. Robbery with attempted rape cannot be complexed under Art. 48 since one crime is not a necessary means of committing the other nor can both be
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results of a single act. All the robbers may be held liable for robbery with rape even if not all of them committed the crime of rape based on the concept of conspiracy. (People vs. Balacanao, G.R. No. 118133, February 28, 2003) Par 1 of this article also applies even if the victim of the rape committed by the accused was herself a member of the gang of robbers.
Note: There is no crime of Robbery with Multiple Homicide or Robbery with Multiple Counts of Rape. Although there be more than one instance of homicide/murder or rape, they shall be considered as embraced under one special complex crime of either Robbery with Homicide or Robbery with Rape. Neither shall the additional rape/s or homicide/s be considered aggravating. Unless and until a law is passed providing that the additional rape/s (or homicide/s) may be considered aggravating, the Court must construe the penal law in favor of the offender as no person may be brought within its terms if he is not clearly made so by the statute. (People vs. Sultan, G. R. No. 132470, April, 27, 2000). Robbery with Arson In the case of robbery with arson, it is essential that the robbery precedes the arson. There must be an intent to commit robbery and no killing, rape or intentional mutilation should be committed in the course of the robbery, or else, arson will only be considered an aggravating circumstance of the crime actually committed. Robbery with Serious Physical Injuries Par 2 and par. 3 of this article also apply even when the serious physical injuries referred to therein are inflicted upon a corobber. th Under the 4 act punishable, clause A, the violence need not result in serious physical injuries. The first clause in Art 294 par 4 requires only that the violence be unnecessary for the commission of the crime. To be considered as robbery with physical injuries, the injuries inflicted must be serious; otherwise, they shall be absorbed in the robbery. However, if the less serious or slight physical injuries were committed after the robbery was consummated, that would constitute a separate offense. Under clause B, it is required that the physical injuries be inflicted in the course
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of the execution of the robbery and that any of them was inflicted upon any person not responsible for the commission of the robbery Simple Robbery Par. 5 is known as simple robbery because they only involve slight or less serious physical injuries, which are absorbed in the crime of robbery as an element thereof.
Violence or intimidation may enter at any time before the owner is finally deprived of his property. This is so because asportation is a complex fact, a whole divisible into parts, a series of acts, in the course of which personal violence or intimidation may be injected. Threats to Extort Money
Robbery thru Intimidation
Intimidation is conditional or future.
Intimidation is and immediate.
Intimidation may be through an intermediary.
Intimidation is personal.
Intimidation may refer to person, honor or property of the offended party or of his family.
Intimidation is directed only to the person of the victim.
The gain of the culprit is not immediate.
The gain of the culprit is immediate.
Robbery
Bribery
The victim is deprived of his money, property by force or intimidation.
He parts with his money, in a sense, voluntarily.
Robbery
Grave Coercion
With intent to gain
actual
No intent to gain
ARTICLE 295 ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE BY A BAND OR WITH THE USE OF FIREARM ON A STREET, ROAD OR ALLEY Qualified Robbery with Violence Against or Intimidation of Persons: Nos. 3, 4, and 5 of Article 294 if committed: 1. In an uninhabited place (despoblado); or 2. By a band (en cuadrilla); or 3. By attacking a moving train, street car, motor vehicle, or airship; or 4. By entering the passengers’ compartments in a train, or in any manner
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS taking the passengers by surprise in their respective conveyances; or 5. On a street, road, highway, or alley, and the intimidation is made with use of firearms, the offender shall be punished by the maximum period or the proper penalties prescribed in Art. 294. This article provides five special aggravating circumstances which, because they impose the penalty in the maximum period and cannot be offset by a generic mitigating circumstance, are also considered as qualifying circumstances. Art. 294 Despoblado and en cuadrilla need not concur
Art. 300 Both must concur
If the crime committed is robbery with homicide, rape, mutilation or arson (Par. 1) or with physical injuries under subdivision 1 of Art. 263 (Par. 2), despoblado and cuadrilla will each be considered only as a generic aggravating circumstance. ARTICLE 296 DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF Outline: 1. When at least four armed malefactors take part in the commission of a robbery, it is deemed committed by a band. 2. When any of the arms used in the commission of robbery is not licensed, the penalty upon all malefactors shall be the maximum of the corresponding penalty provided by law without prejudice to the criminal liability for illegal possession of firearms. 3. Any member by a band who was present at the commission of a robbery by the band, shall be punished as principal of any assaults committed by the band, unless it be shown that he attempted to prevent the same. Art. 296, just like Art. 295, also applies only to robbery under pars. 3, 4 and 5 of Art. 294, and not to robbery with homicide, rape, intentional mutilation, arson or the physical injuries in par. 1 of Art. 263. PD 1866 penalizes illegal possession of firearm in addition to criminal liability for robbery by a band.
firearm in murder and homicide is now considered not as a separate crime but merely a special aggravating circumstance. Use of unlicensed firearm by a band in the commission of robbery with physical injuries cannot be offset by a generic mitigating circumstance. Requisites for liability for the acts of other members of the band: 1. He was a member of the band; 2. He was present at the commission of a robbery by that band; 3. The other members of that band committed an assault; 4. He did not attempt to prevent the assault.
Proof of conspiracy is not necessary when four or more armed persons committed robbery. The circumstance that the robbery was committed by a band would only be appreciated as an ordinary aggravating circumstance in Robbery with Homicide. No such crime as robbery with homicide in band. (People vs. Apduhan, Jr., G.R. No. L-19491, August 30, 1968)
ARTICLE 297 ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES Special Complex Crime: When by reason or on occasion of an attempted or frustrated robbery, a homicide is committed. “Homicide” under this article is also used in its generic sense - to include any other unlawful killing. However, if the killing legally constituted murder or parricide, the offense will continue to be covered by Art. 297 with the technical name stated therein, but the penalty shall be for murder or parricide because Art. 297 states, “unless the homicide (killing) committed shall deserve a higher penalty under this Code.” The penalty is the same whether the robbery is attempted or frustrated. If homicide is not consummated, the crimes of robbery and attempted or frustrated homicide: 1. May be complexed (Article 48), or 2. Considered as separate crimes, or 3. Considered as one crime, one absorbing the other.
Under R.A. No. 8294, the use of unlawful
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CRIMINAL LAW BOOK TWO If physical injuries were inflicted on the victim, but no intent to kill was proved and the victim did not die, the liability of the offender may be as follows: 1. If the physical injuries were by reason of the attempted or frustrated robbery as the means for the commission of the latter, the injuries are absorbed by the latter and the crime shall only be attempted or frustrated robbery. 2. If the physical injuries were inflicted only on the occasion of the aborted robbery but not employed as a means of committing the latter, these will be separate crimes of attempted or frustrated robbery and physical injuries. 3. If both killing and physical injuries were committed on that occasion, the crime will be penalized in accordance with Art. 297 but the physical injuries will be absorbed.
a. Through an opening not intended for entrance or egress; b. By breaking any wall, roof, floor, door, or window; c. By using false keys, picklocks or similar tools; or d. By using any fictitious name or pretending the exercise of public authority. 3. That once inside the building, the offender took personal property belonging to another with intent to gain
When the offense committed is attempted or frustrated robbery with serious physical injuries, Art. 48 is applicable, since the felony would fall neither under Art 294 which covers consummated robbery with homicide nor under Art 297 which covers attempted or frustrated robbery with homicide. However, for Art. 48 to apply, serious physical injuries must be employed as a necessary means of committing robbery. ARTICLE 298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION
Elements: 1. That the offender has intent to defraud another; 2. That the offender compels him to sign, execute, or deliver any public instrument or document; 3. That the compulsion is by means of violence or intimidation. SECTION TWO: ROBBERY WITH THE USE OF FORCE UPON THINGS ARTICLE 299 ROBBERY IN AN INHABITED HOUSE/PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP Elements: (Subdivision A) 1. The offender entered a. an inhabited house, b. a public building or c. an edifice devoted to religious worship 2. The entrance was effected by any of the following means:
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Any of the four means described in subdivision (a) of Art. 299 must be resorted to by the offender TO ENTER a house, not to get out. The wall broken must be an outside wall, not a wall between rooms in a house or building, because the breaking of a wall must be for the purpose of entering. But if a room is occupied by a person as his separate dwelling, the breaking of the room’s wall may give rise to robbery. False keys are genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock forcibly opened by the offender. The false key or picklock must be used for entering the building. The whole body of the culprit must be inside the building to constitute entering. Not every physical force exerted by the offender is covered by Art. 299, hence breaking store windows to steal something but without entry, is only theft.
Elements: (Subdivision B) 1. Offender is inside a dwelling house, public building or edifice devoted to religious worship, regardless of the circumstances under which he entered it. 2. The offender takes personal property belonging to another with intent to gain under any of the following circumstances: a. by the breaking of internal doors, wardrobes, chests, or any other kind of sealed furniture or receptacle b. by taking such furniture or objects away to be broken open outside the place of the robbery
Entrance into the building by any means mentioned in subdivision (a) of Article 299 is not required in robbery under subdivision (b) of the same article.
The term door under this subdivision refers only to doors lids or opening sheets
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS of furniture or other portable receptaclesNOT to outside doors of house or building.
not an edifice devoted to religious worship; 2. That any of the following circumstances was present: a. The entrance was effected through an opening not intended for entrance or egress; b. A wall, roof, floor, or outside door or window was broken; c. The entrance was effected through the use of false keys, picklocks or other similar tools; d. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere; 3. That with intent to gain, the offender took therefrom personal property belonging to another.
It is estafa or theft, if the locked or sealed receptacle is not forced open in the building where it is kept or taken therefrom to be broken outside. ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND
Under this Article, Robbery with Force Upon Things is qualified when committed in an uninhabited place AND by a band, as distinguished from Qualified Robbery with Violence or Intimidation of Persons (Art. 295) which is committed in an uninhabited place OR by a band. ARTICLE 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Inhabited House – means any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Dependencies of an inhabited house, public building or building dedicated to religious worship – all interior courts, corrals, warehouses, granaries or enclosed places 1. Contiguous to the building or edifice, 2. Having an interior entrance connected therewith, and 3. Which form part of the whole. Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building and having direct connection therewith. Public Building – includes every building owned by the Government or belonging to a private person not included, used or rented by the Government, although temporarily unoccupied by the same. ARTICLE 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING
The only difference between Arts. 299 and 302 is that the use of fictitious name or simulation of public authority can be used only in Art. 299 which refers to inhabited buildings and not in Art. 302 which involves uninhabited or other places. While Art. 302 provides for robbery in an “uninhabited place,” it actually means an uninhabited house.
When the property taken is a mail matter during any of the robbery defined in Arts. 294, 295, 297, 299, 300 & 302, the penalties next higher than those provided in said articles shall be imposed.
The taking of large cattle is now punished under P.D. No. 533. ARTICLE 303 ROBBERY OF CEREALS, FRUITS, OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING Penalty is 1 degree lower when cereals, fruits, or firewood are taken in robbery with force upon things. Cereals are seedlings which immediate product of the soil.
are
the
The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers.
Elements: 1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or
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CRIMINAL LAW BOOK TWO ARTICLE 304 POSSESSION OF PICKLOCKS OR SIMILAR TOOLS Elements: 1. That the offender has in his possession picklocks or similar tools; 2. That such picklocks or similar tools are specially adopted to the commission of robbery; 3. That the offender does not have lawful cause for such possession.
Actual use of picklocks or similar tools is not necessary in illegal possession thereof. ARTICLE 305 FALSE KEYS
Inclusions: 1. Tools not mentioned in the next preceding article 2. Genuine keys stolen from the owner 3. Any keys other than those intended by the owner for use in the lock forcibly opened by the offender.
A master key is a picklock and its possession is punishable. A lost or misplaced key found by another and not returned to its rightful owner is considered as a genuine key stolen from the owner. CHAPTER TWO: BRIGANDAGE (ARTS. 306-307) PRESIDENTIAL DECREE 532 Modified Arts. 306 & 307
Definition of Terms (Section 2) Philippine waters – refer to all bodies of water, such as but not limited to seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction Vessel – any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters and includes all kinds and types of vessels or boats used in fishing
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Philippine highway – refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both Piracy – any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy and offenders shall be considered as pirates Highway robbery/brigandage – seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means, committed by any person on any Philippine highway Elements: 1. The robbery should take place along the Philippine highway. 2. The act of robbery must be indiscriminate. It should not be an isolated case. 3. The victim was not predetermined. The robbery must be directed not only against specific, intended or perceived victims, but against any and all prospective victims.
Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an ACCOMPLICE.
Punishable Acts 1. Piracy (Section 3) 2. Highway robbery/brigandage (Section 3) 3. Aiding pirates or highway robbers/ brigands or abetting piracy or highway robbery/ brigandage (Section 4) PD 532 Mere conspiracy to constitute the offense of brigandage is not punishable (presupposes that acts defined are actually committed)
Brigandage (Art. 306, RPC) Mere formation of a band for any purpose indicated in the law is punishable
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Offenders need not constitute a band. One person can commit the crime.
ARTICLE 306 BRIGANDAGE Elements: 1. There be at least four armed persons 2. They formed a band of robbers 3. The purpose is any of the following: a. To commit robbery in a highway; or b. To kidnap persons for the purpose of extortion or to obtain ransom; or c. To attain by means of force or violence any other purpose Presumption of law as to brigandage: All are presumed to be highway robbers or brigands, if any of them carry unlicensed firearm. Brigandage may be committed without the use of firearms. The term “armed” covers arms and weapons in general, not necessarily firearms. The only things to prove are: 1. That there is an organization of more than three armed persons forming a band of robbers; 2. That the purpose of the band is any of those enumerated in Art. 306; 3. That they went upon the highway or roamed upon the country for that purpose; 4. That the accused is a member of such band. Brigandage
Robbery in Band
Purpose: commit robbery in highway; or to kidnap person for ransom; or any other purpose attained by force and violence
Purpose: commit robbery, not necessarily in highways
Agreement commit robberies.
Agreement is to commit a particular robbery.
is to several
Mere formation punished.
is
ARTICLE 307 AIDING OR ABETTING A BAND OF BRIGANDS
Offenders must be a band of robbers
Actual commission of robbery is necessary.
Elements: 1. That there is a band of brigands; 2. That the offender knows the band to be of brigands; 3. That the offender does any of the following acts: a. That he aids, abets, or protects such band of brigands; b. That he gives them information on the movements of the police or other peace officers of the government; or c. That he acquires or receives property taken by such brigands.
It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.
CHAPTER THREE: THEFT (ARTS. 308-311) ARTICLE 308 WHO ARE LIABLE FOR THEFT Theft – is committed by any person who, with intent to gain but without violence or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent. Elements: 1. That there be taking of personal property; 2. That said property belongs to another; 3. That the taking be done with intent to gain; 4. That the taking be done without the consent of the owner; 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; It is necessary to prove: a. The time of the seizure of the thing; b. That it was a lost property belonging to another; and c. That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so.
The term “lost property” embraces loss by stealing. The finder in law can also be held
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CRIMINAL LAW BOOK TWO liable for theft under this paragraph. 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; 3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner; shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products. Elements: 1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another; 2. That the offender enters the same; 3. That the offender hunts or fishes upon the same or gathers fruits, cereals, or other forest or farm products in the estate or field; and 4. That the hunting or fishing or gathering of products is without the consent of the owner.
The fishing referred to in this article is not fishing in the fishpond or fishery; otherwise it is qualified theft under Art 310. Theft is not a continuing offense. What distinguishes THEFT from ROBBERY is that in theft the offender does not use violence or intimidation or does not enter a house or building through any of the means specified in Art. 299 or Art. 302 in taking personal property of another with intent to gain. In theft, the phrase used is “shall take personal property of another”, not “shall take away such property”. In theft, it suffices that consent on the part of the owner is lacking. In robbery, it is necessary that the taking is against the will of the owner.
From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (People vs. Salvilla, GR. No. 86163, April 26, 1990). The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony (Valenzuela vs. People of the Philippines, G. R. No. 160188, June 21, 2007). Theft is not limited to an actual finder of lost
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property who does not return or deposit it with the local authorities but includes a policeman to whom he entrusted it and who misappropriated the same, as the latter is also a finder in law. Theft of electricity is also punishable under RA 7832, the Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994. ARTICLE 309 PENALTIES The basis of penalty in Theft is: 1. The value of the thing stolen, and in some cases, 2. The value and the nature of the property taken, or 3. The circumstances or causes that impelled the culprit to commit the crime. ARTICLE 310 QUALIFIED THEFT There is qualified theft in the following instances: 1. If theft is committed by a domestic servant 2. If committed with grave abuse of confidence 3. If the property stolen is (a) motor vehicle, (b) mail matter or (c) large cattle 4. If the property stolen consists of coconuts taken from the premises of plantation. 5. If the property stolen is taken from a fishpond or fishery 6. If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance Elements: 1. Taking of personal property; 2. That the said property belongs to another; 3. That the said taking be done with intent to gain; 4. That it be done without the owner’s consent; 5. That it be accomplished without the use of violence or intimidation against persons, nor of force upon things; 6. That it be done with grave abuse of confidence. (People v. Puig, G.R. Nos. 173654-765, August 28, 2008) Penalty for qualified theft is two degrees higher than that provided in Art. 309.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS ANTI CARNAPPING ACT of 1972 (R.A. 6539) Carnapping - taking, with intent to gain, of motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things. Motor Vehicle – any vehicle which is motorized using the streets which are public, not exclusively for private use, comes within the concept of motor vehicle. It includes all vehicles propelled by power, other than muscular power.
If the OWNER, DRIVER OR OCCUPANT of a carnapped vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof, the penalty of reclusion perpetua to death shall be imposed.
Since Sec. 14 of RA 6539 uses the words “IS KILLED,” no distinction must be made between homicide and murder.
If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft or estafa
Qualified Theft only: If material or physical possession was given to the offender Estafa only: If material plus juridical possession were given to the offender CATTLE RUSTLING LAW of 1974 (P.D. 533) Cattle Rustling – is defined as the taking away by means, method or scheme, without the consent of the owner/raiser, of any large cattle whether or not for profit or gain, or whether committed with or without violence against or intimidation of persons or force upon things. It includes the killing of large cattle or taking it as meat or hide without the consent of the owner/raiser. Large Cattle – shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. Goats are not large cattle. Presumption of Cattle Rustling: Failure to exhibit the required documents by any person having in his possession, control, or custody of large cattle, upon demand by competent
authorities shall be prima facie evidence that the large cattle in his possession, control and custody are the fruits of the crime of cattle rustling. LAW ON ILLEGAL FISHING (P.D. 534) Illegal Fishing – the act of any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substances or by the use of electricity. Dealing in illegally caught fish or fishery/aquatic products – any person who possesses or deals in, sells or in any manner disposes of, for profit , any fish, fishery/aquatic products which have been illegally caught, taken or gathered. “HIGHGRADING” OR THEFT OF GOLD (P.D. 581) “Highgrading” or Theft of Gold – the act of any person who shall take gold-bearing ores or rocks from a mining claim or mining camp or shall remove, collect or gather gold-bearing ores or rocks in place or shall extract or remove the gold; from such ores or rocks, or shall prepare and treat such ores or rocks to recover or extract the gold content thereof, without the consent of the operator of the mining claim. Presumption: Unauthorized possession by any person within a mining claim or mining camp of gold-bearing ores or rocks or of gold extracted or removed from such ores or rocks shall be prima facie evidence that they have been stolen from the operator of a mining claim (Sec. 2). ANTI – FENCING LAW (P.D. 1612) Elements: 1. Crime of robbery or theft has been committed; 2. Accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes of, or shall buy and sell, or in any other manner deal any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of said crime; 3. Accused knows or should have known that said article, item, object or anything of
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CRIMINAL LAW BOOK TWO value has been derived from the proceeds of theft or robbery; 4. Accused has intent to gain for himself or another. Section 2. Definition of Terms. Fencing – the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell, or dispose of, or shall buy and sell, or in any other manner deal any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. Section 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Section 6. Clearance/Permit to Sell Used/ Second Hand Articles. All stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of value shall, before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located. Any person who fails to secure the required clearance/permit shall also be punished as a fence. Notes: Fencing is not a continuing offense. The court of the place where fencing was committed has jurisdiction over the case. The place where robbery or theft took place is insignificant. An accessory to the crime of robbery or theft may also be held liable for fencing. PRESIDENTIAL DECREE NO. 401 Penalizing the Unauthorized Installation of Water, Electrical or Telephone Connections, the Use of Tampered Water or Electrical Meters, and other Acts (March 1, 1974) Acts punished: 1. The use of tampered water or electrical meters to steal water or electricity; 2. The stealing or pilfering of water and/or electrical meters, electric and/or telephone wires; 3. Knowingly possessing stolen or pilfered water and/or electrical meters and stolen
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or pilfered electric and/or telephone wires. Theft of electricity can also be committed by any of the following means: 1. Turning back the dials of the electric meter; 2. Fixing the electric meter in such a manner that it will not register the actual electric consumption; 3. Under-reading of electric consumption; and 4. Tightening screw or rotary blades to slow down the rotation of the same (People v. Relova, No. L- 45129, March 6, 1987). PENALIZING TIMBER SMUGGLING OR ILLEGAL CUTTING OF LOGS FROM PUBLIC FORESTS AND FOREST RESERVES AS QUALIFIED THEFT (P.D. NO. 330) Any person, whether natural or juridical who directly or indirectly cuts, gathers, removes, or smuggles timber, or other forest products, either from any of the public forest, forest reserves and other kinds of public forest, whether under license or lease, or from any privately owned forest land in violation of existing laws, rules and regulations shall be guilty of the crime of qualified theft. P.D. NO. 705 REVISING PRESIDENTIAL DECREE NO. 389, OTHERWISE KNOWN AS THE FORESTRY REFORM CODE OF THE PHILIPPINES Acts punished: 1. Cutting, gathering and/or collecting timber or other products without license from any forest land or timber from alienable and disposable public lands or from private lands shall be guilty of qualified theft under Art 309 and 310 of the RPC; 2. Entering and occupying or possessing, or making kaingin for his own private use or for others any forest land without authority or destroying in any manner such forest land or part thereof, or causing any damage to the timber stand and other products and forest growths found therein; 3. Grazing or causing to graze without authority livestock in forest lands, grazing lands and alienable and disposable lands which have not as yet been disposed of in accordance with Public Land Act; 4. Occupying for any length of time without permit any portion of the national parks system or cutting, destroying, damaging, or removing timber or any species of vegetation or forest cover and other
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS natural resources found therein or mutilating, defacing, or destroying objects of natural beauty or of scenic value within areas of the natural park system; 5. Selling or offering for sale any log, lumber, plywood or other manufactured wood products in the international or domestic market, unless he complies with the grading rules established or to be established by the Government. ARTICLE 311 THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM Theft of property on National Library and Museum has a fixed penalty regardless of its value. But if the crime is committed with grave abuse of confidence, the penalty for qualified theft shall be imposed, because Art 311 says “unless a higher penalty should be provided under the provisions of this Code.”
CHAPTER FOUR: USURPATION (ARTS. 312-313) ARTICLE 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Elements: 1. That the offender takes possession of any real property or usurps any real rights in property; 2. That the real property or real rights belong to another; 3. That violence against or intimidation of persons is used by the offender in occupying real property or usurping real property or usurping real right in property; 4. That there is intent to gain. Acts punishable under Article 312: 1. By taking possession of any real property belonging to another by means of violence against or intimidation of persons. 2. By usurping any real rights in property belonging to another by means of violence against or intimidation of persons. There is only civil liability, if there is no violence or intimidation in taking possession. Art 312 does not apply when the violence or intimidation took place subsequent to the entry. Violence or intimidation must be the means used in occupying real property or in usurping real rights and not in retaining possession.
When there is no intent to gain, crime committed is coercion. When there is no violence or intimidation used and there is no intent to gain, the crime is only malicious mischief. Art 312 only provides a penalty of fine. However, the offender shall also suffer the penalty for acts of violence executed by him. Art. 48 on complex crimes does not apply. Criminal action for usurpation of real property does not bar a civil action for forcible entry Republic Act No. 947 punishes entering or occupying of public agricultural land including public lands granted to private individuals. Squatters: As defined under Urban Development and Housing Act, they are: 1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway. 2. Those who were awarded lots but sold or lease them out. 3. Those who are intruders of lands reserved for socialized housing, preempting possession by occupying the same. Theft /Robbery Personal taken.
property
Art. 312 is
Real property or real right involved
ARTICLE 313 ALTERING BOUNDARIES OR LANDMARK Elements: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same; 2. That the offender alters said boundary marks.
Altering is understood in its general and indefinite meaning. Any alteration is enough to constitute the material element of the crime.
CHAPTER FIVE: CULPABLE INSOLVENCY (ART. 314) ARTICLE 314 FRAUDULENT INSOLVENCY Elements: 1. That the offender is a debtor, that is, he has obligations due and demandable; 2. That he absconds with his property;
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CRIMINAL LAW BOOK TWO 3. That there be prejudice to his creditors.
Actual prejudice is required. Real property may be the subject matter of fraudulent insolvency
Unlike in the Insolvency Law, Art. 314 does not require for its application that the criminal act should have been committed after the institution of insolvency proceedings. CHAPTER SIX: SWINDLING AND OTHER DECEITS (ARTS. 315-318) ARTICLE 315 SWINDLING/ESTAFA Elements in general: 1. That the accused defrauded another by abuse of confidence, or by means of deceit; 2. That the damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons. Damage or prejudice may consist of: 1. Offended party being deprived of his money or property as a result of the defraudation; 2. Disturbance in property rights; 3. Temporary prejudice. Note: Profit or gain must be obtained by the accused personally and mere negligence in allowing another to benefit from the transaction is not estafa. I.
Estafa with Unfaithfulness or Abuse of Confidence A. Estafa with unfaithfulness (Article 315, No. 1-A) Elements: 1. That the offender has an onerous obligation to deliver something of value; 2. That he alters its substance, quantity or quality; 3. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons. It is estafa even if the obligation be based on an immoral or illegal obligation. When there is no agreement as to the quality of thing to be delivered, the delivery of the thing not acceptable to the complainant is
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not estafa. B. Estafa with abuse of confidence (Article 315 No.1-B) Elements: 1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; 2. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; 3. That such misappropriation or conversion or denial is to the prejudice of another; 4. That there is demand made by the offender party to the offender. Note: The second element shows three ways in which estafa under this paragraph be committed: 1. Misappropriation the thing received, 2. Conversion of the thing received, or 3. Denial of the receipt of the thing received Definition of Terms 1. Misappropriation (M) - the act of taking something for one’s own benefit 2. Conversion - the act of using or disposing of another’s property as it was one’s own; thing has been devoted to a purpose or use other than that agreed upon. 3. Material Possession (MP) – The actual physical possession of personal property, where the possessor cannot claim a better right to such property than that of its owner. 4. Juridical Possession (JP) – Is present when the possession of the personal property arises from a lawful causation, contract or agreement, express or implied, written or unwritten or by virtue of a provision of law. In such a case, the possessor of the property has a better right to it than the owner and may set up his possession thereof against the latter due to the lawful transaction
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS between them. 5. Ownership (O) – There is ownership of the personal property when there is no obligation to return exactly the same property given or lent to the possessor. Take Note: 1. If the offender has been given Material Possession of the personal property and he Misappropriates the same, he is liable for the crime of THEFT.
Is Novation a Ground to Extinguish Criminal Liability under Estafa? NO. The Novation of the contract or obligation AFTER criminal liability for Estafa has been INCURRED is NOT a ground to extinguish the offender’s criminal liability. Novation is not one of the grounds for the extinguishment of criminal liability under Art. 89 of the RPC. HOWEVER, where such novation, occurs BEFORE the criminal liability for Estafa has been incurred, that is when not all the elements therefore are present, then no criminal liability attaches.
MP + M = Theft 2. If the offender has been given Juridical Possession and Material Possession of the personal property and he Misappropriates the same, he is liable for the crime of ESTAFA.
Theft The offender takes the thing without the owner’s consent The offender acquires only the material or physical possession of the thing
JP + MP + M = Estafa 3. If the person has been given the Ownership, Juridical Possession, and Material Possession of the personal property and he Misappropriates the same, he is NOT criminally liable and incurs only a CIVIL LIABILITY. O + JP + MP + M = NO CRIME The contracts of deposit, commodatum, and lease, quasicontract of solutio indebiti and trust receipt transactions are examples of obligations involving the duty to return or make delivery. The thing to be delivered or returned by the offender must be the very object which he received. The person prejudiced need not necessarily be the owner of the property. General Rule: There must be a formal demand on the offender to comply with his obligation before he can be charged with estafa. Exceptions: 1. When the offender’s obligation to comply is subject to a period, and 2. When the accused cannot be located despite due diligence.
Estafa The offender receives the thing from the offended party. The offender acquires also the juridical possession of the thing and the offender misappropriates it
Note: If an object was received to be sold, but instead it was pledged, estafa is committed. If an object was to be pledged, but instead it was sold, theft is committed. Estafa Malversation Offenders are entrusted with funds or property Considered as continuing offenses The funds or property Usually public funds are private or property Offender is a private Offender who is individual or even a usually a public officer public officer who is is accountable for not accountable for public funds or public funds or property property. There is no estafa Malversation can be through negligence committed through abandonment or negligence Crime is committed by misappropriating, converting or denying having received money, goods, or other personal property
Crime is committed by appropriating taking or misappropriating or consenting, or through abandonment or negligence, permitting any other person to take the public funds or property
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CRIMINAL LAW BOOK TWO C. Estafa by taking undue advantage of the signature in blank (Article 315, No. 1-C) Elements: 1. That the paper with the signature of the offended party be in blank; 2. That the offended party should have delivered it to the offender; 3. That above the signature of the offended party a document is written by the offender without authority to do so; 4. That the document so written creates a liability of, or causes damage to the offended party or any third person.
Illegal Recruitment – Any act of canvassing, enlisting, hiring, or procuring workers, including referring contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority.
Note: If the paper with the signature in blank is stolen the crime is falsification of documents by making it appear that he participated in a transaction when in fact he did not.
Any such non-licensee or non-holder of authority who, for a fee, offers and promises employment abroad to two or more persons shall be deemed so engaged in illegal recruitment.
II. Estafa by Means of Deceit (Article 315, No. 2) Elements: 1. That there must be false pretense, fraudulent act or fraudulent means; 2. That such false pretense, act or fraudulent means must be made or executed prior to or simultaneously with the commission of fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of fraudulent means; 4. That as a result thereof, the offended party suffered damage.
There is no deceit if the complainant was aware of the fictitious nature of the pretense. It is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant, it being essential that such false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing.
Ways of commission: A. Art. 315 No. 2 (A): 1. By using a fictitious name. 2. By falsely pretending to possess
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(a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions. 3. By means of other similar deceits. ILLEGAL RECRUITMENT Under the Migrant Workers Act (R.A. No. 8042)
Economic Sabotage: 1. Illegal recruitment by syndicate – committed by a group of three (3) or more persons conspiring or confederating with one another. 2. Large Scale Illegal Recruitment – committed against three (3) or more persons.
Penalty for Illegal Recruitment involving economic sabotage is punishable by life imprisonment and fine of P500,000 to P1,000,000. In People v. Calonzo (G.R. Nos. 11515055, Sept. 27, 1996), The SC reiterated the rule that a person convicted for illegal recruitment under the Labor Code, as amended, can be convicted for estafa, under Art 315 (par. 2), if the elements of the crime are present. B.
Art. 315 No. 2 (B) By altering, the quality, fineness or weight of anything pertaining to his business
C.
Art. 315 No. 2 (C) By pretending to have bribed any Government employee The accused, by pretending to have bribed a government employee, can be held further liable for such calumny in a criminal action for either slander or libel depending on how he recounted the supposed bribery. However, the crime committed is
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS corruption of public officer if the money was indeed given
same reason had not the drawer, without any valid reason, ordered the bank to stop payment.
D. Art. 315 No. 2 (D) Elements: 1. That the offender postdated a check, OR issued a check in payment of an obligation 2. That such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check
The issuance by the offender of the check (whether postdated or not), prior to or simultaneous with the transaction, must be for the purpose of contracting the obligation, otherwise if the check is issued in payment of a preexisting obligation, no estafa is committed only a civil liability. If the check was issued by the debtor only for security of the creditor, as in the nature of promissory notes but not to be encashed, no estafa will be involved. Good faith is a defense in a charge of estafa by postdating or issuing a check. (People v. Villapando, 56 Phil 31) Estafa by issuing a bad check is a continuing offense There is prima facie evidence of deceit when the drawer fails to pay or make arrangement for payment three (3) days after receiving notice of dishonor. BOUNCING CHECKS LAW (B.P. Blg. 22)
Offenses Punished under BP 22: A. Making or Drawing and issuing a check knowing at the time of issue that he does not have sufficient funds. Elements: 1. That a person makes or draws and issues any check to apply on account or for value. 2. That the person knows that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such check upon its presentment 3. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the
Requisites for Criminal Liability under BP 22 1. A person makes, draws or issues a check as payment for account or for value. 2. That the check was dishonored by the bank due to a lack of funds, insufficiency of funds or account already closed. 3. The payee or holder of such check gives a written notice of dishonor and demand for payment. 4. That the maker, drawer or issuer, after receiving such notice and demand, refuses or fails to pay the value of the check within FIVE BANKING DAYS.
It is not the making, drawing, or issuance, nor the dishonor of the check which gives rise to a violation of BP 22, but rather the failure to make good the check within FIVE BANKING DAYS from receipt of the Notice of Dishonor and Demand for Payment.
Take Note: While the written notice of dishonor and demand is not an element in the violation of BP 22, the failure to give such notice to the maker, drawer or issuer of the bouncing check is FATAL to an action to hold the latter criminally liable. The full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense" against BP 22 The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on the maker, drawer or issuer of the check. He has a right to demand that the notice of dishonor be actually sent to and received by him to afford him the opportunity to avert prosecution under B.P. 22. (Lina Lim Lao v. People, G.R. No. 119178, June 20, 1997) B. Failing to keep sufficient funds to cover the full amount of the check. Elements: 1. That a person has sufficient funds with the drawee bank when he makes or draws and issues a check 2. That he fails to keep sufficient funds or
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CRIMINAL LAW BOOK TWO to maintain a credit to cover the full amount if presented within a period of 90 days from the date of appearing thereon. 3. That the check is dishonored by the drawee bank
does not delete the penalty of imprisonment, for should the judge decide that imprisonment is the more appropriate penalty; the circular ought not to be a hindrance.
Take Note: The 90 day period stated above is NOT an element of the violation of BP 22 by failing to keep sufficient funds. As such, the maker, drawer or issuer of the check is not discharged from his duty to maintain a sufficient balance in his account for a reasonable time even beyond the 90 day period. A “reasonable time” according to current banking practice is 6 months or 180 days, after which the check becomes stale. Thus, where a check is presented beyond the 90 day period, but within 180 days from the date indicated therein, and it is dishonored due to a failure to maintain a sufficient balance, the maker, drawer or issuer shall still be liable for violation of BP 22. (Wong v. CA, GR No. 117857, February 2, 2001). Gravamen of BP 22 is the issuance of a worthless or bum check. Evidence of Knowledge of Insufficient Funds: Refusal of drawee bank to pay the check due to insufficiency of funds when presented within 90 days from the date of the check shall be prima facie knowledge of insufficiency of funds, unless the drawer or maker pays the holder the amount due thereon or makes arrangements for the payment thereof by the drawee within five (5) banking days after receipt of notice that the check was dishonored. Under SC Administrative Circular 12-2000, as clarified by A.C. 132001: Where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of intelligence, the imposition of fine alone should be considered as the more appropriate penalty. The Administrative Circular merely lays down a RULE OF PREFERENCE in the application of the penalties provided for in B.P. 22. The circular
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Prosecution under BP 22 shall be without prejudice to any liability for any violation in the RPC. The fine under BP 22 is based on the amount of the check and is without regard to the amount of damage caused. The accused will be liable for the dishonor of the check even if it was issued in payment of a preexisting legal obligation as he issued that check “to apply on account.” BP 22 Endorser liable
is
Estafa (RPC) not
Endorser who acted with deceit knowing that the check is worthless will be criminally liable
Malum prohibitum Issuance of check is for value or on account
Malum in se It is the means to obtain the valuable consideration from the payee (debt is not preexisting)
Deceit and damage are not elements of the crime; the gravamen of the offense is the issuance of the unfunded check
False pretenses or deceit and damage, or at least intent to cause damage, are essential and the false pretenses must be prior to or simultaneous with the damage caused
The drawer is given 5 days after receiving notice of dishonor within which to pay or make arrangements for payment
Given 3 days after receiving notice of dishonor
That there are no funds or no sufficient funds at the time of issuance or at the time of presentment if made within 90 days
That there are no funds or there are insufficient funds at the time of issuance
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS BP 22
Estafa (RPC)
The maker or drawer and issuer knows at the time of issue that he does not have sufficient fund in or credit with the drawee bank for the payment of the check in full
Not necessary that the drawer should know at the time that he issued the check that the funds deposited in the bank were not sufficient to cover the amount of the check No presumption of knowledge arises
Mere issuance of a check that is dishonored gives rise to the presumption of knowledge of insufficiency of funds
E. Art. 315, No. 2(E) 1. By obtaining food, refreshment or accommodation at hotel, inn, restaurant, boarding house, lodging house or apartment house without paying thereof, with intent to defraud the proprietor or manager thereof 2. By obtaining credit at any of the said establishments by the use of any false pretense 3. By abandoning or surreptitiously removing any part of his baggage from any of the said establishment after obtaining credit, food, refreshment or accommodation therein, without paying therefor. III. Estafa Through the Following Means A. Estafa by inducing another to sign any document (Article 315 No. 3A) Elements: 1. That the offender induced the offended party to sign a document; 2. That deceit be employed to make him sign the document; 3. That the offended party personally signed the document; 4. That prejudice be caused. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document, the crime committed is falsification. BUT where the accused made representation as to mislead the complainant as to the character of the documents, it is considered estafa.
B. Estafa by resorting to some fraudulent practice to insure success in gambling (Article 315 No. 3B) C. Estafa by removing, concealing or destroying documents (Article 315 No. 3C) Elements: 1. That there be court record, office files, documents or any other papers; 2. That the offender removed, concealed or destroyed any of them; 3. That the offender had intent to defraud another. Infidelity in Custody of Document (Art. 226)
Estafa (Art. 315 C)
Same manner of committing the crime Offender is a public The offender is a officer who is private individual or officially entrusted public officer who is with the document. not officially entrusted with the documents Intent to defraud is There is intent to not necessary. defraud.
If there is no intent to defraud, the crime committed is malicious mischief.
ARTICLE 316 OTHER FORMS OF SWINDLING Persons liable: 1. Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same. Elements: a. That the thing be immovable, such as a parcel of land or a building; (property must actually exist) b. That the offender who is not the owner of said property should represent that he is the owner thereof; c. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property); d. That the act be made to the prejudice of the owner or a third person.
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CRIMINAL LAW BOOK TWO Note: If the thing is not existing, the crime is estafa by means of false pretenses under Article 315 (2a).
becomes solutio indebiti, with the civil obligation to return the wrong payment.
2. Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded.
6. Any person who shall sell, mortgage or encumber real property with which the offender guaranteed the fulfillment of his obligation as surety.
Elements: a. That the thing disposed of be real property. b. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not. (principle of constructive notice does not apply) c. That there must be express representation by the offender that the real property is free from encumbrance. d. That the act of disposing of the real property be made to the damage of another.
Elements: a. That the offender is a surety in a bond given in a criminal or civil action; b. That he guaranteed the fulfillment of such obligation with his real property or properties; c. That he sells, mortgages, or, in any manner encumbers said real property; d. That such sale, mortgage or encumbrance is (1) without express authority from the court, or (2) made before the cancellation of his bond, or (3) before being relieved from the obligation contracted by him.
Note: If the thing is a personalty, Article 319 applies. 3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. Elements: a. That the offender is the owner of personal property; b. That said personal property is in the lawful possession of another; c. That the offender wrongfully takes it from its lawful possessor; (if from unlawful possessor, Article 429 of the Civil Code applies) d. That prejudice is thereby caused to the possessor or third person. Note: The crime will still be estafa even if the owner takes the personalty from the lawful possessor under the modes of taking in theft or robbery which latter crimes cannot be committed by the owner on his property (Regalado). 4. Any person who, to the prejudice of another, shall execute any fictitious contract. 5. Any person who shall accept any compensation for services not rendered or for labor not performed. This act requires fraud as an essential element. If there is no fraud, it only
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ARTICLE 317 SWINDLING A MINOR Elements: 1. That the offender takes advantage of the inexperience or emotions or feelings of a minor; 2. That he induces such minor to assume an obligation, or to give release, or to execute a transfer of any property right; 3. That the consideration is some loan of money, credit, or other personal property; (if real property, Article 318 applies; minor cannot convey real property without judicial authority) 4. That the transaction is to the detriment of such minor. ARTICLE 318 OTHER DECEITS 1. By defrauding or damaging another by any other deceit not mentioned in the preceding articles. 2. By interpreting dreams, by making forecasts telling fortunes, by taking advantage of the credulity of the public in any other manner, for profit or gain. REPUBLIC ACT NO. 8484 ACCESS DEVICES REGULATION ACT OF 1998 Definition of terms. For purposes of this Act, the terms: 1. Access Device - any card, plate, code, account number, electronic serial number,
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS personal identification number, or other telecommunications service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value or to initiate a transfer of funds (other than a transfer originated solely by paper instrument); 2. Counterfeit Access Device - any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or counterfeit access device; 3. Unauthorized Access Device - any access device that is stolen, lost, expired, revoked, canceled, suspended, or obtained with intent to defraud; 4. Access Device Fraudulently Applied for - any access device that was applied for or issued on account of the use of falsified document, false information, fictitious identities and addresses, or any form of false pretense or misrepresentation; 5. Consumer - a natural person; 6. Credit Card - any card, plate, coupon book, or other credit device existing for the purpose of obtaining money, goods, property, labor or services or any thing of value on credit; 7. Device Making or Altering Equipment any equipment, mechanism or impression designed or primarily used for making or altering or reencoding an access device or a counterfeit access device; 8. Finance Charges - represent the amount to be paid by the debtor incident to the extension of credit such as interest or discounts, collection fees, credit investigation fees, and other service charges; 9. Open-end-credit plan - a consumer credit extended on an account pursuant to a plan under which: a. The creditor may permit the person to make purchase or obtain loans, from time to time, directly from the creditor or indirectly by use of credit card, or other service; b. The person has the privilege of paying the balance; or c. A finance charge may be computed by the creditor from time to time on an unpaid balance.
10. Penalty Charges - such amount, in addition to interest, imposed on the credit card holder for non-payment of an account within a prescribed period; 11. Produce - includes design, alter, authenticate, duplicate or assemble; and 12. Trafficking - transferring, or otherwise disposing of, to another, or obtaining control of, with intent to transfer or dispose of. Prohibited Acts (Section 9) The following acts shall constitute access device fraud and are hereby declared to be unlawful: 1. Producing, using, trafficking in one or more counterfeit access devices; 2. Trafficking in one or more unauthorized access devices or access devices fraudulently applied for; 3. Using, with intent to defraud, an unauthorized access device; 4. Using an access device fraudulently applied for; 5. Possessing one or more counterfeit access devices or access devices fraudulently applied for; 6. Producing, trafficking in, having control or custody of, or possessing device-making or altering equipment without being in the business or employment, which lawfully deals with the manufacture, issuance, or distribution of such equipment; 7. Inducing, enticing, permitting or in any manner allowing another, for consideration or otherwise to produce, use, traffic in counterfeit access devices, unauthorized access devices or access devices fraudulently applied for; 8. Multiple imprinting on more than one transaction record, sales slip or similar document, thereby making it appear that the device holder has entered into a transaction other than those which said device holder had lawfully contracted for, or submitting, without being an affiliated merchant, an order to collect from the issuer of the access device, such extra sales slip through an affiliated merchant who connives therewith, or, under false pretenses of being an affiliated merchant, present for collection such sales slips, and similar documents; 9. Disclosing any information imprinted on the access device, such as, but not limited to, the account number or name or address of the device holder, without the latter's authority or permission; 10. Obtaining money or anything of value
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CRIMINAL LAW BOOK TWO through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter; 11. Having in one's possession, without authority from the owner of the access device or the access device company, an access device, or any material, such as slips, carbon paper, or any other medium, on which the access device is written, printed, embossed, or otherwise indicated; 12. Writing or causing to be written on sales slips, approval numbers from the issuer of the access device of the fact of approval, where in fact no such approval was given, or where, if given, what is written is deliberately different from the approval actually given; 13. Making any alteration, without the access device holder's authority, of any amount or other information written on the sales slip; 14. Effecting transaction, with one or more access devices issued to another person or persons, to receive payment or any other thing of value; 15. Without the authorization of the issuer of the access device, soliciting a person for the purpose of: a. Offering an access device; or b. Selling information regarding or an application to obtain an access device; or 16. Without the authorization of the credit card system member or its agent, causing or arranging for another person to present to the member or its agent, for payment, one or more evidence or records of transactions made by credit card. Conspiracy to commit access device fraud. (Section 11) is punishable under this code. Frustrated and attempted access device fraud (Section 12) is also punishable. Accessory to access device fraud (Section 13) Any person who, with intent to gain for himself or for another, buy, receives, possesses, keeps, acquires, conceals, sells, or disposes of, shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows or should be known to him, to have been acquired through the use of counterfeit access device or an unauthorized access device or an access device known to him to have been fraudulently applied for, shall be considered as an accessory to an access device Said person shall be prosecuted under this Act or under the Anti-Fencing Law of 1979 (Presidential Decree No. 1612) whichever imposes the
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longer prison term as consummated offense.
penalty
for
the
Presumption and prima facie evidence of intent to defraud (Section 14) The mere possession, control or custody of: a. An access device, without permission of the owner or without any lawful authority; b. A counterfeit access device; c. Access device fraudulently applied for; d. Any device-making or altering equipment by any person whose business or employment does not lawfully deal with the manufacture, issuance, or distribution of access device; e. An access device or medium on which an access device is written, not in the ordinary course of the possessor's trade or business; or f. A genuine access device, not in the name of the possessor, or not in the ordinary course of the possessor's trade or business, shall be prima facie evidence that such device or equipment is intended to be used to defraud.
A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.
CHAPTER SEVEN: CHATTEL MORTGAGE (ARTS. 319) ARTICLE 319 REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY Acts punishable: A. By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it is located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS Removal of Mortgaged Property Elements: 1. That personal property is mortgaged under Chattel Mortgage Law; 2. That the offender knows that such property is so mortgaged; 3. That he removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage; 4. That the removal is permanent; 5. That there is no written consent of mortgagee, executors, administrators, or assigns to such removal.
The removal of the mortgaged personal property must be coupled with intent to defraud.
A third person, other than mortgagor, may be held liable
Art. 319
Art. 316 (Par. 2) The property involved is real property. To constitute estafa, it is sufficient that the real mortgaged be sold as free, even though the vendor may have obtained the consent of the mortgagee in writing.
The property involved is personal property. Selling or pledging of personal property already pledged or mortgaged is committed by the mere failure to obtain the consent of the mortgagee in writing, even if the offender should inform the purchaser that the thing sold is mortgaged. The purpose of the law The purpose is to is to protect the protect the purchaser, mortgagee. whether the first or the second.
the
If the mortgagee elected to file a suit for collection, not foreclosure, thereby abandoning the mortgage as basis for relief, the removal of the property is not a violation of par 1 of Art 319. Chattel mortgage must be valid and subsisting.
B. By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Sale or Pledge of Mortgaged Property Elements: 1. Personal property is pledged under Chattel Mortgage Law; 2. Offender, who is the mortgagor, sells or pledges the same property or any part thereof; 3. No consent of mortgagee written on the back of the mortgage and noted on the record thereof in the Office of the Register of Deeds.
Art. 319 Distinguished from Estafa (Art. 316) by Disposing of Encumbered Property
Damage to the mortgagee is not essential.
CHAPTER EIGHT: ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS (ARTS. 320-326B) ARTICLE 320-326-B REPEALED BY PD 1613 PD 1613-AMENDING THE LAW ON ARSON Kinds of Arson: 1. Arson (Sec. 1, PD No. 1613) 2. Destructive arson (Art. 320, as amended by RA No. 7659) 3. Other cases of arson (Sec. 3, PD No. 1613) Arson – when any person burns or sets fire to the property of another, or his own property under circumstance which expose to danger the life or property of another. (Sec. 1, PD 1613) Destructive Arson (Art. 320, RPC) Burning of: 1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, committed on several or different occasions. 2. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as, but not limited to, official governmental function or business, private transaction, commerce, trade workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyances or stops or terminals,
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CRIMINAL LAW BOOK TWO regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. 4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. 5. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. There is also Destructive Arson: (Art. 320, RPC) 1. When the arson is committed by 2 or more persons, regardless of whether their purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission of another violation of the law 2. When any person shall burn: Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordnance, storehouse, archives or general museum of the Government. In an inhabited place, any storehouse or factory of inflammable or explosive materials. Other cases of Arson: (Sec. 3, PD 1613) Burning of: 1. Any building used as offices of the Government or any of its agencies. 2. Any inhabited house or dwelling. 3. Any industrial establishment, shipyard, oil, well or mine shaft, platform or tunnel. 4. Any plantation, farm, pasture land, growing crop or grain field, orchard, bamboo grove or forest. 5. Any rice mill, sugar mill, cane mill, or mill central. 6. Any railway or bus station, airport, wharf, or warehouse. Special Aggravating Circumstance on Arson (Sec. 4, PD 1613): 1. If committed with intent to gain. 2. If committed for the benefit of another. 3. If the offender be motivated by spite or hatred towards the owner or occupant of the property burned. 4. If committed by a syndicate - planned or carried out by three or more persons
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Prima facie evidence of Arson (Sec. 6, PD 1613): 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building not of the offender nor for the household. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance more than two fires have occurred in the same or other premises owned or under the control of the offender and /or insured. 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim.
Conspiracy to commit arson is punished. (Sec. 7, PD 1613) The object of arson including the land on which it is situated shall be confiscated and escheated to the State. (Sec. 8, PD 1613)
Attempted, frustrated or consummated arson: 1. A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he is about to light a match to set fire to the rags, he is discovered by another who chases him away. The crime committed is attempted arson, because the offender commences the commission of the crime directly by overt acts (placing the rags soaked in gasoline beside the wooden wall of the building and lighting a match) but he does not perform all the acts of execution (the
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS setting of fire to the rags) due to the timely intervention of another who chases away the offender. If that person is able to light or set fire to the rags but the fire was put out before any part of the building was burned, it is frustrated. But if before the fire was put out, it had burned a part of the building, it is consummated.
2. Any charring of the wood of a building, whereby the fiber of the wood is destroyed, is sufficient. It is necessary that the wood should be ablazed. And the mere fact that a building is scorched or discolored by heat is not sufficient to constitute consummated arson.
3. Setting fire to the contents of a building constitutes the consummated crime of setting fire of a building, even if no part of the building was burned. The offense is committed by a syndicate if it is planned or carried out by a group of three or more persons. If a part of the building commences to burn, the crime is consummated arson, however small is the portion burned. When there is fire, the crime committed is either frustrated (e.g. set fire to the blankets but fire was put out before any part of the building was burned) or consummated arson, never attempted. There is no complex crime of arson with homicide. The crime of homicide is absorbed. CHAPTER NINE: MALICIOUS MISCHIEF (ARTS. 327-331) Malicious Mischief – is the willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive. ARTICLE 327 MALICIOUS MISCHIEF Elements: 1. That the offender deliberately caused damage to the property of another; 2. That such act does not constitute arson or other crimes involving destruction; 3. That the act of damaging another’s property be committed merely for the sake of damaging it.
This third element presupposes that the offender acted due to hate, revenge or other evil motive. This crime cannot be committed thru reckless imprudence or thru violence in the course of a fight. If there is no malice in causing the damage, the obligation is only civil. Damage means not only loss but also a diminution of what is a man’s own. Thus, damage to another’s house includes defacing it. Malicious mischief does not necessarily include moral turpitude. It is theft when there is intent to gain as when the offender removes or makes use of the fruits or objects of the damage. (Art 308, par 2) ARTICLE 328 SPECIAL CASES OF MALICIOUS MISCHIEF
1. Causing damage to obstruct the performance of public functions; 2. Using poisonous or corrosive substances; 3. Spreading any infection or contagion among cattle; 4. Causing damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public. These are called qualified malicious mischief. The mischief mentioned in the first clause (no. 1) is to be distinguished from sedition (Art. 139), in that the element of public uprising and tumultuous uprising is not present in this crime. ARTICLE 329 OTHER MISCHIEFS Mischiefs not included in the next preceding article and are punished according to the value of damage caused. ARTICLE 330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION Person liable: Any person who shall damage any railway, telegraph or telephone lines. Qualifying circumstance: Damage shall result in the derailment of cars, collision or other accident. Art. 330 does not apply when the telegraph or telephone do not pertain to railways.
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CRIMINAL LAW BOOK TWO ARTICLE 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS Persons liable: 1. Any person who shall destroy or damage statues or any other useful or ornamental public monuments. 2. Any person who shall destroy or damage any useful or ornamental painting of a public nature. CHAPTER TEN: EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY (ART. 332) ARTICLE 332 PERSON EXEMPT FROM CRIMINAL LIABILITY Crimes involved in the exemption: 1. Theft 2. Swindling 3. Malicious mischief Persons exempted: 1. Spouses, ascendants and descendants, or relatives by affinity on the same line. 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed to the possession of another. 3. Brothers and sisters and brothers in law and sisters in law, if living together. 4. Stepfather, adopted father, natural children, concubine, paramour included as ascendants by affinity. Also applies to common-law spouses. No criminal liability but only civil liability shall result from the commission of any of the said crime. The exemption does not apply to strangers participating in the commission of the crime. The exemption does not apply if the crimes of theft, swindling and malicious mischief are complexed with another crime. TITLE ELEVEN: CRIMES AGAINST CHASTITY Crimes against chastity are also referred to as private crimes, or crimes which cannot be prosecuted de officio, because of the requirement that the prosecution thereof be upon a sworn written complaint of the offended party or certain persons authorized by law.
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The crimes against chastity which cannot be prosecuted de officio are: a. Adultery (Art. 333) b. Concubinage (Art. 334) c. Acts of lasciviousness with or without consent (Arts. 336, 339) d. Seduction whether qualified or simple (Arts. 337, 338), and e. Abduction which may be forcible or consented (Arts. 342, 343) But corruption of minors (Art. 340) and white slave trade (Art. 341) can be prosecuted de officio. CHAPTER ONE: ADULTERY AND CONCUBINAGE (ARTS. 333-334) ARTICLE 333 ADULTERY Who are liable? 1. The married woman who engages in sexual intercourse with a man not her husband. 2. The man who, knowing of the marriage of the woman, has sexual intercourse with her. Elements: 1. That the woman is married; 2. That she has sexual intercourse with a man not her husband; 3. That as regards the man with whom she has sexual intercourse, he must know her to be married. Adultery is committed even if the marriage is subsequently declared void. The death of the paramour will not bar prosecution against the unfaithful wife, because the requirement that both offenders be included in the complaint is absolute only when the offenders are alive. The death of the offended party will not terminate the proceedings. Each occasion of sexual intercourse constitutes a crime of adultery. The criminal liability is mitigated when adultery is committed while abandoned by spouse without justification There is no crime of frustrated adultery. Acquittal of one of the defendants will not automatically acquit the other. Abandonment without justification is not exempting circumstance but is merely mitigating.
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
Scandal consists in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbor’s spiritual damage or ruin.
A married man who does not know of the married status of the woman may be liable for concubinage, if he appears to be guilty of any of the acts defined in Art. 334.
Requirements of pardon: 1. Must come before the institution of the criminal prosecution; 2. Both offenders must be pardoned. There is an implied pardon: Act of intercourse with offending spouse subsequent to the adulterous conduct
Cohabit means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional transient interviews for unlawful intercourse.
When there is consent, whether implied or expressed, of the husband, he cannot institute a criminal complaint for adultery. Under the law there can be no accomplice in the crime of adultery, although in fact there can be such an accomplice.
Reason: Because adultery makes possible the introduction of another man’s blood into the family so that the offended husband may have another man’s son bearing his (husband’s) name and receiving support from him.
Recrimination – husband’s illicit relationship does not absolve but may mitigate wife’s liability for adultery.
Art. 335 has been repealed by RA No. 8353 (Anti-Rape Law of 1997) effective Oct. 22, 1997. Provisions on Rape are found in Arts. 266-A to 266-D under Crimes Against Persons.
ARTICLE 334 CONCUBINAGE
CHAPTER TWO: ACTS OF LASCIVIOUSNESS (ART. 336)
Who are liable? 1. The married man 2. The woman who knew that the man was married. Elements: 1. That the man must be married; 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling (mistress must live therein as such); b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife (proof of actual sexual relations not required as long as it can be inferred); c. Cohabiting with her in any other place (as husband and wife); 3. As regards to the woman, she must know him to be married.
Conjugal dwelling means the home of the husband and wife even if the wife happens to be temporarily absent on any account.
Scandalous circumstances are not necessary to make a husband guilty of concubinage by keeping a mistress in the conjugal dwelling.
Adultery is more severely punished than concubinage.
ARTICLE 336 ACTS OF LASCIVIOUSNESS Elements: 1. That the offender commits any act of lasciviousness or lewdness; 2. That the act of lasciviousness is committed against a person of either sex; 3. That it is done under any of the following circumstances: a. By using force or intimidation b. When the offended party is deprived of reason or otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the offended party is under 12 years of age or is demented.
The crime is unjust vexation in the absence of any of the above-mentioned circumstances (circumstances of rape). Attempted Rape
Acts of Lasciviousness
The acts performed by There is no intent to have offender clearly indicate sexual intercourse. that his purpose was to lie with the offended woman, it is attempted.
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CRIMINAL LAW BOOK TWO Attempted Rape
Acts of Lasciviousness
The lascivious acts are The lascivious acts are but the preparatory acts the final objective sought to the commission of by the offender. rape. Manner of commission is the same. The performance of lascivious character is common to both.
What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. There can be no attempted and frustrated acts of lasciviousness. In People v. Jalosjos (GR No. 132876279, Nov. 16, 2001), the SC adopted the definition of “lascivious conduct” in Sec. 32, Art. XIII of the Implementing Rules and Regulations of RA 7610, which reads as follows: “The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh or buttocks; or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.”
CHAPTER THREE: SEDUCTION, CORRUPTION OF MINORS, AND WHITE SLAVE TRADE (ARTS. 337-341) ARTICLE 337 QUALIFIED SEDUCTION Two classes: 1. Seduction of a virgin over 12 years and under 18 years of age by persons who abuse their authority or the confidence reposed. 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age and reputation. Elements: 1. That the offended party is a virgin; 2. She must be over 12 and under 18 years of age; 3. That the offender had sexual intercourse with her;
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4. That there is abuse of authority, confidence or relationship on the part of the offender. Virgin – refers to a woman of chaste character or a woman of good reputation. Virginity in this sense does NOT mean physical virginity. Virginity is presumed if the woman is unmarried and of good reputation. The following are the OFFENDERS: 1. Those who abused their authority: a. Persons in public authority b. Guardian c. Teacher d. Person who, in any capacity, is entrusted with the education or custody of the woman seduced 2. Those who abused confidence reposed in them: e. Priest f. House servant g. Domestic 3. Those who abused their relationship: h. Brother who seduced his sister i. Ascendant who seduced his descendant j. A “domestic” is different from a house servant, it means any person living under the same roof as a member of the same household, and includes boarders or house-guests but not transients or visitors. k. The fact that the girl gave her consent to the sexual intercourse is no defense. In the same way, lack of consent of the girl is not an element of the offense. l. The seduction of a sister or descendant is known as incest. Virginity of the sister or descendant is not required and she may be over 18 years of age. Relationship must be by consanguinity. The relationship need not be legitimate. ARTICLE 338 SIMPLE SEDUCTION Elements: 1. That the offended party is over 12 and under 18 years of age; 2. That she must be of good reputation, single or widow; 3. That the offender has sexual intercourse with her; 4. That it is committed by means of deceit.
Deceit
generally
takes
the
form
of
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
unfulfilled promise of marriage. It is not required in simple seduction that the victim be a virgin. The gist of qualified seduction is the abuse of authority, confidence, or relationship as the means of committing the crime. In simple seduction, it is the use of deceit. But in both kinds of seduction, there must be sexual intercourse. ARTICLE 339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY
Elements: 1. That the offender commits acts of lasciviousness or lewdness; 2. That the acts are committed upon a woman who is a virgin or single or a widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age; 3. That the offender accomplishes the acts by abuse of authority, confidence, relationship or deceit.
in a work, environment.
education
or
training-related
Prohibited acts: Demanding, requesting, or otherwise requiring any sexual favor from the other, regardless of whether the demand, request, or requirement is accepted by the object of the act. ARTICLE 340 CORRUPTION OF MINORS (AS AMENDED BY BP 92) Prohibited acts – to promote or facilitate the prostitution or corruption of persons under age to satisfy the lust of another. Under age means under 18 years of age. The victim must be of good reputation and not a prostitute or corrupted person. It is not necessary that the unchaste acts shall have been done since what is being punished is mere act of promotion or facilitation.
Art. 336
Art. 339
Special Protection of Children Against Child Abuse Act (R.A. 7610) – Child prostitution and attempt to commit child prostitution are punished under this Act.
The acts are committed under circumstances which, had there been carnal knowledge, would amount to rape
The acts of lasciviousness are committed under the circumstances which, had there been carnal knowledge, would amount to either qualified seduction or simple seduction
Sec. 5. Child Prostitution and other Sexual Abuse – Children whether male or female, who for money, profit or other consideration or due to the coercion or influence of any adult syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse.
The offended party is a female or a male
The offended party should only be female
Both treat of acts of lasciviousness
There is an oversight in the law where the victim is exactly 12 years of age. If the victim is below 12, the crime will be rape, or unconsented acts of lasciviousness or forcible abduction. Hence Art. 339 stating “over 12 years of age” should be construed as twelve years of age and over, thus construing the doubt in favor of the accused. ANTI-SEXUAL HARRASMENT ACT (R.A. No. 7877)
Persons penalized: Employer, employee, manager, supervisor, teacher, professor, instructor, coach, trainor, or any other person having authority, influence, or moral ascendancy over another
Persons liable: 1. Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to the following: a. Acting as a procurer of a child prostitute; b. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. Taking advantage of influence or relationship to procure a child as a prostitute; d. Threatening or using violence towards a child to engage him/her as a prostitute; e. Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. 2. Those who commit the act of sexual intercourse or lascivious conduct with a
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CRIMINAL LAW BOOK TWO child exploited in prostitution or subjected to other sexual abuse. 3. Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.(Sec 5, RA 7610) Note: There is also a crime of attempted child prostitution under Sec 5 pars. 1 and 2 of RA 7610. (Sec 6, RA 7610).
There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments.
Corruption of Minors
White Slave Trade
It is essential that victims are minors
Minority need not be involved
May have victims of either sex
Limited only to females
May not necessarily be for profit
Generally for profit
Committed by a single act
Generally habitually
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Abduction – is meant the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or corrupt her. Two Kinds of Abduction: 1. Forcible abduction (Art. 342) 2. Consented abduction (Art. 343) ARTICLE 342 FORCIBLE ABDUCTION Elements: 1. That the person abducted is a woman; regardless of her age, civil status, or reputation; 2. That the abduction is against her will; 3. That the abduction is with lewd design. Forcible Abduction
committed
The first two modes require the element of profit and habituality. In the third mode, the
Grave Coercion/ Kidnapping
With Lewd design
No lewd design
There is no deprivation of liberty.
There is deprivation of liberty.
Prohibited acts: 1. Engaging in the business of prostitution; 2. Profiting by prostitution; 3. Enlisting the services of women for the purpose of prostitution.
profit motive is not required. (Regalado) White slave trade may be with or without the consent of the woman, while slavery for the purpose of assigning the woman to immoral traffic (Art. 272) is committed against her will.
CHAPTER FOUR: ABDUCTION ARTS. 342343
ARTICLE 341 WHITE SLAVE TRADE
Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction Attempted Rape is absorbed by Forcible Abduction as the former constitutes the element of lewd design. If girl is under 12 – crime is ALWAYS FORCIBLE ABDUCTION even if she voluntarily goes with her abductor. Sexual intercourse is not necessary in forcible abduction. The intent to seduce the girl is sufficient. ARTICLE 343 CONSENTED ABDUCTION
Elements: 1. That the offended party must be a virgin; 2. That she must be over 12 and under 18 years if age; 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender; 4. That the taking away of the offended party
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS must be with lewd designs. Crimes against Chastity where age and reputation of the victim are immaterial: 1. Acts of lasciviousness against the will of the offended party or against a sister or descendant. 2. Qualified Seduction of sister or descendant. 3. Forcible Abduction. CHAPTER FIVE: PROVISIONS RELATING TO THE PRECEDING CHAPTERS OF TITLE ELEVEN (ARTS. 344-346) ARTICLE 344 PROSECUTION OF THE CRIMES OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS 1. Adultery and concubinage must be prosecuted upon the complaint signed by the offended spouse (and in the absence of an express or implied pardon). 2. Seduction, abduction and acts of lasciviousness must be prosecuted upon the complaint signed by (and in the absence of an express pardon) offended party – i. Even if a minor ii. If of legal age and not incapacitated, only she can file complaint If a minor or incapacitated and refuses to file either of the next succeeding persons may file: a. Either of the parents b. Either of the grandparents whether paternal or maternal side c. Legal or judicial guardians d. The State, as parens patriae when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardians.
Pursuant to R.A. No. 8353, rape is now a crime against persons, which may be prosecuted de officio. In adultery and concubinage, the offended party must institute the criminal prosecution against both the guilty parties, if they are alive. The right to file the action granted to the parent, grandparent or guardian shall be exclusive of all other persons and shall be exercised successively in the order provided by law. Pardon in adultery and concubinage
must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. Pardon in seduction must also come before the institution of the criminal action. Condonation is not pardon in concubinage or adultery – any subsequent act of the offender showing that there was no repentance will not bar the prosecution of the offense.
Pardon by the offended party who is a minor must have the concurrence of parents – except when the offended party has no parents. Marriage of the offender with the offended party in seduction, abduction and acts of lasciviousness extinguishes criminal action or remits the penalty already imposed, and it benefits the co-principals, accomplices and accessories. In rape, it extends only as to the principal.
ARTICLE 345 CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY Persons who are guilty of rape, seduction or abduction shall also be sentenced: 1. To indemnify the offended woman; 2. To acknowledge the offspring, EXCEPT: a. In adultery and concubinage since only a natural child may be acknowledged b. Where either the offended party or the accused is married c. When paternity cannot be determined as in multiple rape d. Other instances where the law should prevent the offender from doing so; In every case to support the offspring. Note: Under the Family Code, children are classified as only either legitimate or illegitimate, with no further positive act required from the parent, as the law itself provides the child’s status. Natural children under the Civil Code fall within the classification of illegitimate children under the Family Code.
Art. 176 of the Family Code confers parental authority over illegitimate children on the mother and provides their entitlement to support in conformity with the Family Code.
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CRIMINAL LAW BOOK TWO ARTICLE 346 LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS, OR OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, acts of lasciviousness, acts of lasciviousness with the consent of the offended party, corruption of minors, white slave trade: 1. Ascendants, 2. Guardians, 3. Curators, teachers, and 4. Any person, who cooperates as accomplice with abuse of authority or confidential relationship. Persons who act as accomplices in crimes against chastity (EXCEPT adultery and concubinage where there can be no accomplices or accessories), shall be punished as principals. In addition, teachers or persons entrusted with education and guidance of the youth are penalized with disqualification. Furthermore, all those falling within the terms of this article shall be punished with special disqualification from the office of guardian. TITLE TWELVE: CRIMES AGAISNT THE CIVIL STATUS OF PERSONS
The unlawful sale of the child by its father was held to be not punishable under this Code (US vs. Capillo et. al., 30 Phil 349). Now, it is punishable under PD 603, with its Art. 59(3) which imposes 2-6 months imprisonment and/or P500.00 fine. Furthermore, if the accused shall engage in trading and dealing with children, including the act of buying and selling of child, that crime of child trafficking is punished with reclusión temporal to reclusión perpetua under Sec 7, R.A. No. 7610. In the third way of committing this crime, three requisites must be present, namely: 1. The child must be legitimate; 2. The offender conceals or abandons such child; and 3. The offender has the intent to cause such child to lose its civil status. Note: Abandoning means to leave a child in a public place where other people may find the child. Art. 276 (Abandoning distinguished from Art. 347 Art. 276 Crime against security.
CHAPTER ONE: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS
The offender must be the one who has the custody of the child.
ARTICLE 347 SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD Acts punished: 1. Simulation of births; 2. Substitution of one child for another; and 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status. Object of the crime under Art. 347 is the creation of false or the causing of the loss of civil status. Simulation of births take place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own. The operative act in the simulation is the registration of the child in the registry of
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births as the pretending parents own. The simulation which is a crime is that which alters the civil status of person. The woman who simulates birth and the one who furnishes the child are both liable as principals.
The purpose of the offender is to avoid the obligation of rearing and caring for the child.
a
Minor)
Art. 347 Crime against the civil status of a person. The offender is any person. The purpose is to cause the child to lose its civil status.
ARTICLE 348 USURPATION OF CIVIL STATUS
Usurping the civil status of another is committed by assuming the filiation, or the parental or conjugal rights of another with intent to enjoy the rights arising from the civil status of the latter. Crime is qualified if the purpose is to defraud offended parties and heirs. It is absolutely necessary in order to constitute this crime that the intent of the offender is to enjoy the rights arising from the civil status of the person impersonated. Otherwise, the case will
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS only be a violation of Art. 178 for using a fictitious name, or as estafa under Art 315.
constructive notice cannot apply. (Regalado, Criminal Law Conspectus).
Example, where the intent of such usurpation is merely to enjoy or use the usurped civil rights, as by using another’s license or getting a cedula in another’s name, to avoid military service or to get a passport, it would not be punishable under this article (II Cuello Calon, Codigo Penal, th 10 edition, p. 670). The offender could be liable for using fictitious name (Art. 178) or estafa if he intended to defraud third persons (Art. 315), or possibly perjury or falsification depending on the acts he performed in connection with his intended offense.
ARTICLE 350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS (Illegal Marriage) Elements: 1. That the offender contracted marriage 2. That he knew at the time that a. The requirements of the law were not complied with; or b. The marriage was in disregard of a legal impediment.
The offender must not be guilty of bigamy. QUALIFYING CIRCUMSTANCE: if either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud.
Conviction of a violation of Art. 350 involves moral turpitude. The respondent is disqualified from being admitted into the bar.
CHAPTER TWO: ILLEGAL MARRIAGES (ARTS. 349-352) ARTICLE 349 BIGAMY Elements: 1. That the offender is legally married; 2. That the marriage has not been dissolved or, in case the spouse is absent the absent spouse could not yet be presumed dead according to the Civil Code; 3. That he contracts a second marriage or subsequent marriage; and 4. That the second or subsequent marriage has all the essential requisites for validity.
First marriage must be valid. If it is void or voidable, bigamy may still be committed if there is no judicial declaration of nullity or annulment of the first marriage. Bigamy is a public crime, thus, its prosecution may be initiated by anyone. A person convicted of bigamy may still be prosecuted for concubinage. The death of the first spouse during the pendency of the bigamy case does not extinguish the crime, because when the accused married the second spouse the first marriage was still subsisting. The second spouse who knew of the first marriage is an accomplice, as well as the person who vouched for the capacity of either of the contracting parties. The prescriptive period for the crime of bigamy does not commence from the commission thereof but from the time of its discovery by the complainant spouse. While, it may be conceded that the bigamous marriage was celebrated publicly in church and recorded in the Office of the Civil Registrar, the rule on
ARTICLE 351 PREMATURE MARRIAGES Persons liable: 1. A widow who married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death. 2. A woman whose marriage having been annulled or dissolved, married before delivery or before expiration of the period of 301 days after the date of legal separation.
Period may be disregarded if the first husband was impotent or sterile or if the woman was pregnant before the death of the first husband and gave birth within the said period. The period of 301 day is important only in cases where the woman is not pregnant, or does not know that she is pregnant at the time she becomes a widow. If she is pregnant at the time she becomes a widow, the prohibition is good only up to delivery.
Since the purpose of this article is to avoid cases of doubtful paternity, the woman will not be liable thereunder if: (a) she has already delivered; and (b) she has conclusive proof that she was not pregnant by her first spouse since he was permanently sterile (People vs. Masinsin, CA, 49 OG 3908).
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CRIMINAL LAW BOOK TWO ARTICLE 352 PERFORMANCE OF ILLEGAL MARRIAGES
Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any legal marriage ceremony shall be punished under the Marriage Law.
Art. 352 presuppose that the priest or minister or civil authority is authorized to solemnize marriages. If the accused is not authorized to solemnize marriage and he performs an illegal marriage ceremony, he is liable under Art. 177 (usurpation of authority or public function).
The solemnizing officer of any of the foregoing illegal marriages who performs or authorizes the same, despite his knowledge of the illegality, shall be punishable under Sec. 39 of Act No. 3613. TITLE THIRTEEN: CRIMES AGAINST HONOR CHAPTER ONE: LIBEL (ARTS. 353-362) SECTION ONE DEFINITIONS, FORMS, AND PUNISHMENT OF THIS CRIME ARTICLE 353 LIBEL Elements: 1. That, there must be an imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance; 2. That the imputation must be made publicly; 3. That it must be malicious; 4. That the imputation must be directed at a natural person or a juridical person, or one who is dead; 5. That the imputation must tend to cause the dishonor, discredit, or contempt of the person defamed. Test of defamatory imputation: A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach the honesty, virtue or reputation, or to hold him up to public ridicule.
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Notes: The meaning of the writer is immaterial If criminal intention is imputed against another, it is not considered libelous An expression of opinion by one affected by the act of another and based on actual fact is not libelous. Imputation may cover: 1. Crime allegedly committed by the offended party; 2. Vice or defect, real or imaginary, of the offended party; 3. Any act, omission, condition, status of, or circumstances relating to the offended party Dishonor – means disgrace, shame, ignominy Discredit – means loss of credit or reputation; disesteem. Contempt – means state of being despised. Publication: is the communication of the defamatory matter to some third person or persons. Thus, sending a letter containing defamatory words against another to a third person is sufficient publication. 2 types of malice: 1. Malice in fact – shown by proof of ill-will, hatred, or purpose to injure; also known as EXPRESS MALICE. 2. Malice in law – presumed to be malicious from the defamatory imputation even if it is true; proof is not required because it is presumed to exist from the defamatory imputation. When the communication is PRIVILEGED, malice is not presumed from the defamatory words. Malice (in fact) must be proved. Guidelines when several persons are defamed: 1. If the defamation is made on different occasions or by independent acts, there are as many crimes of libel as there are persons directly addressed with such statements or directly referred to. 2. If the defamation is made on a single occasion: a. Where the same was directed at a class or group of numerous persons in general terms only without any particular person being directly addressed, there is no victim identified or identifiable, hence no actionable libel. b. If the statement is so sweeping or all embracing as to apply to every
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS
c.
individual in that group or class so that each individual therein can prove that the defamatory statement specifically pointed to him, he can bring his action separately. If several identifiable victims are libeled in a single article, there are as many crimes of libel as there are persons defamed.
which are not of a confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; 2. That it is made in good faith; 3. That it is without any comments or remarks.
ARTICLE 354 REQUIREMENT FOR PUBLICITY Every Defamatory Imputation is Presumed to be Malicious, Even if it be True. The PRESUMPTION is rebutted if it is shown by the accused that – 1. The defamatory imputation is true, in case the law allows proof of the truth of the imputation (see Art. 361); 2. It is published with good intention; 3. There is justifiable motive for making it. MALICE is not presumed in the following cases involving qualifiedly privileged communication: 1. Private communication made by any person to another in the performance of any legal, moral or social duty. 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other proceedings which are not of confidential nature or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Requisites of the first kind of privileged communication: 1. That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld; 2. That the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter; 3. That the statements in the communication are made in good faith.
The defense of privileged communication will be over come if it is shown that (1) the defendant acted with malice in fact, or (2) there is no reasonable ground for believing the charge to be true.
Requisites of the second kind of privileged communication: 1. That it is fair and true report of a judicial, legislative, or other official proceedings
Therefore, qualified privileged communications must be made with malice and bad faith in order to be actionable. An absolutely privileged communication is not actionable even if made in bad faith. Specifically recognized in the Constitution as absolutely privileged are statements made in official proceedings of Congress by members thereof, as an implementation of their parliamentary immunity. Statements made in judicial proceedings are privileged but only if pertinent or relevant to the case involved. THE ANTI-WIRE TAPPING ACT (R.A. No. 4200)
Unlawful acts by any person or participant, not authorized by all the parties to any private communication or spoken word: 1. To tap any wire or cable. 2. To use any other device or arrangement to secretly overhear, intercept or record such communication by using a device known as dictaphone, dictagraph, detectaphone, walkie-talkie or tape-recorder. 3. To knowingly possess any tape/wire or disc record of any communication or spoken word or copies thereof. 4. To replay the same for any person or persons. 5. To communicate the contents thereof, verbally or in writing. 6. To furnish transcriptions thereof, whether complete or partial. Exception: When a peace officer authorized by written order from the court.
is
Any recording, communication or spoken word obtained in violation of the provisions of this Act – INADMISSIBLE IN EVIDENCE in any judicial, quasi-judicial or administrative hearing or investigation. ARTICLE 355 LIBEL BY MEANS OF WRITINGS OR SIMILAR MEANS Committed by means of: 1. Writing
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CRIMINAL LAW BOOK TWO 2. 3. 4. 5. 6. 7. 8. 9. 10.
Printing Lithography Engraving Radio Phonograph Painting Theatrical exhibition Cinematographic Or any similar means
Defamation through slander not libel.
amplifier
system
is
If defamatory remarks are made in the heat of passion which culminated in a threat, the derogatory statements will not constitute an independent crime of libel but a part of the more serious crime of threats. Administrative Circular No. 08-2008, issued on January 25, 2008, laid down a rule of preference for the imposition of a fine only rather than imprisonment in libel cases. The Administrative Circular provides that: 1. It does not remove imprisonment as an alternative penalty for the crime of libel under Article 355 of the Revised Penal Code; 2. The Judges may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. ARTICLE 356 THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION Acts punished: 1. Threatening another to publish a libel concerning him, or his parents, spouse, child or other members of the family. 2. Offering to prevent the publication of such libel for compensation or money consideration
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This is also known as blackmail. Art. 283 regarding light threats is another form of blackmail. Blackmail may be defined as any lawful
extortion of money by threats of accusation or exposure. It is essential that the threat to publish, or to offer to prevent the publication of libel must be for a compensation or money consideration, in order it may be penalized under this article. Blackmail is possible in the following crimes: a. Light threats. (Art 283) b. Threatening to publish, or offering to prevent the publication of, a libel for compensation. (Art 356) ARTICLE 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS
Elements: 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine; 2. He publishes facts connected with the private life of another; 3. Such facts are offensive to the honor, virtue and reputation of said person.
This article is referred to as the Gag Law because while a report of an official proceeding is allowed, it gags those who would publish therein facts which this article prohibits, and punishes any violation thereof. The Gag Law prohibits the publication of cases relating to adultery, divorce, legitimacy of children, etc.
Under Republic Act No. 1477: A newspaper reporter cannot be compelled to reveal the source of the news report he made, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the state. ARTICLE 358 SLANDER (oral defamation) Kinds: 1. Simple slander 2. Grave slander, when it is of a serious and insulting nature Factors that determine the gravity of the oral defamation: 1. Expressions used; 2. Personal relations of the accused and the offended party; 3. Circumstances surrounding the case; 4. Social standing and position of the offended party.
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The slander need not be heard by the offended party
Notes: Gossiping is considered as oral defamation if a defamatory fact is imputed or intriguing against honor if there is no imputation. Self-defense in slander may only be invoked if his reply is made in good faith, without malice, is not necessarily defamatory to his assailant and is necessary for his explanation or defense. ARTICLE 359 SLANDER BY DEED Slander by Deed– is a crime committed by performing any act which casts dishonor, discredit or contempt upon another person. Elements: 1. That the offender performs any act not included in any other crime against honor; 2. That such act is performed in the presence of other persons; 3. That such act cast dishonor, discredit, or contempt upon the offended party. If there is no intent to dishonor the offended party, the crime is maltreatment by deed under Article 266. Slander by deed is of two kinds: 1. Simple slander by deed, 2. Grave slander by deed, that is, which is of a serious nature.
Common Element of Slander by deed and Unjust Vexation: Irritation or Annoyance; without any other concurring factor, it is only Unjust Vexation; if the purpose is to shame or humiliate, Slander by deed.
An independent civil action may be filed simultaneously or separately in the same RTC where the criminal action was filed and vice versa. ARTICLE 361 PROOF OF TRUTH When proof of the truth is admissible in a charge for Libel: 1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. 2. When the offended party is a Government employee, even if the imputation does not constitute a crime, provided it is related to the discharge of his official duties.
The proof of truth of the accusation cannot be based upon mere hearsay, rumors or suspicion. It must be positive, direct evidence upon which a definite finding may be made by the court.
Defense in Defamation: 1. It appears that the matters charged as libelous is true; 2. It was published with good motives; AND 3. For a justifiable end. Incriminating Innocent Persons
Defamation
Offender does not avail himself of written or spoken word in besmirching the victim’s reputation.
Imputation is public and malicious calculated to cause dishonor, discredit, or contempt upon the offended party.
ARTICLE 362 LIBELOUS REMARKS
SECTION TWO: GENERAL PROVISIONS ARTICLE 360 PERSONS RESPONSIBLE FOR LIBEL 1. The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. 2. The author or editor of a book or pamphlet. 3. The editor or business manager of a daily newspaper magazine or serial publication. 4. The owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.
Libelous remarks or comments connected with the matter privileged under the provisions of Art. 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. CHAPTER TWO: INCRIMINATORY MACHINATIONS (ART. 363-364) ARTICLE 363 INCRIMINATING INNOCENT PERSONS Elements: 1. That the offender performs an act; 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime;
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CRIMINAL LAW BOOK TWO 3. That such act does not constitute perjury Incriminating Innocent Persons
Perjury by Making False Accusation
Limited to the act of planting evidence and the like in order to incriminate an innocent person.
Giving of false statement under oath or making a false affidavit, imputing to the person the commission of a crime.
It is committed by performing an act by which the offender directly incriminates or imputes to an innocent person the commission of a crime.
It is committed when the imputation was falsely made before an officer.
Committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another. This refers to such intrigues against a person’s honor or reputation which are not otherwise punished under other articles of the code. It differs from defamation in that it consists of tricky or secret plots and may be committed without using written or spoken words which are defamatory Defamation
Source of derogatory statements cannot be determined
Source is known
Consists of some tricky and secret plot
Committed in a public and malicious manner
Passes such utterances without subscribing to the truth of the remarks
The remarks made are claimed to be true
TITLE FOURTEEN: QUASI-OFFENSES SOLE CHAPTER: CRIMINAL NEGLIGENCE (ART. 365) ARTICLE 365 IMPRUDENCE AND NEGLIGENCE Four ways of committing quasi- offenses under Art 365: 1. By committing through reckless imprudence any act which, had it been intentional, would constitute a grave or
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Imprudence
Negligence
They are not crimes. They merely determine a lower degree of criminal liability. They are means of committing a crime.
ARTICLE 364 INTRIGUING AGAINST HONOR
Intriguing Against Honor
less grave felony or light felony; 2. By committing through simple imprudence or negligence an act which would otherwise constitute a grave or less serious felony; 3. By causing damage to the property of another through reckless imprudence or simple imprudence or negligence; 4. By causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony
Deficiency of action
Deficiency of perception
Failure in precaution
Failure in advertence
To avoid wrongful acts: one must take the necessary precaution once they are foreseen
To avoid wrongful acts: paying proper attention and using due diligence in foreseeing them
Reckless Imprudence – consists in voluntarily but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Elements: 1. That the offender does or fails to do an act. 2. That the doing of or the failure to do that act is voluntary. 3. That it be without malice. 4. That material damage results. 5. That there is inexcusable lack of precaution on the part of the person performing or failing to perform such act taking into consideration – a. Employment or occupation. b. Degree of intelligence, physical condition. and c. Other circumstances regarding persons, time and place. Test of negligence: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its
San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS mischievous results, and the failure to do so constitutes negligence. Simple Imprudence – consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.
suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice.
Elements: 1. That there is lack of precaution on the part of the offender. 2. That the damage impending to be caused is not immediate nor the danger clearly manifest. Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence. The defense of contributory negligence does not apply in criminal cases through reckless imprudence since one cannot allege negligence of another to evade the effects of one’s own negligence. The penalties provided for in Article 365 are NOT applicable when: 1. The penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of Art 365 2. By imprudence or negligence, and with violation of the Automobile Law, the death of a person shall be caused. Qualifying Circumstance: Failing to lend help. It raises the penalty one degree higher. Except: Sec. 55 of RA 4136, the driver can leave his vehicle without aiding the victims if: 1. He is in imminent danger of being harmed, 2. He wants to report to the nearest officer of the law, or 3. He desires to summon a physician or a nurse for medical assistance to the injured.
There must be injury to person or damage to property as a consequence of reckless or simple imprudence.
Doctrine of Last Clear Chance: The contributory negligence of the party injured will not defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. Emergency Rule: An automobile driver who, by the negligence of another and not by his own negligence, is
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