Criminal Law Book 2 Titles REVIEWER

1 Elements and Notes in Criminal Law Book II by RENE CALLANTA TITLE ONE CRIMES AGAINST NATIONAL SECURITY Crimes against national security 1.

Treason (Art. 114);

2.

Conspiracy and proposal to commit treason (Art. 115);

3.

Misprision of treason (Art. 116); and

4.

Espionage (Art. 117).

Crimes against the law of nations 1.

Inciting to war or giving motives for reprisals (Art. 118);

2.

Violation of neutrality (Art. 119);

3.

Corresponding with hostile country (Art. 120);

4.

Flight to enemy's country (Art. 121); and

5.

Piracy in general and mutiny on the high seas (Art. 122).

The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. Article 114 TREASON ELEMENTS: a. That the offender owes allegiance to the Government of the Philippines b.

That there is a war in which the Philippines is involved

c.

That the offender either –

1) Levies war against the government, 1. breech of allegiance 2. actual assembling of men 3. for the purpose of executing a treasonable design 2) Adheres to the enemies, giving them aid and comfort 1. breech of allegiance 2. adherence 3. giving aid or comfort to the enemy Requirements of levying war 1) Actual assembling of men; 2) To execute a treasonable design by force; 3) Intent is to deliver the country in whole or in part to the enemy; and 4) Collaboration with foreign enemy or some foreign sovereign Success is not important. What matters is the actual assembly of men and the execution of treasonable design by force. •

Ways of proving treason: a.

2 witnesses testifying to same overt act

The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.

b.

Confession of the accused in open court. Arraignment, pre-trial, trial – OK. 1. If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason. 2.

During trial, simply saying “I’m guilty” is not enough.

2 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3.

Withdrawing plea of “not guilty” during arraignment not necessary

4. If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough.

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Treason: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or an alien. Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating. Treason cannot be committed in times of peace, only in times of war – actual hostilities. But no need for declaration of war

Not Treasonous:

a.

Acceptance of public office and discharge of official duties under the enemy does not constitute per se the felony of treason (exception: when it is policy determining)

b.

Serving in a puppet government (ministerial functions) and in order to serve the populace is NOT treasonous. But it is treason if: a) there is discretion involved; b) inflicts harm on Filipinos; c) it is disadvantageous to them.

c.

Purpose of offender: to deliver the Philippines to enemy country; if merely to change officials – not treason

On Citizenship a. Filipino citizens can commit treason outside the Philippines. But that of an alien must be committed in the Philippines. b.

Only Filipino citizens or permanent resident aliens can be held liable

c.

Alien: with permanent resident status from the BID – it is neither the length of stay in the Philippines nor the marriage with a Filipino that matters.

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Actual hostilities may determine the date of the commencement of war

•

No such thing as attempted treason; mere attempt consummates the crime

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Giving aid or comfort – material element, enhances forces of the enemy country.

Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitor’s country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily “giving aid and comfort.”

• •

Adherence and giving aid or comfort must concur together. Adherence: when a citizen intellectually or emotionally favors the enemy and harbors convictions disloyal to his country’s policy. But membership in the police force during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the enemy.

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Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3) from the circumstances surrounding the act. When this adherence or sympathies are converted into aid and comfort, only then they take material forM. This material form is now what is made punishable. It is usually manifested by the offender in giving information, commandeering foodstuffs, serving as spy and supplying the enemy with war materials.

•

Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted.

Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one single time or at different times and only one criminal intent. In construing the provisions relating to the commission of several acts, the same must be done in pursuance or furtherance of the act of treason. No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.

•

If you convict a person for treason by reason of irresistible force or uncontrollable fear, you may use Art.12. No treason through negligence

In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused.

3 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government.

•

When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason.

In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes because such crimes are inherent to treason, being an indispensable element of the same. Treason distinguished from Rebellion. The manner in which both crimes are committed in the same. In treason however, the purpose of the offender is to deliver the government to the enemy country or to a foreign power. In rebellion, the purpose of the rebels is to substitute the government with their own form of government. No foreign power is involved. Treason distinguished from Sedition. In treason, the offender repudiates his allegiance to the government by means of force or intimidation. He does not recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted authorities. In sedition, the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a commotion or public uprising. Article 115 CONSPIRACY TO COMMIT TREASON •

ELEMENTS: a. In time of war b.

2 or more persons come to an agreement to 1. levy war against the government, or 2. adhere to the enemies and to give them aid or comfort,

c. •

They decide to commit it

ELEMENTS OF PROPOSAL TO COMMIT TREASON a. In time of war b. A person who has decided to levy war against the government, or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person/s.

•

Mere agreement and decisions to commit treason is punishable

•

Mere proposal even without acceptance is punishable too. If the other accepts, it is already conspiracy.

While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason. Article 116 MISPRISION OF TREASON •

ELEMENTS: a. b.

That the offender must be owing allegiance to the government, and not a foreigner That he has knowledge of any conspiracy (to commit treason) against the government

c. That he conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the Philippines. •

Offender is punished as an accessory to the crime of treason

Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two degrees lower than the penalty for the crime of treason. The criminal liability arises if the treasonous activity was still at the conspiratorial stage •

This crime does not apply if the crime of treason is already committed

•

Crime of omission

4 Elements and Notes in Criminal Law Book II by RENE CALLANTA This is a felony by omission although committed with dolo, not with culpa.

• •

“To report within a reasonable time” – depends on time, place and circumstance – the RPC did not fix time. RPC states 4 individuals, what if you report to some other high-ranking government official? Ex. PNP Director? Judge Pimentel says any gov’t official of the DILG is OK.

Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals.

Article 117 Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. •

ELEMENTS: a. 1. That the offender enters any of the places mentioned therein 2 3 2. That he has no authority therefore; b.

That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines

Under the first mode of committing espionage, the offender must have the intention to obtain information relative to the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private individual, whether an alien or a citizen of the Philippines, or a public officer. Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office 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

Purpose: to gather data

Under the second mode, the offender must be a public officer who has in possession the articles, data or information by reason of the office he holds. Taking advantage of his official position, he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines.

• •

•

Espionage: the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship. Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines. Wiretapping is NOT espionage if the purpose is not something connected with the defense

Commonwealth Act No. 616 – An Act to Punish Espionage and Other Offenses against National Security Acts punished 1.

Unlawfully obtaining or permitting to be obtained information affecting national defense;

2.

Unlawful disclosing of information affecting national defense;

3.

Disloyal acts or words in times of peace;

4.

Disloyal acts or words in times of war;

5.

Conspiracy to violate preceding sections;

6.

Harboring or concealing violators of law. and

7.

Photographing vital military information CRIMES AGAINST LAWS OF NATIONS

5 Elements and Notes in Criminal Law Book II by RENE CALLANTA In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. The acts against national security may be committed abroad and still be punishable under our law, but it can not be tried under foreign law. Article 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS •

ELEMENTS: a. That the offender performs unlawful or unauthorized acts b.

•

That such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property Crime is committed in time of peace, intent is immaterial

•

Inciting to war – offender is any person

•

Reprisals is not limited to military action, it could be economic reprisals, or denial of entry into their country.

Example. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal. Article 119 VIOLATION OF NEUTRALITY ELEMENTS: a.

That there is war in which the Philippines is not involved

b. That there is a regulation issued by competent authority for the purpose of enforcing neutrality c. •

That the offender violates such regulation

Gov’t must have declared the neutrality of the Phil in a war between 2 other countries

The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war between different countries in which the Philippines is not taking sides. •

It is neutrality of the Phil that is violated

•

Congress has the right to declare neutrality

The violations can be done either by means of dolo or by means of culpa. So violation of neutrality can be committed through reckless imprudence. Article 120 CORRESPONDENCE WITH HOSTILE COUNTRY ELEMENTS: a.

That it is in time of war in which the Philippines is involved

b. That the offender makes correspondence with an enemy country or territory occupied by enemy troops c.

That the correspondence is either – 1.

prohibited by the government, or

2.

carried on in ciphers or conventional signs, or

3.

containing notice or information which might be useful to the enemy

• 1 2 3

Circumstances qualifying the offense: a. notice or information might be useful to the enemy

•

Hostile country exist only during hostilities or after the declaration of war

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Correspondence to enemy country – correspondence to officials of enemy country – even if related to you.

•

It is not correspondence with private individual in enemy country

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If ciphers were used, no need for prohibition

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If ciphers were not used, there is a need for prohibition

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In any case, it must be correspondence with the enemy country

b. offender intended to aid the enemy

6 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Doesn’t matter if correspondence contains innocent matters – if prohibited, punishable

Article 121 FLIGHT TO ENEMY’S COUNTRY •

ELEMENTS a.

That there is a war in which the Philippines is involved

b.

That the offender (Filipino or resident alien) must be owing allegiance to the government

c.

That the offender attempts to flee or go to enemy country

d.

That going to enemy country is prohibited by competent authority

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Mere attempt consummates the crime

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There must be a prohibition. If none, even if went to enemy country – no violation

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Alien resident may be guilty here.

Article 122 PIRACY •

2 Ways of Committing Piracy a. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532) b. By seizing the whole or part of the cargo of said vehicles, its equipment or personal belongings of its complement or passengers

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Elements: a.

That a vessel is on the high seas/Philippine waters

b.

That the offenders are not members of its complement or passengers of the vessel

c.

That the offenders –

1.

attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not piracy but robbery in the high seas) 2. seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers

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High seas: any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign gov’t

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Piracy in high seas – jurisdiction is with any court where offenders are found or arrested

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Piracy in internal waters – jurisdiction is only with Philippine courts

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For purpose of Anti-Fencing Law, piracy is part of robbery and theft

Piracy Robbery or forcible degradation on the high seas, without lawful authority and done with animo lucrandi and in the spirit and intention of universal hostility.

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

Intent to gain is an element. Attack from outside. Offenders are strangers to the vessel.

No criminal intent Attack from the inside.

• •

under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. If in the Phil. waters still piracy

However, despite the amendment, P.D. No. 532 may still apply where the offender is not stranger to the vessel since it provides: “Any attack upon or seize of any vessel, or the taking away of the whole of part thereof or its cargo, equipment or the personal belongings of its complement or passengers, irrespective of the value hereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided.” After all, under the Revised Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel. •

While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its cargo, equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy.

7 Elements and Notes in Criminal Law Book II by RENE CALLANTA Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of Presidential Decree No. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. 532. Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. It cannot co-exist with the crime of robbery. Robbery, therefore, cannot be committed on board a vessel. But if the taking is without violence or intimidation on persons or force upon things, the crime of piracy cannot be committed, but only theft.

Elements of mutiny 1) The vessel is on the high seas or Philippine waters; 2) Offenders are either members of its complement, or passengers of the vessel; 3) Offenders either – a.

attack or seize the vessel; or

b.

seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers.

Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander. Article 123 QUALIFIED PIRACY •

QUALIFYING CIRCUMSTANCES: a. Whenever they have seized a vessel by boarding or firing upon the same b.

Whenever the pirates have abandoned their victims without means of saving themselves

c. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (the above may result to qualified mutiny) Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. •

Parricide/infanticide should be included (Judge Pimentel)

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Murder/rape/homicide/physical injuries must have been committed on the passengers or complement

In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485) The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating circumstances will be ignored by the court. Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1)

When the offenders abandoned the victims without means of saving themselves; or

(2)

When the mutiny is accompanied by rape, murder, homicide, or physical injuries.

Note that the first circumstance which qualifies piracy does not apply to mutiny. Republic Act No. 6235 (The Anti Hi-Jacking Law) Anti hi-jacking is another kind of piracy which is committed in an aircraft. In other countries, this crime is known as aircraft piracy. Four situations governed by anti hi-jacking law:

8 Elements and Notes in Criminal Law Book II by RENE CALLANTA (1)

usurping or seizing control of an aircraft of Philippine registry while it is in flight, compelling the pilots thereof to change the course or destination of the aircraft;

(2)

usurping or seizing control of an aircraft of foreign registry while within Philippine territory, compelling the pilots thereof to land in any part of Philippine territory;

(3)

carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Philippines, any flammable, corrosive, explosive, or poisonous substance; and

(4)

loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the Air Transportation Office on this matter.

Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hijacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, it should be in flight at the time of the hi-jacking. Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyro-techniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special laws will apply. On the other hand, if the aircraft is of foreign registry, the law does not require that it be in flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi-jacking law will already govern. Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started.

Questions & Answers 1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem does not say that all exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in flight. Note, however, that there is no hi-jacking in the attempted stage. attempted stage is not punishable.

This is a special law where the

2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply? No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended, the law will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine registry. 3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger manifest, two of its passengers seated near the pilot surreptitiously entered the pilot cockpit. At gunpoint, they directed the pilot to fly the aircraft to the Middle East. However, before the pilot could fly the aircraft towards the Middle East, the offenders were subdued and the aircraft landed. What crime was committed? The aircraft was not yet in flight. Considering that the stewardess was still waiting for the passenger manifest, the doors were still open. Hence, the anti hi-jacking law is not applicable. Instead, the Revised Penal Code shall govern. The crime committed was grave coercion or grave threat, depending upon whether or not any serious offense violence was inflicted upon the pilot. However, if the aircraft were of foreign registry, the act would already be subject to the anti hi-jacking law because there is no requirement for foreign aircraft to be in flight before such law would apply. The reason for the distinction is that as long as such aircraft has not returned to its home base, technically, it is still considered in transit or in flight. As to numbers 3 and 4 of Republic Act No. 6235, the distinction is whether the aircraft is a passenger aircraft or a cargo aircraft. In both cases, however, the law applies only to public utility aircraft in the Philippines. Private aircrafts are not subject to the anti hi-jacking law, in so far as transporting prohibited substances are concerned.

9 Elements and Notes in Criminal Law Book II by RENE CALLANTA If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited, flammable, corrosive, or explosive substance is a crime under Republic Act No. 6235. But if the aircraft is only a cargo aircraft, the law is violated only when the transporting of the prohibited substance was not done in accordance with the rules and regulations prescribed by the Air Transportation Office in the matter of shipment of such things. The Board of Transportation provides the manner of packing of such kind of articles, the quantity in which they may be loaded at any time, etc. Otherwise, the anti hi-jacking law does not apply. However, under Section 7, any physical injury or damage to property which would result from the carrying or loading of the flammable, corrosive, explosive, or poisonous substance in an aircraft, the offender shall be prosecuted not only for violation of Republic Act No. 6235, but also for the crime of physical injuries or damage to property, as the case may be, under the Revised Penal Code. There will be two prosecutions here. Other than this situation, the crime of physical injuries will be absorbed. If the explosives were planted in the aircraft to blow up the aircraft, the circumstance will qualify the penalty and that is not punishable as a separate crime for murder. The penalty is increased under the anti hi-jacking law. All other acts outside of the four are merely qualifying circumstances and would bring about higher penalty. Such acts would not constitute another crime. So the killing or explosion will only qualify the penalty to a higher one. Questions & Answers 1. were committed?

In the course of the hi-jack, a passenger or complement was shot and killed. What crime or crimes

The crime remains to be a violation of the anti hi-jacking law, but the penalty thereof shall be higher because a passenger or complement of the aircraft had been killed. The crime of homicide or murder is not committed. 2. were committed?

The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime or crimes

Again, the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not committed. This is considered as a qualifying circumstance that shall serve to increase the penalty. TITLE TWO CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Crimes against the fundamental laws of the State 1.

Arbitrary detention (Art. 124);

2.

Delay in the delivery of detained persons to the proper judicial authorities (Art. 125);

3.

Delaying release (Art. 126);

4.

Expulsion (Art. 127);

5.

Violation of domicile (Art. 128);

6.

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

7.

Searching domicile without witnesses (Art. 130);

8.

Prohibition, interruption, and dissolution of peaceful meetings (Art. 131);

9.

Interruption of religious worship (Art. 132); and

10.

Offending the religious feelings (Art. 133);

Under this title, the offenders are public officers, except as to the last crime – offending the religious feelings under Article 133, which refers to any person. The public officers who may be held liable are only those acting under supposed exercise of official functions, albeit illegally. But private persons may also be liable under this title as when a private person conspires with a public officer. What is required is that the principal offender must be a public officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private person also becomes liable for the same crime. But a private person acting alone cannot commit the crimes under Article 124 to 132 of this title. Classes of Arbitrary Detention: a. By detaining a person without legal ground b. Delay in the delivery of detained persons to the proper judicial authorities c. Delaying release Article 124 ARBITRARY DETENTION •

ELEMENTS:

a.

That the offender is a public officer or employee (whose official duties include the authority to make an arrest and detain persons; jurisdiction to maintain peace and order).

b.

That he detains a person (actual restraint).

10 Elements and Notes in Criminal Law Book II by RENE CALLANTA c. •

That the detention was without legal grounds (cannot be committed if with warrant).

Detention: when a person is placed in confinement or there is a restraint on his person.

Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. So, if the offender does not possess such authority, the crime committed by him is illegal detention. •

Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can also be liable.

In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary. •

Legal grounds for the detention of any person: a. commission of a crime b.

violent insanity or other ailment requiring compulsory confinement of the patient in a hospital

c.

escaped prisoner

When the peace officers acted in good faith even if the three (3) grounds mentioned above are not obtaining, there is no Arbitrary Detention. •

Without legal grounds: a. he has not committed any crime or no reasonable ground of suspicion that he has committed a crime b.

•

Grounds for warrantless arrest: a. Crime is about to be, is being, has been committed in his presence b.

• •

not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital

Officer must have probable cause to believe based on personal knowledge of facts and circumstances that the person probably committed the crime

For escaped prisoner – no need for warrant Example: Y was killed by unknown assailant. Officers got a tip and arrested X. X voluntarily admitted to the officers that he did it although he was not asked. X was detained immediately. According to the SC, there was NO arbitrary detention. Why? Because once X made a confession, the officers had a right to arrest him.

Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa) Periods of Detention penalized: 1. Detention not exceeding three days; 2. Detention for more than three days but not more than 15 days; 3. Detention for more than 15 days but not more than 6 months; and 4. Detention for more than 6 months. •

Continuing crime is different from a continuous crime

•

Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a warrant because this is a continuing crime. Distinction between arbitrary detention and illegal detention 1.

In arbitrary detention -The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this crime, or become an accomplice or accessory to the crime committed by the public officer; and The offender who is a public officer has a duty which carries with it the authority to detain a person.

2.

In illegal detention -The principal offender is a private person. But a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an accomplice or accessory to the crime committed by a private person. The offender, even if he is a public officer, does not include as his function the power to arrest and detain a person, unless he conspires with a public officer committing arbitrary detention.

11 Elements and Notes in Criminal Law Book II by RENE CALLANTA Whether the crime is arbitrary detention or illegal detention, it is necessary that there must be an actual restraint of liberty of the offended party. If there is no actual restraint, as the offended party may still go to the place where he wants to go, even though there have been warnings, the crime of arbitrary detention or illegal detention is not committed. There is either grave or light threat. However, if the victim is under guard in his movement such that there is still restraint of liberty, then the crime of either arbitrary or illegal detention is still committed. Distinction between arbitrary detention and unlawful arrest (1)

As to offender In arbitrary detention, the offender is a public officer possessed with authority to make arrests. In unlawful arrest, the offender may be any person.

(2)

As to criminal intent In arbitrary detention, the main reason for detaining the offended party is to deny him of his liberty. In unlawful arrest, the purpose is 1) to accuse the offended party of a crime he did not commit; 2) to deliver the person to the proper authority; and 3) to file the necessary charges in a way trying to incriminate him.

When a person is unlawfully arrested, his subsequent detention is without legal grounds. Article 125 DELAY IN THE DELIVERY OF DETAINED PERSONS •

ELEMENTS: a. That the offender is a public officer or employee b.

That he has detained a person for some legal grounds

c.

That he fails to deliver such person to the proper judicial authority within:

1. 2. 3.

12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent 18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or

36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent Article 125 covers situations wherein the person detained has been arrested without a warrant but his arrest is nonetheless lawful. It is a felony committed by omission because of the failure of the offender to deliver the detained person to the proper judicial authority within 12 hours, 18 hours and 36 hours as the case may be. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the detention becomes arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case may be, depending on whether the crime is punished by light, correctional or afflictive penalty or their equivalent. • •

Really means delay in filing necessary information or charging of person detained in court. May be waived if a preliminary investigation is asked for.

Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer be liable for violation of Article 125. •

Does not contemplate actual physical delivery but at least there must be a complaint filed. Duty complied with upon the filing of the complaint with the judicial authority (courts, prosecutors – though technically not a judicial authority, for purposes of this article, he’s considered as one.)

Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial authority. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Chief of Police). •

The filing of the information in court does not cure illegality of detention. Neither does it affect the legality of the confinement under process issued by the court.

•

To escape from this, officers usually ask accused to execute a waiver which should be under oath and with assistance of counsel. Such waiver is not violative of the accused constitutional right.

• •

What is length of waiver? Light offense – 5 days. Serious and less serious offenses – 7 to 10 days. (Judge Pimentel) Article does not apply when arrest is via a warrant of arrest

Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority?

12 Elements and Notes in Criminal Law Book II by RENE CALLANTA A. There is no time limit specified except that the return must be made within a reasonable time. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.

•

If offender is a private person, crime is illegal detention

•

Before Article 125 may be applied, it is necessary that initially, the detention of the arrested person must be lawful because the arrest is based on legal grounds. If the arrest is made without a warrant, this constitutes an unlawful arrest. Article 269(unlawful arrest), not Article 125, will apply. If the arrest is not based on legal grounds, the arrest is pure and simple arbitrary detention. Article 125 contemplates a situation where the arrest was made without warrant but based on legal grounds. This is known as citizen’s arrest.

•

A police officer has no authority to arrest and detain a person on the basis merely of the complaint of the offended party, even if after investigation he becomes convinced that the accused is guilty of the offense charged. What the complainant may do is to file a complaint with the court and ask for the issuance of a warrant of arrest.

Arbitrary Detention (124) Detention is illegal from the beginning.

Delay in Delivery of Detained (125) Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority.

Article 126 DELAYING RELEASE ELEMENTS: a.

That the offender is a public officer or employee

b. 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 c.

•

That the offender without good reason delays: 1.

the service of the notice of such order to the prisoner, or

2. 3.

the performance of such judicial or executive order for the release of the prisoner, or the proceedings upon a petition for the release of such person

Three acts are punishable: a. delaying the performance of a judicial or executive order for the release of a prisoner b.

delaying the service of notice of such order to said prisoner

c.

delaying the proceedings upon any petition for the liberation of such person

•

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

•

Provision does not include legislation

Article 127 EXPULSION ELEMENTS: a.

•

That the offender is a public officer or employee

b.

That he expels any person from the Philippines, or compels a person to change his residence

c.

That the offender is not authorized to do so by law

2 acts punishable: a. by expelling a person from the Philippines b.

by compelling a person to change his residence

The essence of this crime is coercion but the specific crime is “expulsion” when committed by a public officer. If committed by a private person, the crime is grave coercion. In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence. In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been charged with any crime at all. It was held that the crime committed was expulsion. •

Does not include undesirable aliens; destierro; or when sent to prison Questions & Answers

13 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed? Yes. Expulsion. 2.

If a Filipino citizen is sent out of the country, what crime is committed?

Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to aliens. •

If X (Filipino) after he voluntarily left, is refused re-entry – is considered forcing him to change his address here

•

Threat to national security is not a ground to expel or change his address.

Article 128 VIOLATION OF DOMICILE ELEMENTS: a.

That the offender is a public officer or employee

b. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects c.

That he commits any of the following acts: 1.

entering any dwelling against the will of the owner thereof

2.

searching papers or other effects found therein without the previous consent of such owner

3. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same

•

Aggravating Circumstance (medium and maximum of penalty imposed): a. Offense committed at nighttime b.

Papers or effects not constituting evidence of a crime be not returned immediately

In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent of the owner, the crime of violation of domicile is not committed. The prohibition may be expressed or implied. If the signs “Do not enter” and “Strangers keep out” are posted in front of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition. The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons, any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass to dwelling or violation of domicile cannot be committed.

• • •

• •

If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280) When a public officer searched a person “outside his dwelling” without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287) A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is having unlawful possession of opium Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be liable for violation of domicile. 3 acts punishable: a. person enters dwelling w/o consent or against the will In the plain view doctrine, public officer should be legally entitled to be in the place where the effects were found. If he entered the place illegally and he saw the effects, doctrine inapplicable; thus, he is liable for violation of domicile. b.

person enters and searches for papers and effects Public officer who enters with consent searches for paper and effects without the consent of the owner. Even if he is welcome in the dwelling, it does not mean he has permission to search.

c.

person entered secretly and refuses to leave after being asked to The act punished is not the entry but the refusal to leave. If the offender upon being directed to leave, followed and left, there is no crime of violation of domicile. Entry must be done surreptitiously; without this, crime may be unjust vexation. But if entering was done against the will of the occupant of the house, meaning there was express or implied prohibition from entering the same, even if the occupant does not

14 Elements and Notes in Criminal Law Book II by RENE CALLANTA direct him to leave, the crime of violation of domicile is already committed because it would fall in number 1.

•

“Being authorized by law” – means with search warrant, to save himself or do some things good for humanity

There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not be admissible in evidence. (1)

Search made incidental to a valid arrest;

(2)

Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant;

(3)

When the article seized is within plain view of the officer making the seizure without making a search therefore.

•

Papers and effects need not be part of a crime.

Article 129 SEARCH WARRANTS MALICIOUSLY OBTAINED 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

In order that a search warrant may be issued, it must be based on probable cause in connection with one offense, to be determined by a judge after examination under oath of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

This means there was no probable cause determined in obtaining the search warrant.

•

Although void, the search warrant is entitled to respect because of presumption of regularity. One remedy is a motion to quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for perjury, because for him to succeed in obtaining a search warrant without a probable cause, he must have perjured himself or induced someone to commit perjury to convince the court.

The true test of lack of just cause is whether the sworn statement filed in support of the application for search warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making such false statement. The oath required refers to the truth of the facts within the personal knowledge of the applicant and his witnesses. ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR 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 valid for 10 days from its date Search warrant is an order in writing issued in the name of the People, signed by the judge and directed to a public officer, commanding him to search for personal property described therein and bring it before the court

•

No just cause – warrant is unjustified

•

Search – limited to what is described in the warrant, all details must be with particularity

The officer exceeded his authority under the warrant – To illustrate, let us say that there was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but the name of person in the search warrant did not tally with the address stated. Eventually, the person with the same name was found but in a different address. The occupant resisted but the public officer insisted on the search. Drugs were found and seized and occupant was prosecuted and convicted by the trial court. The Supreme Court acquitted him because the public officers are required to follow the search warrant to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. Since the entry was illegal, plain view doctrine does not apply.

• •

Malicious warrant. Example. X was a respondent of a search warrant for illegal possession of firearms. A return was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. Abuse examples: a. X owner was handcuffed while search was going-on.

15 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

Tank was used to ram gate prior to announcement that a search will be made The search warrant is not a license to commit destruction.

c.

Persons who were not respondents were searched

Article 130 SEARCHING DOMICILE WITHOUT WITNESSES •

ELEMENTS : a.

That the offender is a public officer or employee

b.

That he is armed with a search warrant legally procured

c.

That he searches the domicile, papers or other belongings of any person

d. That the owner, or any member of his family, or two witnesses residing in the same locality are not present •

•

Order of those who must witness the search: a.

Homeowner

b.

Members of the family of sufficient age and discretion

c.

Responsible members of the community (can’t be influenced by the searching party)

Validity of the search warrant can be questioned only in 2 courts: 1) where issued or 2) where the case is pending. Latter is preferred for objective determination.

Article 130 has no application to search and seizure made on moving vehicles because the application of this law is limited to dwelling and personal properties such as papers and effects found therein. There are searches and seizures which are authorized by law and which can be done without the attendance of witnesses. For instance, the Tariff and Customs Code authorizes persons with police authority under Sec. 2203, to enter; pass through or search any land, enclosure, warehouse, store or building, not being used as a dwelling house; and to inspect, search and examine any vessel or aircraft, and any trunk, package, box or envelope, or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law. Article 131 PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS •

ELEMENTS: a. Offender is a public officer or employee b.

•

He performs any of the ff. acts:

1.

prohibiting or interrupting, without legal ground the holding of a peaceful meeting, or dissolving the same (e.g. denial of permit in arbitrary manner).

2.

hindering any person from joining any lawful association or from attending any of its meetings.

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

Two criteria to determine whether Article 131 would be violated: (1)

Dangerous tendency rule – applicable in times of national unrest such as to prevent coup d’etat.

(2)

Clear and present danger rule – applied in times of peace. Stricter rule.

•

If the offender is a private individual, the crime is disturbance of public order (Art 153)

•

Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or interrupting that meeting

• •

If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is not a license to commit a crime. Meeting is subject to regulation

If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the permit unless the meeting is held in a particular place which he dictates defeats the exercise of the right to peaceably assemble, Article 131 is violated. •

Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, it’s unjust vexation

16 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body, not punishable under this article

•

The person talking on a prohibited subject at a public meeting contrary to agreement that no speaker should touch on politics may be stopped

•

But stopping the speaker who was attacking certain churches in public meeting is a violation of this article

•

Prohibition must be without lawful cause or without lawful authority

•

Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for meetings in public places. But if police stops a meeting in a private place because there’s no permit, officer is liable for stopping the meeting.

Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article 131, and tumults and other disturbances, under Article 153 (1)

As to the participation of the public officer In Article 131, the public officer is not a participant. As far as the gathering is concerned, the public officer is a third party. If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same, Article 153 is violated if the same is conducted in a public place.

(2)

As to the essence of the crime In Article 131, the offender must be a public officer and, without any legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the assembly to petition a grievance against the government. In Article 153, the offender need not be a public officer. The essence of the crime is that of creating a serious disturbance of any sort in a public office, public building or even a private place where a public function is being held.

Article 132 INTERRUPTION OF RELIGIOUS WORSHIP •

ELEMENTS: a.

That the officer is a public officer or employee

b. That religious ceremonies or manifestations of any religion are about to take place or are going on c.

• • •

That the offender prevents or disturbs the same

Circumstance qualifying the offense: if committed with violence or threats Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion, but only a meeting of a religious sect. But if done in a private home, it’s a religious service Religious Worship: people in the act of performing religious rites for a religious ceremony; a manifestation of religion. Ex. Mass, baptism, marriage

•

X, a private person, boxed a priest while the priest was giving homily and while the latter was maligning a relative of X. Is X liable? X may be liable under Art 133 because X is a private person.

•

When priest is solemnizing marriage, he is a person in authority, although in other cases, he’s not.

Article 133 OFFENDING RELIGIOUS FEELINGS •

ELEMENTS: a. That the acts complained of were performed –

1. 2.

•

in a place devoted to religious worship, or (for this element, no need of religious ceremony, only the place is material) during the celebration of any religious ceremony

b.

That the acts must be notoriously offensive to the feelings of the faithful (deliberate intent to hurt the feelings)

c.

The offender is any person

d.

There is a deliberate intent to hurt the feelings of the faithful, directed against religious tenet

If in a place devoted to religious purpose, there is no need for an ongoing religious ceremony

17 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Example of religious ceremony (acts performed outside the church). Processions and special prayers for burying dead persons but NOT prayer rallies

•

Acts must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing or attempting to damage an object of religious veneration

•

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

In determining whether an act is offensive to the feelings of the faithful, the same must be viewed or judged from the standpoint of the offended religion and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).

CRIME Prohibition, Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship (132)

Nature of Crime Crime against the fundamental law of the state

Who are Liable Public officers, Outsiders

If Element Missing If not by public officer = tumults

Crime against the fundamental law of the state

Public Outsiders

officers,

Offending Religious (133)

Crime against public order

Public private outsiders

officers, persons,

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

the Feeling

TITLE THREE CRIMES AGAINST PUBLIC ORDER Crimes against public order 1.

Rebellion or insurrection (Art. 134); Coup d’ etat (Art. 134-A)

2.

Conspiracy and proposal to commit rebellion (Art. 136);

3.

Disloyalty to public officers or employees (Art. 137);

4.

Inciting to rebellion (Art. 138);

5.

Sedition (Art. 139);

6.

Conspiracy to commit sedition (Art. 141);

7.

Inciting to sedition (Art. 142);

8.

Acts tending to prevent the meeting of Congress and similar bodies (Art. 143);

9.

Disturbance of proceedings of Congress or similar bodies (Art. 144);

10.

Violation of parliamentary immunity (Art. 145);

11.

Illegal assemblies (Art. 146);

12.

Illegal associations (Art. 147);

13.

Direct assaults (Art. 148);

18 Elements and Notes in Criminal Law Book II by RENE CALLANTA 14.

Indirect assaults (Art. 149);

15.

Disobedience to summons issued by Congress, its committees, etc., by the constitutional commissions, its committees, etc. (Art. 150);

16.

Resistance and disobedience to a person in authority or the agents of such person (Art. 151);

17.

Tumults and other disturbances of public order (Art. 153);

18.

Unlawful use of means of publication and unlawful utterances (Art. 154);

19.

Alarms and scandals (Art. 155);

20.

Delivering prisoners from jails (Art. 156);

21.

Evasion of service of sentence (Art. 157);

22.

Evasion on occasion of disorders (Art. 158);

23.

Violation of conditional pardon (Art. 159); and

24.

Commission of another crime during service of penalty imposed for another previous offense (Art. 160).

Article 134 REBELLION OR INSURRECTION • ELEMENTS: a. That there be –

b.

1.

public uprising and

2.

taking arms against the government (force/violence)

That the purpose of the uprising or movement is either 1. to remove from the allegiance to said government or its laws – 4 5 i. the territory of the Philippines or any part thereof, or 6 7 ii. any body of land, naval or other armed forces, or 2

•

To deprive the chief executive or congress, wholly or partially, of any of their powers or prerogatives

Persons liable for rebellion

a.

Any person who:

b.

Any person who, while holding any public office or employment, takes part therein by: 1. engaging in war against the forces of the government

1. promotes 2. maintains, or 3. heads a rebellion or insurrection; or

2.

destroying property or committing serious violence

3.

exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated (Note: “diverting public funds” is malversation absorbed in rebellion);

4.

Any person merely participating or executing the command of others in rebellion

The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of people. It aims to overthrow the duly constituted government. It does not require the participation of any member of the military or national police organization or public officers and generally carried out by civilians. Lastly, the crime can only be committed through force and violence. The crime of rebellion cannot be committed by a single individual. Invariably, it is committed by several persons for the purpose of overthrowing the duly constituted or organized government. In the Philippines, what is known to the ordinary citizen as a symbol of Government would be the barangay, represented by its officials; the local government represented by the provincial and municipal officials; and the national government represented by the President, the Chief Justice and the Senate President and the Speaker of the House of Representatives.

•

Success is immaterial, purpose is always political

The crime of rebellion is essentially a political crime. The intention of the rebel is to substitute himself in place of those who are in power. His method of placing himself in authority with the use of violence, duress or intimidation, assassination or the commission of common crimes like murder, kidnapping, arson, robbery and other heinous crimes in what we call rebellion.

•

Rebellion used where the object of the movement is completely to overthrow and supersede the existing government

19 Elements and Notes in Criminal Law Book II by RENE CALLANTA • •

Insurrection refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of gov’t authority w/ respect to particular matters or subjects The phrase “to remove allegiance from the government’ is used to emphasize that the object of the uprising could be limited to certain areas, like isolating a barangay or municipality or a province in its loyalty to the duly constituted government or the national government.

Allegiance is a generic term which includes loyalty, civil obedience and civil service. The law on rebellion however, does not speak only of allegiance or loss of territory. It also includes the efforts of the rebel to deprive the President of the Philippines of the exercise of his power to enforce the law, to exact obedience of laws and regulations duly enacted and promulgated by the duly constituted authorities. •

Actual clash of arms w/ the forces of the gov’t, not necessary to convict the accused who is in conspiracy w/ others actually taking arms against the gov’t

•

Purpose of the uprising must be shown but it is not necessary that it be accomplished

•

A change of government w/o external participation

•

RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT – actual participation. If there is no public uprising, the crime is of direct assault.

When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form. But if there is rebellion, with public uprising, direct assault cannot be committed. •

Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing is not participation, there must be ACTUAL participation

There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in Article 134. The acts of the accused who is not a member of the Hukbalahap organization of sending cigarettes and food supplies to a Huk leader; the changing of dollars into pesos for a top level communist; and the helping of Huks in opening accounts with the bank of which he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7 SCRA 900). •

Not necessary that there is killing, mere threat of removing Phil is sufficient

Rebellion may be committed even without a single shot being fired. No encounter needed. Mere public uprising with arms enough. •

Rebellion cannot be complexed with any other crime.

Common crimes perpetrated in furtherance of a political offense are divested of their character as “common” offenses and assume the political complexion of the main crime which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same. ORTEGA OPINION: Rebellion can now be complexed with common crimes. Not long ago, the Supreme Court, in Enrile v. Salazar, 186 SCRA 217, reiterated and affirmed the rule laid down in People v. Hernandez, 99 Phil 515, that rebellion may not be complexed with common crimes which are committed in furtherance thereof because they are absorbed in rebellion. In view of said reaffirmation, some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes, such as killing and destruction of property, committed on the occasion and in furtherance thereof. This thinking is no longer correct; there is no legal basis for such rule now. The statement in People v. Hernandez that common crimes committed in furtherance of rebellion are absorbed by the crime of rebellion, was dictated by the provision of Article 135 of the Revised Penal Code prior to its amendment by the Republic Act No. 6968 (An Act Punishing the Crime of Coup D’etat), which became effective on October 1990. Prior to its amendment by Republic Act No. 6968, Article 135 punished those “who while holding any public office or employment, take part therein” by any of these acts: engaging in war against the forces of Government; destroying property; committing serious violence; exacting contributions, diverting funds for the lawful purpose for which they have been appropriated. Since a higher penalty is prescribed for the crime of rebellion when any of the specified acts are committed in furtherance thereof, said acts are punished as components of rebellion and, therefore, are not to be treated as distinct crimes. The same acts constitute distinct crimes when committed on a different occasion and not in furtherance of rebellion. In short, it was because Article 135 then punished said acts as components of the crime of rebellion that precludes the application of Article 48 of the Revised Penal Code thereto. In the eyes of the law then, said acts constitute only one crime and that is rebellion. The Hernandez doctrine was reaffirmed in Enrile v. Salazar because the text of Article 135 has remained the same as it was when the Supreme Court resolved the same issue in the People v. Hernandez. So the Supreme Court invited attention to this fact and thus stated: “There is a an apparent need to restructure the law on rebellion, either to raise the penalty therefore or to clearly define and delimit the other offenses to be considered absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is purely within its province.”

20 Elements and Notes in Criminal Law Book II by RENE CALLANTA Obviously, Congress took notice of this pronouncement and, thus, in enacting Republic Act No. 6968, it did not only provide for the crime of coup d’etat in the Revised Penal Code but moreover, deleted from the provision of Article 135 that portion referring to those – “…who, while holding any public office or employment takes part therein [rebellion or insurrection], engaging in war against the forces of government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated …” Hence, overt acts which used to be punished as components of the crime of rebellion have been severed therefrom by Republic Act No. 6968. The legal impediment to the application of Article 48 to rebellion has been removed. After the amendment, common crimes involving killings, and/or destructions of property, even though committed by rebels in furtherance of rebellion, shall bring about complex crimes of rebellion with murder/homicide, or rebellion with robbery, or rebellion with arson as the case may be. To reiterate, before Article 135 was amended, a higher penalty is imposed when the offender engages in war against the government. "War" connotes anything which may be carried out in pursuance of war. This implies that all acts of war or hostilities like serious violence and destruction of property committed on occasion and in pursuance of rebellion are component crimes of rebellion which is why Article 48 on complex crimes is inapplicable. In amending Article135, the acts which used to be component crimes of rebellion, like serious acts of violence, have been deleted. These are now distinct crimes. The legal obstacle for the application of Article 48, therefore, has been removed. Ortega says legislators want to punish these common crimes independently of rebellion. Ortega cites no case overturning Enrile v. Salazar. •

However, illegal possession of firearms in furtherance of rebellion is distinct from the crime of rebellion.

The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and absence of criminal intent are not valid defenses. •

• • •

Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal to commit such A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association are absorbed. Rape, even if not in furtherance of rebellion cannot be complexed If killing, robbing were done for private purposes or for profit, without any political motivation, the crime would be separately be punished and would not be embraced by rebellion (People v. Fernando) Person deemed leader of rebellion in case he is unknown: Any person who in fact: a. directed the others b. spoke for them c. signed receipts and other documents issued in their name d. performed similar acts on behalf of the rebels

Distinctions between rebellion and sedition (1)

As to nature In rebellion, there must be taking up or arms against the government. In sedition, it is sufficient that the public uprising be tumultuous.

(2)

As to purpose In rebellion, the purpose is always political.

In sedition, the purpose may be political or social. Example: the uprising of squatters against Forbes park residents. The purpose in sedition is to go against established government, not to overthrow it. Article 134-A COUP D’ ETAT • a.

ELEMENTS: Swift attack

b.

Accompanied by violence, intimidation, threat, strategy or stealth

c.

Directed against: 1.

duly constituted authorities

2.

any military camp or installation

3.

communication networks or public utilities 4.

other facilities needed for the exercise and continued possession of power

d. Singly or simultaneously carried out anywhere in the Philippines d. e.

Committed by any person or persons belonging to the military or police or holding any public office or employment; with or without civilian support or participation

With or without civilian support or participation

21 Elements and Notes in Criminal Law Book II by RENE CALLANTA f.

Purpose of seizing or diminishing state power

The essence of the crime is a swift attack upon the facilities of the Philippine government, military camps and installations, communication networks, public utilities and facilities essential to the continued possession of governmental powers. It may be committed singly or collectively and does not require a multitude of people.

•

The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. It requires as principal offender a member of the AFP or of the PNP organization or a public officer with or without civilian support. Finally, it may be carried out not only by force or violence but also through stealth, threat or strategy.

How do you distinguish between coup d’etat and rebellion? Rebellion is committed by any person whether a private individual or a public officer whereas in coup d’etat, the offender is a member of the military or police force or holding a public office or employment. In rebellion, the object is to alienate the allegiance of a people in a territory, whether wholly or partially, from the duly constituted government; in coup d’etat, the object or purpose is to seize or diminish state power. In both instances, the offenders intend to substitute themselves in place of those who are in power.

Nature

of C r i m e

Overt Acts

Purpose of objective

Treason (114)

Rebellion (134)

Coup d’etat (134-A) Crime against Public Order

Sedition (139)

Crime against National Security

Crime against Public Order

levying war against the gov’t; OR adherence and giving aid or comfort to enemies Deliver the gov’t to enemy during war

Public uprising AND Taking up arms against the gov’t

See article.

Rising publicly or tumultuously (caused by more than 3 armed men or provided with means of violence)

See article.

Seizing or diminishing state power.

See enumeration article.

Crime against Public Order

in

Article 135 PENALTIES •

Who are liable? a. Any person who: 1. Promotes 2. Maintains 3. heads a rebellion or insurrection b.

c.

Any person who, while holding any public office or employment, takes part therein 1. engaging in war against the forces of the gov’t 2.

destroying property or committing serious violence

3.

exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated

Any person merely participating or executing the command of other in a rebellion

When conspiracy is present in the commission of the crime, the act of one is the act of all. In committing rebellion and coup d’etat, even if conspiracy as a means to commit the crime is established, the principal of criminal liability under Article 17 of the Revised Penal Code is not followed. In Government Service Not in Government Service Anyone who leads, directs, commands others to undertake a Anyone who participates or in an manner, supports, finances, coup. abets, aids in a coup. •

Serious violence is that inflicted upon civilians, which may result in homicide. It is not limited to hostilities against the armed force.

•

Diverting public funds is malversation absorbed in rebellion NOTES: a.

Public officer must take active part because mere silence or omission not punishable in rebellion

b. It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government c. Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government

22 Elements and Notes in Criminal Law Book II by RENE CALLANTA Subversion, just like the crimes of rebellion, conspiracy or proposal to commit the crimes of rebellion or subversion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State and are in the nature of continuing crimes ( Umil vs. Ramos). d. Killing, robbing etc for private persons or for profit, without any political motivation, would be separately punished and would not be absorbed in the rebellion. Article 136 CONSPIRACY TO COMMIT COUP D’ ETAT, REBELLION OR INSURRECTION •

ELEMENTS: a.

2 more persons come to an agreement to rise publicly and take arms against the government

b.

For any of the purposes of rebellion

c.

They decide to commit it

PROPOSAL TO COMMIT COUP D’ ETAT, REBELLION OR INSURRECTION (136)

•

ELEMENTS: a.

A person who has decided to rise publicly and take arms the government

b.

For any of the purposes of rebellion

c.

Proposes its execution to some other person/s

•

Organizing a group of soldiers, soliciting membership in, and soliciting funds for the organization show conspiracy to overthrow the gov’t

•

The mere fact of giving and rendering speeches favoring Communism would not make the accused guilty of conspiracy if there’s no evidence that the hearers then and there agreed to rise up in arms against the gov’t

•

Conspiracy must be immediately prior to rebellion

•

If it is during the rebellion, then it is already taking part in it.

Article 137 DISLOYALTY OF PUBLIC OFFICERS AND EMPLOYEES •

ACTS PUNISHED: a. Failing to resist rebellion by all the means in their power b.

Continuing to discharge the duties of their offices under the control of rebels

c.

Accepting appointment to office under rebels

•

Presupposes existence of rebellion

•

Must not be in conspiracy with rebels or coup plotters

•

If there are means to prevent the rebellion but did not resist it, then there’s disloyalty. If there are no means, no fault

•

If position is accepted in order to protect the people, not covered by this

•

The collaborator must not have tried to impose the wishes of the rebels on the people.

Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup d’etat. Rebellion is essentially a crime committed by private individuals while coup d’etat is a crime that should be classified as a crime committed by public officers like malversation, bribery, dereliction of duty and violations of the anti-Graft and Corrupt Practices Act. If the public officer or employee, aside from being disloyal, does or commits acts constituting the crime of rebellion or coup d’etat, he will no longer be charged for the simple crime of disloyalty but he shall be proceeded against for the grave offense of rebellion or coup d’etat. Article 138 INCITING TO REBELLION OR INSURRECTION •

ELEMENTS: a. b.

That the offender does not take arms or is not in open hostility against the government That he incites others to the execution of any of the acts of rebellion

c. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end

23 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Intentionally calculated to seduce others to rebellion

•

There must be uprising to take up arms and rise publicly for the purposes indicated in Art 134

One who promotes, maintains or heads a rebellion and who act at the same time incites or influences others to join him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting to rebellion because, as the principal to the crime of rebellion, the act of inciting to commit a rebellion is inherent to the graver crime of rebellion. Proposal to Commit Rebellion (136) The person who proposes has decided to commit rebellion. The person who proposes the execution of the crime uses secret means.

Inciting to Rebellion (138) Not required that the offender has decided to commit rebellion. The inciting is done publicly.

Article 139 SEDITION •

• •

•

•

ELEMENTS: a. That the offenders rise –

1.

Publicly (if no public uprising = tumult and other disturbance of public order)

2.

Tumultuously (vis-à-vis rebellion where there must be a taking of arms)

b.

That they employ force, intimidation, or other means outside of legal methods

c.

That the offenders employ any of those means to attain any of the following objects: 1.

to prevent the promulgation or execution of any law or the holding of any popular election

2.

to prevent the national government, or any provincial or municipal government, or any public thereof from freely exercising its or his functions, or prevent the execution of any administrative order

3.

to inflict any act or hate or revenge upon the person or property of any public officer or employee

4.

to commit for any political or social end, any act of hate or revenge against private persons or any social class (hence, even private persons may be offended parties)

5.

to despoil, for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof

Sedition: raising of commotion or disturbances in the State. Its ultimate object is a violation of the public peace or at least such measures that evidently engenders it. The crime of sedition is committed by rising publicly and tumultuously. The two elements must concur. The crime of sedition does not contemplate the taking up of arms against the government because the purpose of this crime is not the overthrow of the government. Notice from the purpose of the crime of sedition that the offenders rise publicly and create commotion and disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. This is like the so-called civil disobedience except that the means employed, which is violence, is illegal. Difference from rebellion – object or purpose of the uprising.

For sedition – sufficient that uprising is tumultuous. In rebellion – there must be government.

taking up of arms against the

Sedition – purpose may be either political or social. In rebellion – always political “Tumultuous” is a situation wherein the disturbance or confusion is caused by at least four persons. There is no requirement that the offenders should be armed. • Preventing public officers from freely exercising their functions

•

In sedition – offender may be a private or public person (Ex. Soldier)

•

Public uprising and the object of sedition must concur

•

Q: Are common crimes absorbed in sedition?

In P v. Umali, SC held that NO. Crimes committed in that case were independent of each other. •

Preventing election through legal means – NOT sedition

•

But when sugar farmers demonstrated and destroyed the properties of sugar barons – sedition

•

Persons liable for sedition:

24 Elements and Notes in Criminal Law Book II by RENE CALLANTA a.

leader of the sedition, and

b.

other persons participating in the sedition

The objective of the law in criminalizing sedition is to put a limit to the freedom of expression or the right of the people to assemble and petition the government for redress of grievance. •

The demonstrations conducted or held by the citizenry to protest certain policies of the government is not a crime. But when the protest in manifested in the form of rallies where the participants, in order to attain their objective of overcoming the will of the government, resort to force or violence, the mantle of protection guaranteed under the Constitution to express their dissent peacefully, shall cease to exist, as in the meantime, the participants have encroached or stayed in the domain or realm of criminal law.

Article 141. Conspiracy to Commit Sedition In this crime, there must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition. There is no proposal to commit sedition. The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. It may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions, or to prevent the execution of an administrative order. Article 142 INCITING TO SEDITION •

ELEMENTS: a. b. (134)

That the offender does not take a direct part in the crime of sedition That he incites others to the accomplishment of any of the acts which constitute sedition

c.

•

•

That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end (purpose: cause commotion not exactly against the government; actual disturbance not necessary) Different acts of inciting to sedition: a. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems etc. b.

Uttering seditious words or speeches which tend to disturb the public peace or writing, publishing, or circulating scurrilous [vulgar, mean, libelous] libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace

c.

Knowingly concealing such evil practices

When punishable: a. when they tend to disturb or obstruct any lawful officer in executing the functions of his office; or b.

when they tend to instigate others to cabal and meet together for unlawful purposes; or

c.

when they suggest or incite rebellious conspiracies or riots; or

d.

when they lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government

Only non-participant in sedition may be liable. Inciting to sedition is an element of sedition. It cannot be treated as a separate offense against one who is a part of a group that rose up publicly and tumultuously and fought the forces of government. Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to sedition. Article 142 is, therefore, quite broad. The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Lambasting government officials to discredit the government is Inciting to sedition. But if the objective of such preparatory actions is the overthrow of the government, the crime is inciting to rebellion. CRIMES AGAINST POPULAR REPRESENTATION Article 143 ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES •

ELEMENTS: a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board b.

That the offender who may be any persons prevents such meeting by force or fraud

25 Elements and Notes in Criminal Law Book II by RENE CALLANTA The crime is against popular representation because it is directed against officers whose primary function is to meet and enact laws. When these legislative bodies are prevented from meeting and performing their duties, the system of government is disturbed. The three branches of government must continue to exist and perform their duties. •

Chief of Police and mayor who prevented the meeting of the municipal council are liable under Art 143, when the defect of the meeting is not manifest and requires an investigation before its existence can be determined.

Article 144 DISTURBANCE OF PROCEEDINGS •

ELEMENTS: a. That there be a meeting of Congress or any of its committees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board b.

That the offender does any of the following acts 1.

He disturbs any of such meetings

2. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it The disturbance can be in the form of utterances, speeches or any form of expressing dissent which is not done peacefully but implemented in such a way that it substantially interrupts the meeting of the assembly or adversely affects the respect due to the assembly of its members. •

Complaint must be filed by member of the Legislative body. Accused may also be punished for contempt.

Article 145 VIOLATION OF PARLIAMENTARY IMMUNITY •

Acts punishable: a. By using force, intimidation, threats, or frauds to prevent any member of Congress from –

b.

1.

attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof, or from

2.

expressing his opinions or

3.

casting his vote

By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ( 6 years up ) Elements: 1. That the offender is a public officer or employee 2.

That he arrests or searches any member of Congress

3.

That Congress, at the time of arrest or search, is in a regular or special session

4.

That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment). Under Section 11, Article VI of the Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145. According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher." The offender is any person and the offended party who is a member of Congress, has not committed any crime to justify the use of force, threat, intimidation or fraud to prevent him from attending the meeting of Congress. ILLEGAL ASSEMBLIES AND ASSOCIATIONS Article 146 ILLEGAL ASSEMBLIES •

Two (2) Types of illegal assemblies: a. Meeting of the first form 1.

Meeting, gathering or group of persons whether in a fixed place or moving

2.

purpose : to commit any of crimes punishable under the code

3.

meeting attended by armed persons

26 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Meeting of the second form 1.

Meeting, gathering or group of persons whether in a fixed place or moving

2. Audience whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. •

Not all the persons present at the meeting of the first form of illegal assembly must be armed

•

Persons liable for illegal assembly a. the organizers or leaders of the meeting b.

•

persons merely present at the meeting (except when presence is out of curiosity – not liable)

Responsibility of persons merely present at the meeting

•

a.

if they are not armed, penalty is arresto mayor

b.

if they carry arms, like bolos or knives, or licensed firearms, penalty is prision correccional

Presumptions if person present at the meeting carries an unlicensed firearm: a.

purpose of the meeting is to commit acts punishable under the RPC

b.

considered as leader or organizer of the meeting

Those who incite the audience, by means of speeches, printed matters, and other representation, to commit treason, rebellion or insurrection, sedition or assault a person in authority, shall be deemed leaders or organizers of said meeting.

•

The gravamen of the offense is mere assembly of or gathering of people for illegal purpose punishable by the Revised Penal Code. Without gathering, there is no illegal assembly. If unlawful purpose is a crime under a special law, there is no illegal assembly. For example, the gathering of drug pushers to facilitate drug trafficking is not illegal assembly because the purpose is not violative of the Revised Penal Code but of The Dangerous Drugs Act of 1972, as amended, which is a special law.

Two forms of illegal assembly (1)

No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority. When the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already.

(2)

Armed men attending the gathering – If the illegal purpose is other than those mentioned above, the presence of armed men during the gathering brings about the crime of illegal assembly. Example: Persons conspiring to rob a bank were arrested. Some were with firearms. Liable for illegal assembly, not for conspiracy, but for gathering with armed men.

Distinction between illegal assembly and illegal association In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the Revised Penal Code. In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose which is not limited to a violation of the Revised Penal Code. It includes a violation of a special law or those against public morals. Meaning of public morals: inimical to public welfare; it has nothing to do with decency., not acts of obscenity. Article 147 ILLEGAL ASSOCIATIONS •

ELEMENTS: a. Organized totally or partially for the purpose of committing any of the crimes in RPC Or b. For some purpose contrary to public morals

•

Persons liable: a. founders, directors and president of the association b. mere members of the association Illegal Assembly (146) Must be an actual meeting of armed persons to commit any of the crimes punishable under the RPC, or of individuals who, although not armed, are incited to the commission of treason, rebellion, sedition or assault upon a person in authority of his agent. It is the meeting and the attendance at such that are punished Persons liable: leaders and those present

Illegal Association (147) No need for such

Act of forming or organizing and membership in the association Founders, directors, president and members

27 Elements and Notes in Criminal Law Book II by RENE CALLANTA Public morals refers to crimes punished under Title Six of the Revised Penal Code, namely, gambling, grave scandal, prostitution and vagrancy. ASSAULT, RESISTANCE AND DISOBEDIENCE Article 148 DIRECT ASSAULT

•

ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT 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 crimes of sedition. (victim need not be person in authority) c.

That there is no public uprising.

Example of the first form of direct assault: Three men broke into a National Food Authority warehouse and lamented sufferings of the people. They called on people to help themselves to all the rice. They did not even help themselves to a single grain. The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct assault by committing acts of sedition under Article 139 (5), that is, spoiling of the property, for any political or social end, of any person municipality or province or the national government of all or any its property, but there is no public uprising.

•

ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT: a. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. b.

That the person assaulted is a person in authority or his agent.

c.

That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties (motive is not essential), or that he is assaulted (b) by reason of the past performance of official duties (motive is essential).

d.

That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). e.

That there is no public uprising.

Crime of direct assault can only be committed by means of dolo. It cannot be committed by culpa.

•

Always complexed with the material consequence of the act (e.g. direct assault with murder) except if resulting in a light felony, in which case, the consequence is absorbed

The crime is not based on the material consequence of the unlawful act. The crime of direct assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule of law. To be specific, if a judge was killed while he was holding a session, the killing is not the direct assault, but murder. There could be direct assault if the offender killed the judge simply because the judge is so strict in the fulfillment of his duty. It is the spirit of hate which is the essence of direct assault. So, where the spirit is present, it is always complexed with the material consequence of the unlawful act. If the unlawful act was murder or homicide committed under circumstance of lawlessness or contempt of authority, the crime would be direct assault with murder or homicide, as the case may be. In the example of the judge who was killed, the crime is direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony; the crime of direct assault can not be separated from the material result of the act. So, if an offender who is charged with direct assault and in another court for the slight physical Injury which is part of the act, acquittal or conviction in one is a bar to the prosecution in the other. •

Hitting the policeman on the chest with fist is not direct assault because if done against an agent of a person in authority, the force employed must be of serious character

•

The force employed need not be serious when the offended party is a person in authority (ex. Laying of hands)

•

The intimidation or resistance must be serious whether the offended party is an agent only or a person in authority (ex. Pointing a gun)

Person in Authority Agent

•

Force Employed

Intimidation/Resistance

Need not be serious Must be of serious character

Serious Serious

Person in authority: any person directly vested with jurisdiction (power or authority to govern and execute the laws) whether as an individual or as a member of some court or governmental corporation, board or commission

28 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

A barangay captain is a person in authority, so is a Division Superintendent of schools, President of Sanitary Division and a teacher

In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority.

•

Agent: is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. (Example. Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff, agents of the BIR, Malacañang confidential agent)

•

Even when the person in authority or the agent agrees to fight, still direct assault.

•

When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate selfdefense

The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer, any form of resistance which may be in the nature of force against him will be considered as an act of legitimate defense. (People vs. Hernandez, 59 Phil. 343) •

There can be no assault upon or disobedience to one authority by another when they both contend that they were in the exercise of their respective duties.

The offender and the offended party are both public officers. The Supreme Court said that assault may still be committed, as in fact the offender is even subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193). •

When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked

In direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. In the second form, you have to distinguish a situation where a person in authority or his agent was attacked while performing official functions, from a situation when he is not performing such functions.

•

If attack was done during the exercise of official functions, the crime is always direct assault. It is enough that the offender knew that the person in authority was performing an official function whatever may be the reason for the attack, although what may have happened was a purely private affair.

On the other hand, if the person in authority or the agent was killed when no longer performing official functions, the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Motive becomes important in this respect. Example, if a judge was killed while resisting the taking of his watch, there is no direct assault. In the second form of direct assault, it is also important that the offended knew that the person he is attacking is a person in authority or an agent of a person in authority, performing his official functions. No knowledge, no lawlessness or contempt. For example, if two persons were quarreling and a policeman in civilian clothes comes and stops them, but one of the protagonists stabs the policeman, there would be no direct assault unless the offender knew that he is a policeman. In this respect it is enough that the offender should know that the offended party was exercising some form of authority. It is not necessary that the offender knows what is meant by person in authority or an agent of one because ignorantia legis non excusat. •

•

Circumstances qualifying the offense (Qualified Assault): a. when the assault is committed with a weapon b.

when the offender is a public officer or employee

c.

when the offender lays hand upon a person in authority

Complex crime of direct assault with homicide or murder, or with serious physical injuries.

If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical injuries, the latter shall not be considered as a separate offense. It shall be absorbed by the greater crime of direct assault. (People vs. Acierto, 57 Phil. 614) •

Direct assault cannot be committed during rebellion.

May direct assault be committed upon a private individual? Yes. When a private person comes to the aid of a person in authority, and he is likewise assaulted. Under Republic Act No. 1978, • a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an agent of a person in authority. Article 149 INDIRECT ASSAULT •

ELEMENTS:

29 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. That a person in authority or his agent is the victim of any of the forms of direct assault defined in ART. 148. b.

That a person comes to the aid of such authority or his agent.

c. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. •

•

Indirect assault can be committed only when a direct assault is also committed To be indirect assault, the person who should be aided is the agent (not the person in authority because it is already direct assault, the person coming to the aid of the person in authority being considered as an agent and an attack on the latter is already direct assault). Example. Aiding a policeman under attack.

The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The assault is upon a person who comes in aid of the agent of a person in authority. The victim cannot be the person in authority or his agent. Take note that under Article 152, as amended, when any person comes in aid of a person in authority, said person at that moment is no longer a civilian – he is constituted as an agent of the person in authority. If such person were the one attacked, the crime would be direct assault Article 150 DISOBEDIENCE TO SUMMONS • a.

Acts punishable: refusing without legal excuse to obey summons

b.

refusing to be sworn or placed under affirmation

c.

refusing to answer any legal inquiry to produce books, records etc.

d.

restraining another from attending as witness in such body

e.

inducing disobedience to a summons or refusal to be sworn

The act punished is refusal, without legal excuse, to obey summons issued by the House of Representatives or the Senate. If a Constitutional Commission is created, it shall enjoy the same privilege. The exercise by the legislature of its contempt power is a matter of self-preservation, independent of the judicial branch. The contempt power of the legislature is inherent and sui generis. The power to punish is not extended to the local executive bodies. The reason given is that local legislative bodies are but a creation of law and therefore, for them to exercise the power of contempt, there must be an express grant of the same. Article 151 RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. 1) •

ELEMENTS: a. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender. b.

That the offender resists or seriously disobeys such person in authority or his agent.

c.

That the act of the offender is not included in the provisions of arts. 148, 149 and 150.

SIMPLE DISOBEDIENCE (par. 2) •

ELEMENTS: a. That an agent of a person in authority is engaged in the performance of official duty gives a lawful order to the offender. b.

That the offender disobeys such agent of a person in authority.

c.

That such disobedience is not of a serious nature.

US vs. Ramayrat, 22 Phil. 183 The Supreme Court held that: “the • violation does not refer to resistance or disobedience to the legal provisions of the law, nor to judicial decisions defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil actions. Rather, the disobedience or resistance is to the orders directly issued by the authorities in the exercise of their official duties.” Direct Assault (148) PIA or his agent must be engaged in the performance of official duties or that he is assaulted Direct assault is committed in 4 ways – by attacking,

Resistant and Disobedience to a Person in Authority or Agents of such Person (151) PIA or his agent must be in the actual performance of his duties. Committed by resisting or seriously disobeying a PIA or his

30 Elements and Notes in Criminal Law Book II by RENE CALLANTA employing force, and seriously resisting a PIA or his agent. Use of force against an agent of PIA must be serious and deliberate.

agent. Use of force against an agent of a PIA is not so serious; no manifest intention to defy the law and the officers enforcing it.

In both resistance against an agent of a person in authority and direct assault by resisting an agent of a person in authority, there is force employed, but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it. The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires the use of force of some kind, would constitute direct assault and the lesser offense of resistance or disobedience in Article 151 would entirely disappear. But when the one resisted is a person in authority, the use of any kind or degree of force will give rise to direct assault. If no force is employed by the offender in resisting or disobeying a person in authority, the crime committed is resistance or serious disobedience under the first paragraph of Article 151. Article 152 PERSONS IN AUTHORITY/AGENTS OF PERSONS IN AUTHORITY:

• •

• •

•

•

Persons in Authority – any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission. Examples of Persons in Authority : a. Barangay captain b. Barangay chairman c. Municipal mayor d. Provincial fiscal e. Justice of the peace f. Municipal councilor g. Teachers h. Professors i. Persons charged with the supervision of public or duly recognized private schools, colleges and universities j. Lawyers in the actual performance of their professional duties or on the occasion of such performance Agent of Person in Authority – any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. Examples of agents of PIA : a. Barrio councilman b. Barrio policeman c. Barangay leader d. Any person who comes to the aid of persons in authority Section 388 of the Local Gov’t Code provides that “for purposes of the RPC, the punong barangay, sangguniang barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and the security of life, property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority shall be deemed AGENT of persons in authority. When the offended party is a person in authority and while being assaulted, a private individual comes to his rescue, such private individual, by operation of law, mutates mutandis becomes an agent of a person in authority. Any assault committed against such person is direct assault, and not indirect assault. But if the person assaulted is an agent of a person in authority, and a private individual comes to his rescue and is himself assaulted while giving the assistance, as earlier discussed, the crime committed is indirect assault. CRIMES AGAINST PUBLIC DISORDERS

Article 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER •

TYPES: a.

Causing any serious disturbance in a public place, office or establishment

b.

Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if the act is not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship). c. Making any outcry tending to incite rebellion or sedition in any meeting, association or public place

31 Elements and Notes in Criminal Law Book II by RENE CALLANTA

• •

•

•

d.

Displaying placards or emblems which provoke a disturbance of public order in such place

e.

Burying with pomp the body of a person who has been legally executed.

If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers, or if committed by public officers who are not participants therein, this article applies. Art 131 and 132 punishes the same acts if committed by public officers who are NOT participants in the meeting The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, its inciting to rebellion or sedition. This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. In the former, the meeting is legal and peaceful. It becomes unlawful only because of the outcry made, which tends to incite rebellion or sedition in the meeting. In the latter case, the meeting is unlawful from the beginning and the utterances made are deliberately articulated to incite others to rise publicly and rebel against the government. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion or sedition. Tumultuous – if caused by more than 3 persons who are armed or provided with means of violence (circumstance qualifying the disturbance/interruption) – “tumultuous in character”

The essence is creating public disorder. This crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held. •

For a crime to be under this article, it must not fall under Articles 131 (prohibition, interruption, and dissolution of peaceful meetings) and 132 (interruption of religious worship).

In the act of making outcry during speech tending to incite rebellion or sedition, the situation must be distinguished from inciting to sedition or rebellion. If the speaker, even before he delivered his speech, already had the criminal intent to incite the listeners to rise to sedition, the crime would be inciting to sedition. However, if the offender had no such criminal intent, but in the course of his speech, tempers went high and so the speaker started inciting the audience to rise in sedition against the government, the crime is disturbance of the public order. The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men. The term “armed” does not refer to firearms but includes even big stones capable of causing grave injury.

• •

It is also disturbance of the public order if a convict legally put to death is buried with pomp. He should not be made out as a martyr; it might incite others to hatred. The crime of disturbance of public order may be committed in a public or private place. If committed in a private place, the law is violated only where the disturbance is made while a public function or performance is going on. Without a public gathering in a private place, the crime cannot be committed.

Article 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES •

TYPES: a. Publishing or causing to be published, by means of printing, lithography or any other means of publication as news any false news which may endanger the public order, or cause damage to the interest or credit of the State. b. 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 c. Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially d. 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.

The purpose of the law is to punish the spreading of false information which tends to cause panic, confusion, distrust and divide people in their loyalty to the duly constituted authorities. Actual public disorder or actual damage to the credit of the State is not necessary. Republic Act No. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority The article also punishes any person who knowingly publishes official acts or documents which are not officially promulgated. Article 155 ALARMS AND SCANDALS •

TYPES: a. Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause alarm or danger

32 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Instigating or taking active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility c. Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusement d. Causing any disturbance or scandal in public places while intoxicated or otherwise, provided the act is not covered by Art 153 (tumult). Understand the nature of the crime of alarms and scandals as one that disturbs public tranquility or public peace. If the annoyance is intended for a particular person, the crime is unjust vexation.

•

Charivari – mock serenade or discordant noises made with kettles, tin horns etc, designed to deride, insult or annoy

When a person discharges a firearm in public, the act may constitute any of the possible crimes under the Revised Penal Code: (1)

Alarms and scandals if the firearm when discharged was not directed to any particular person;

(2)

Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent;

(3)

Attempted homicide, murder, or parricide if the firearm when discharged is directed against a person and intent to kill is present.

In this connection, understand that it is not necessary that the offended party be wounded or hit. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. It can not be frustrated because the offended party is not mortally wounded. In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is automatically attempted homicide. Intent to kill is inherent in the use of the deadly weapon. (4)

Grave Threats – If the weapon is not discharged but merely pointed to another

(5)

Other Light Threats – If drawn in a quarrel but not in self defense

•

What governs is the result, not the intent

CRIME Tumults and other Disturbances (153) Alarms and Scandals (155)

Nature of Crime Crime against Public Order Crime against Public Order

Who are Liable Private persons, outsider Private persons, outsider

Article 156 DELIVERING PRISONERS FROM JAILS •

ELEMENTS : a. That there is a person confined in a jail or penal establishment.

b.

That the offender removes therefor such person, or helps the escape of such person (if the escapee is serving final judgement, he is guilty of evasion of sentence). c. •

Offender is a private individual

Prisoner may be detention prisoner or one sentenced by virtue of a final judgment

Even if the prisoner is in the hospital or asylum or any place for detention of prisoner, as long as he is classified as a prisoner, that is, a formal complaint or information has been filed in court, and he has been officially categorized as a prisoner, this article applies, as such place is considered extension of the penal institution. •

A policeman assigned to the city jail as guard who while off-duty released a prisoner is liable here

Even if the prisoner returned to the jail after several hours, the one who removed him from jail is liable. •

It may be committed through negligence

•

Circumstances qualifying the offense – is committed by means of violence, intimidation or bribery.

•

Mitigating circumstance – if it takes place outside the penal establishment by taking the guards by surprise

correlate the crime of delivering person from jail with infidelity in the custody of prisoners punished under Articles 223, 224 and 225 of the Revised Penal Code. In both acts, the offender may be a public officer or a private citizen. Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. Both crimes may be committed by public officers as well as private persons. In both crimes, the person involved may be a convict or a mere detention prisoner.

33 Elements and Notes in Criminal Law Book II by RENE CALLANTA The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape.

•

If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. But if the offender is not the custodian of the prisoner at that time, even though he is a public officer, the crime he committed is delivering prisoners from jail.

Liability of the prisoner or detainee who escaped – When these crimes are committed, whether infidelity in the custody of prisoners or delivering prisoners from jail, the prisoner so escaping may also have criminal liability and this is so if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence is committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment. If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. If three persons are involved – a stranger, the custodian and the prisoner – three crimes are committed: (1)

Infidelity in the custody of prisoners;

(2)

Delivery of the prisoner from jail; and

(3)

Evasion of service of sentence.

It is possible that several crimes may be committed in one set of facts. For instance, assuming that Pedro, the jail warden, agreed with Juan to allow Maria to escape by not locking the gate of the city jail. Provided that Juan comes across with P5,000.00 pesos as bribe money. The arrangement was not known to Maria but when she noticed the unlocked gate of the city jail she took advantage of the situation and escaped. From the facts given, there is no question that Pedro, as the jail warden, is liable for the crime of infidelity in the custody of the prisoner. He will also be able for the crime of bribery. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of public official under Art. 212. If Maria is a sentenced prisoner, she will be liable for evasion of service of sentence under Article 157. if she is a detention prisoner, she commits no crime. EVASION OF SENTENCE OR SERVICE Evasion of service of sentence has three forms: (1)

By simply leaving or escaping from the penal establishment under Article 157;

(2)

Failure to return within 48 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed under Article 158;

(3)

Violating the condition of conditional pardon under Article 159.

Article 157 EVASION OF SERVICE OF SENTENCE •

•

ELEMENTS : a. That the offender is a convict by final judgment.

b.

That he is serving his sentence which consists in deprivation of liberty (destierro included)

c.

That he evades the service of his sentence by escaping during the term if his sentence. (fact of return immaterial).

By the very nature of the crime, it cannot be committed when the prisoner involved is merely a detention prisoner. But it applies to persons convicted by final judgment with a penalty of destierro.

A detention prisoner even if he escapes from confinement has no criminal liability. Thus, escaping from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion of Service of Sentence. In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It is enough that he left the penal establishment by escaping therefrom. His voluntary return may only be mitigating, being analogous to voluntary surrender. But the same will not absolve his criminal liability.

•

A continuing offense.

•

Offenders – not minor delinquents nor detention prisoners

•

If escaped within the 15 day appeal period – no evasion

•

No applicable to deportation as the sentence

34 Elements and Notes in Criminal Law Book II by RENE CALLANTA The crime of evasion of service of sentence may be committed even if the sentence is destierro, and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of 25 kilometers to such places as stated in the judgment. If the sentence violated is destierro, the penalty upon the convict is to be served by way of destierro also, not imprisonment. This is so because the penalty for the evasion can not be more severe than the penalty evaded. •

Circumstances qualifying the offense (done thru): a. unlawful entry (by “scaling”) b.

breaking doors, windows, gates, walls, roofs or floors

c.

using picklocks, false keys, disguise, deceit, violence or intimidation

d.

connivance with other convicts or employees of the penal institution

A, a foreigner, was found guilty of violation of the law, and was ordered by the court to be deported. Later on, he returned to the Philippines in violation of the sentence. Held: He is not guilty of Evasion of Service of Sentence as the law is not applicable to offenses executed by deportation. (U.S. vs. Loo Hoe, 36 Phil. 867). Article 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER CALAMITIES •

ELEMENTS : a. That the offender is a convict by final judgement who is confined in a penal institution. b.

That there is disorder, resulting from- 1. conflagration, 2. earthquake, or 3. explosion, or 4. similar catastrophe, or 5. mutiny , not participated.

c.

That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny.

d.

That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the chief executive announcing the passing away of such calamity.

The leaving from the penal establishment is not the basis of criminal liability. It is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence. But if the prisoner fails to return within said 48 hours, an added penalty, also 1/5, shall be imposed but the 1/5 penalty is based on the remaining period of the sentence, not on the original sentence. In no case shall that penalty exceed six months. •

Offender must escape to be entitled to allowance

Those who did not leave the penal establishment are not entitled to the 1/5 credit. Only those who left and returned within the 48-hour period.

•

•

For such event to be considered as a calamity, the President must declared it to be so. He must issue a proclamation to the effect that the calamity is over. Even if the events herein mentioned may be considered as calamity, there is a need for the Chief Executive to make such announcement. Absent such declaration. Even if the prisoner will return to the penal institution where he was confined, the same is of no moment as in the meantime he has committed a violation of the law, not under the present article but for pure evasion of service of sentence under Article 157. Mutiny – organized unlawful resistance to a superior officer, a sedition, a revolt

The mutiny referred to in the second form of evasion of service of sentence does not include riot. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. One who escapes during a riot will be subject to Article 157, that is, simply leaving or escaping the penal establishment. •

Disarming the guards is not mutiny

Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. The law has provided sufficient guidelines for the jail warden to follow. This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is apprehended by the authorities after 48 hours from the declaration that the calamity is over. It is only extended to one who returns but made inside the 48 hours delimited by the proclamation. At this stage, the violation is not substantive but administrative in nature. Article 159 VIOLATION OF CONDITIONAL PARDON •

ELEMENTS: a. That the offender was a convict.

35 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

That he was granted a conditional pardon by the chief executive.

c.

That he violated any of the conditions of such pardon.

• Condition extends to special laws – violation of illegal voting The condition imposed upon the prisoner not to be guilty of another crime is not limited to those punishable under the Revised Penal Code. It includes those punished under Special Law. (People vs. Corral, 74 Phil. 357). In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence. If the condition of the pardon is violated, the remedy against the accused may be in the form of prosecution under Article 159. it may also be an administrative action by referring the violation to the court of origin and praying for the issuance of a warrant of arrest justified under Section 64 of the Revised Administrative Code.

•

•

The administrative liability of the convict under the conditional pardon is different and has nothing to do with his criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been violated. Exception: where the violation of the condition of the pardon will constitute evasion of service of sentence, even though committed beyond the remaining period of the sentence. This is when the conditional pardon expressly so provides or the language of the conditional pardon clearly shows the intention to make the condition perpetual even beyond the unserved portion of the sentence. In such case, the convict may be required to serve the unserved portion of the sentence even though the violation has taken place when the sentence has already lapsed. Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender without trial

Article 159 is a distinct felony. It is a substantive crime. For one to suffer the consequence of its violation, the prisoner must be formally charged in court. He will be entitled to a full blown hearing, in full enjoyment of his right to due process. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al., 152 SCRA 292) VIOLATION OF PARDON Infringement of conditions/terms of President

•

ORDINARY EVASION To evade the penalty given by the courts – disturbs the public order

Two penalties provided:

a.

prision correccional in its minimum period – if the penalty remitted does not exceed 6 years

b.

the unexpired portion of his original sentence – if the penalty remitted is higher than 6 years COMMISSION OF ANOTHER CRIME

Article 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSEPENALTY: (quasi-recidivism) •

ELEMENTS a. That the offender was already convicted by final judgement of one offense. b.

•

That he committed a new felony before beginning to serve such sentence or while serving the same.

Quasi-recidivism : a person after having been convicted by final judgement shall commit a new felony before beginning to serve such sentence, or while serving the same.

•

Second crimes must belong to the RPC, not special laws. First crime may be either from the RPC or special laws

•

Reiteracion: offender shall have served out his sentence for the prior offense

•

A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual Delinquent

•

If new felony is evasion of sentence – offender is not a quasi-recidivist

•

Penalty: maximum period of the penalty for the new felony should be imposed

Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the penalty prescribed by law for the new felony. The court will do away or will ignore mitigating and aggravating circumstances in considering the penalty to be imposed. There will be no occasion for the court to consider imposing the minimum, medium or maximum period of the penalty. The mandate is absolute and is justified by the finding that the accused is suffering from some degree of moral perversity if not total incorrigibility. (People vs. Alicia, et al., 95 SCRA 227) Quasi-recidivism is an aggravating circumstance which cannot be offset by any mitigating circumstance. To be appreciated as a special aggravating circumstance, it must be alleged in the information. (People vs. Bautista, 65 SCRA 460)

36 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Quasi-Recidivism may be offset by a special privileged mitigating circumstance (ex. Minority) TITLE FOUR CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest 1.

Counterfeiting the great seal of the Government of the Philippines (Art. 161);

2.

Using forged signature or counterfeiting seal or stamp (Art. 162);

3.

Making and importing and uttering false coins (Art. 163);

4.

Mutilation of coins, importation and uttering of mutilated coins (Art. 164);

5.

Selling of false or mutilated coins, without connivance (Art. 165);

6.

Forging treasury or bank notes or other documents payable to bearer, importing and uttering of such false or forged notes and documents (Art. 166);

7.

Counterfeiting, importing and uttering instruments not payable to bearer (Art. 167);

8.

Illegal possession and use of forged treasury or bank notes and other instruments of credit (Art. 168);

9.

Falsification of legislative documents (Art. 170);

10.

Falsification by public officer, employee or notary (Art. 171);

11.

Falsification by private individuals and use of falsified documents (Art. 172);

12.

Falsification of wireless, cable, telegraph and telephone messages and use of said falsified messages (Art. 173);

13.

False medical certificates, false certificates of merit or service (Art. 174);

14.

Using false certificates (Art. 175);

15.

Manufacturing and possession of instruments or implements for falsification (Art. 176);

16.

Usurpation of authority or official functions (Art. 177);

17.

Using fictitious name and concealing true name (Art. 178);

18.

Illegal use of uniforms or insignia (Art. 179);

19.

False testimony against a defendant (Art. 180);

20.

False testimony favorable to the defendant (Art. 181);

21.

False testimony in civil cases (Art. 182);

22.

False testimony in other cases and perjury (Art. 183);

23.

Offering false testimony in evidence (Art. 184);

24.

Machinations in public auction (Art. 185);

25.

Monopolies and combinations in restraint of trade (Art. 186);

26.

Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys (Art. 187);

27.

Substituting and altering trade marks and trade names or service marks (Art. 188);

28.

Unfair competition and fraudulent registration of trade mark or trade name, or service mark; fraudulent designation of origin, and false description (Art. 189).

The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is that which defraud the public in general. There is deceit perpetrated upon the public. This is the act that is being punished under this title. Article 161 COUNTERFEITING GREAT SEAL OF GOVERNMENT •

•

TYPES: a.

Forging the great seal of the Government

b.

Forging the signature of the President

c.

Forging the stamp of the President

When the signature of the President is forged, it is not falsification but forging of signature under this article

37 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Signature must be forged, others signed it – not the President.

Article 162 USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP ELEMENTS: a.

•

That the great seal of the republic was counterfeited or the signature or stamp of the chief executive was forged by another person.

b.

That the offender knew of the counterfeiting or forgery.

c.

That he used the counterfeit seal or forged signature or stamp.

Offender is NOT the forger/not the cause of the counterfeiting

Article 163 MAKING AND IMPORTING AND UTTERING FALSE COINS •

•

ELEMENTS :

a.

That there be false or counterfeited coins (need not be legal tender).

b.

That the offender either made, imported or uttered such coins.

c.

That in case of uttering such false or counterfeited coins, he connives with counterfeiters or importers.

Coin is counterfeit – if it is forged, or if it is not an article of the government as legal tender, regardless if it is of no value

Kinds of coins the counterfeiting of which is punished 1.

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

2.

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

3.

Coin of the currency of a foreign country.

•

Counterfeiting – imitation of legal or genuine coin (may contain more silver, different design) such as to deceive an ordinary person in believing it to be genuine

•

Utter – to pass counterfeited coins, deliver or give away

•

Import – to bring to port the same

•

Both Philippine and foreign state coins

•

Applies also to coins withdrawn from circulation

•

Essence of article: making of coins without authority

Acts punished 1.

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

2.

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

The first acts of falsification or falsity are – (1)

Counterfeiting – refers to money or currency;

(2)

Forgery – refers to instruments of credit and obligations and securities issued by the Philippine government or any banking institution authorized by the Philippine government to issue the same;

(3)

Falsification – can only be committed in respect of documents.

In so far as coins in circulation are concerned, there are two crimes that may be committed: (1)

Counterfeiting coins -- This is the crime of remaking or manufacturing without any authority to do so.

In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of the government is penalized. In punishing the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money.

38 Elements and Notes in Criminal Law Book II by RENE CALLANTA (2)

Mutilation of coins -- This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin.

Requisites of mutilation under the Revised Penal Code (1)

Coin mutilated is of legal tender;

(2)

Offender gains from the precious metal dust abstracted from the coin; and

(3)

It has to be a coin.

•

There is no expertise involved here. In mutilation of coins under the Revised Penal Code, the offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus, diminishing the intrinsic value of the coin.

Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not legal tender anymore, no one will accept it, so nobody will be defrauded. But if the coin is of legal tender, and the offender minimizes or decreases the precious metal dust content of the coin, the crime of mutilation is committed. The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. If the offender does not collect such dust, intent to mutilate is absent, but Presidential Decree No. 247 will apply. Article 164 • MULTILATION OF COINS – IMPORTATION AND UTTERANCE: This has been repealed by PD 247. (Defacement, Mutilation, Tearing, Burning or Destroying Central Bank Notes and Coins) Under this PD, the acts punishable are: a. b. c. d. e.

•

willful defacement mutilation tearing burning destruction of Central Bank notes and coins

Mutilation – to take off part of the metal either by filling it or substituting it for another metal of inferior quality, to diminish by inferior means (to diminish metal contents).

•

Foreign notes and coins not included. Must be legal tender.

•

Must be intention to mutilate.

Mutilation under the Revised Penal Code is true only to coins. It cannot be a crime under the Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However, under Presidential Decree No. 247, mutilation is not limited to coins. Questions & Answers 1. The people playing cara y cruz, before they throw the coin in the air would rub the money to the sidewalk thereby diminishing the intrinsic value of the coin. Is the crime of mutilation committed? Mutilation, under the Revised Penal Code, is not committed because they do not collect the precious metal content that is being scraped from the coin. However, this will amount to violation of Presidential Decree No. 247. 2. When the image of Jose Rizal on a five-peso bill is transformed into that of Randy Santiago, is there a violation of Presidential Decree No. 247? Yes. Presidential Decree No. 247 is violated by such act. 4. An old woman who was a cigarette vendor in Quiapo refused to accept one-centavo coins for payment of the vendee of cigarettes he purchased. Then came the police who advised her that she has no right to refuse since the coins are of legal tender. On this, the old woman accepted in her hands the one-centavo coins and then threw it to the face of the vendee and the police. Was the old woman guilty of violating Presidential Decree No. 247? She was guilty of violating Presidential Decree No. 247 because if no one ever picks up the coins, her act would result in the diminution of the coin in circulation. 5. A certain customer in a restaurant wanted to show off and used a P 20.00 bill to light his cigarette. Was he guilty of violating Presidential Decree No. 247? He was guilty of arrested for violating of Presidential Decree No. 247. Anyone who is in possession of defaced money is the one who is the violator of Presidential Decree No. 247. The intention of Presidential Decree No. 247 is not to punish the act of defrauding the public but what is being punished is the act of destruction of money issued by the Central Bank of the Philippines. Note that persons making bracelets out of some coins violate Presidential Decree No. 247.

39 Elements and Notes in Criminal Law Book II by RENE CALLANTA The primary purpose of Presidential Decree No. 247 at the time it was ordained was to stop the practice of people writing at the back or on the edges of the paper bills, such as "wanted: pen pal". So, if the act of mutilating coins does not involve gathering dust like playing cara y cruz, that is not mutilation under the Revised Penal Code because the offender does not collect the metal dust. But by rubbing the coins on the sidewalk, he also defaces and destroys the coin and that is punishable under Presidential Decree No. 247. Article 165 SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE •

2 Types

a.

Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. ELEMENTS: 1.

b.

possession

2.

with intent to utter, and

3.

knowledge

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

actually uttering, and knowledge.

•

Possession does not require legal tender in foreign coins

•

Includes constructive possession

On counterfeiting coins, it is immaterial whether the coin is legal tender or not because the intention of the law is to put an end to the practice of imitating money and to discourage anyone who might entertain the idea of imitating money (People vs. Kong Leon). Article 166 FORGING TREASURY OR BANK NOTES – IMPORTING AND UTTERING •

• • •

• •

Acts punishable: a. Forging or falsity of treasury/bank notes or documents payable to bearer b.

Importing of such notes

c.

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

Forging – by giving a treasury or bank note or document payable to bearer/order an appearance of a true and genuine document Falsification – by erasing, substituting, counterfeiting or altering by any means the figures and letters, words, signs contained therein E.g. falsifying – lotto or sweepstakes ticket. Attempted estafa through falsification of an obligation or security of the Phil PNB checks not included here – it’s falsification of commercial document under Article 172 Obligation or security includes: bonds, certificate of indebtedness, bills, national bank notes, coupons, treasury notes, certificate of deposits, checks, drafts for money, sweepstakes money

If the falsification is done on a document that is classified as a government security, then the crime is punished under Article 166. On the other hand, if it is not a government security, then the offender may either have violated Article 171 or 172. Article 167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER •

ELEMENTS : a. That there be an instrument payable to order or other document of credit not payable to bearer. b.

That the offender either forged, imported or uttered such instruments.

c.

That in case of uttering, he connived with the forger or importer.

Article 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT

40 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

•

ELEMENTS: a. That any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person. b.

That the offender knows that any of those instruments is forged or falsified.

c.

That he performs any of these acts – 1. using any of such forged or falsified instrument, or 2. possessing with intent to use any of such forged or falsified instrument.

Act sought to be punished: Knowingly possessing with intent to use any of such forged treasury or bank notes

Article 169 FORGERY •

How forgery is committed: a. by giving to a treasury or bank note or any instrument payable to bearer or to order, the appearance of a true and genuine document b.

•

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

if all acts done but genuine appearance is not given, the crime is frustrated

Forgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by the Philippine government as its own obligations, which is given the same status as legal tender. Generally, the word “counterfeiting” is not used when it comes to notes; what is used is “forgery.” Counterfeiting refers to money, whether coins or bills. Notice that mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document. Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. When what is being counterfeited is obligation or securities, which under the Revised Penal Code is given a status of money or legal tender, the crime committed is forgery. Questions & Answers 1. committed?

Instead of the peso sign (P), somebody replaced it with a dollar sign ($). Was the crime of forgery

No. Forgery was not committed. The forged instrument and currency note must be given the appearance of a true and genuine document. The crime committed is a violation of Presidential Decree No. 247. Where the currency note, obligation or security has been changed to make it appear as one which it purports to be as genuine, the crime is forgery. In checks or commercial documents, this crime is committed when the figures or words are changed which materially alters the document. 2. An old man, in his desire to earn something, scraped a digit in a losing sweepstakes ticket, cut out a digit from another ticket and pasted it there to match the series of digits corresponding to the winning sweepstakes ticket. He presented this ticket to the Philippine Charity Sweepstakes Office. But the alteration is so crude that even a child can notice that the supposed digit is merely superimposed on the digit that was scraped. Was the old man guilty of forgery? NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is presented, the Supreme Court ruled that what was committed was an impossible crime. Note, however, that the decision has been criticized. In a case like this, the Supreme Court of Spain ruled that the crime is frustrated. Where the alteration is such that nobody would be deceived, one could easily see that it is a forgery, the crime is frustrated because he has done all the acts of execution which would bring about the felonious consequence but nevertheless did not result in a consummation for reasons independent of his will. 3. A person has a twenty-peso bill. He applied toothache drops on one side of the bill. He has a mimeograph paper similar in texture to that of the currency note and placed it on top of the twenty-peso bill and put some weight on top of the paper. After sometime, he removed it and the printing on the twenty-peso bill was reproduced on the mimeo paper. He took the reverse side of the P20 bill, applied toothache drops and reversed the mimeo paper and pressed it to the paper. After sometime, he removed it and it was reproduced. He cut it out, scraped it a little and went to a sari-sari store trying to buy a cigarette with that bill. What he overlooked was that, when he placed the bill, the printing was inverted. He was apprehended and was prosecuted and convicted of forgery. Was the crime of forgery committed? The Supreme Court ruled that it was only frustrated forgery because although the offender has performed all the acts of execution, it is not possible because by simply looking at the forged document, it could be seen that it is not genuine. It can only be a consummated forgery if the document which purports to be genuine is given the appearance of a true and genuine document. Otherwise, it is at most frustrated. Five classes of falsification: (1)

Falsification of legislative documents;

(2)

Falsification of a document by a public officer, employee or notary public;

41 Elements and Notes in Criminal Law Book II by RENE CALLANTA (3)

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

(4)

Falsification of a private document by any person;

(5)

Falsification of wireless, telegraph and telephone messages.

The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. Until and unless the writing has attained this quality, it will not be considered as document in the legal sense and, therefore, the crime of falsification cannot be committed in respect thereto. Distinction between falsification and forgery: Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. Note that forging and falsification are crimes under Forgeries. Article 170 FALSIFICATION OF LEGISLATIVE DOCUMENTS •

ELEMENTS : a. That these be a bill, resolution or ordinance enacted or approved or pending approval by the national assembly or any provincial board or municipal council. b.

That the offender (any person) alters the same.

c.

That he has no proper authority therefor.

d.

That the alteration has changed the meaning of the document.

The words "municipal council" should include the city council or municipal board – Reyes. •

Accused must not be a public official entrusted with the custody or possession of such document otherwise Art 171 applies .

The falsification must be committed on a genuine, true and authentic legislative document. If committed on a simulated, spurious or fabricated legislative document, the crime is not punished under this article but under Article 171 or 172. Article 171 FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR NOTARY OR ECCLESTASTICAL MINISTER •

ELEMENTS: a. That the offender is a public officer, employee, or notary public. b.

That he takes advantage of his official position.

c.

That he falsifies a document by committing any of the following acts: 1.

Counterfeiting or imitating any handwriting, signature or rubric.

Requisites: i. ii.

That there be an intent to imitate, or an attempt to imitate

That the two signatures or handwritings, the genuine and the forged, bear some resemblance, to each other  (lack of similitude/imitation of a genuine signature will not be a ground for conviction under par. 1 but such is not an impediment to conviction under par. 2)

2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. Requisites: i. That the offender caused it to appear in a document that a person/s participated in an act or a proceeding; and ii. 4.

That such person/s did not in fact so participate in the act or proceeding

Making untruthful statements in a narration of facts;

Requisites: i.

That the offender makes in a document statements in a narration of facts

42 Elements and Notes in Criminal Law Book II by RENE CALLANTA ii.

That he has a legal obligation to disclose the truth of the facts narrated by him; (required by law to be done) and

iii.

That the facts narrated by the offender are absolutely false; and

iv.

That the perversion or truth in the narration of facts was made with the wrongful intent of injuring a third person



There must be a narration of facts, not a conclusion of law. Must be on a material matter

For one to be held criminally liable for falsification under paragraph 4, the untruthful statement must be such as to effect the integrity of the document or to change the effects which it would otherwise produce.  Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Ex. Residence certificates  The person making the narration of facts must be aware of the falsity of the facts narrated by him. This kind of falsification may be committed by omission 5. Altering true dates. – date must be essential For falsification to take place under this paragraph, the date of the document must be material to the right created or to the obligation that is extinguished. 6.

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

Requisites: i.

That there be an alteration (change) or intercalation (insertion) on a document

ii.

That it was made on a genuine document

iii.

That the alteration/intercalation has changed the meaning of the document

iv.

That the change made the document speak something false.

7.

Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; (if no knowledge, falsification through negligence) or The acts of falsification mentioned in this paragraph are committed by a public officer or by a notary public who takes advantage of his official position as custodian of the document. It can also refer to a public officer or notary who prepared and retained a copy of the document. The falsification can be done in two ways. It can be a certification purporting to show that the document issued is a copy of the original on record when no such original exists. It can also be in the form of a certification to the effect that the document on file contains statements or including in the copy issued, entries which are not found on contrary to, or different from the original genuine document on file. 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. (genuine document)

d.

In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. •

There is no crime of attempted or frustrated falsification of public document

Alteration or changes to make the document speak the truth do not constitute falsification. (US vs. Mateo, 25 Phil. 324)

•

Persons liable – public officer, employee or notary public or ecclesiastical minister

Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer has official custody of the document.

•

So even if the offender is a public officer, if her causes the falsification of a document which is not in his official custody or if the falsification committed by him is not related whatsoever to the performance of his duties, he will still be liable for falsification but definitely not under this Article but under Article 172. (falsification of documents by a private person)

Document: Any written instrument which establishes a right or by which an obligation is extinguished. A deed or agreement executed by a person setting forth any disposition or condition wherein rights and obligations may arise. Writing may be on anything as long as it is a product of the handwriting, it is considered a document. •

Not necessary that what is falsified is a genuine or real document, enough that it gives an appearance of a genuine article

As long as any of the acts of falsification is committed, whether the document is genuine or not, the crime of falsification may be committed. Even totally false documents may be falsified.

•

Counterfeiting – imitating any handwriting, signature or rubric

43 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Feigning – simulating a signature, handwriting, or rubric out of one of which does not in fact exist

It does not require that the writing be genuine. Even if the writing was through and through false, if it appears to be genuine, the crime of falsification is nevertheless committed. There are four kinds of documents: (1)

Public document in the execution of which, a person in authority or notary public has taken part;

(2)

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

(3)

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

(4)

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

Public document is broader than the term official document. Before a document may be considered official, it must first be a public document. But not all public documents are official documents. To become an official document, there must be a law which requires a public officer to issue or to render such document. Example: A cashier is required to issue an official receipt for the amount he receives. The official receipt is a public document which is an official document. Liability of a private individual in falsification by a public officer when there is conspiracy. Under Republic Act 7975, when a public officer who holds a position classified as Grade 27 or higher, commits a crime in relation to the performance of his official functions, the case against him will fall under the jurisdiction of the Sandiganbayan. If a private person is included in the accusation because of the existence of conspiracy in the commission of the crime, the Sandiganbayan shall maintain jurisdiction over the person of the co-accused, notwithstanding the fact that said co-accused is a private individual. If the public officer is found guilty, the same liability and penalty shall be imposed on the private individual. (U.S. vs. Ponce, 20 Phil. 379) Article 172 FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1) •

ELEMENTS a. That 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. 1.

Counterfeiting or imitating any handwriting, signature or rubric.

2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participated. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them.

c.

•

4.

Making untruthful statements in a narration of facts;

5.

Altering true dates.

6.

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

That the falsification was committed in any public or official or commercial document.

Under this paragraph, damage is not essential, it is presumed

If the falsification of public, official or commercial documents, whether they be public official or by private individuals, it is not necessary that there be present the idea of gain or the intent to injure a third person. What is punished under the law is the violation of public faith and the perversion of the truth as solemnly proclaimed by the nature of the document. (Sarep vs. Sandiganbayan)

• •

Defense: lack of malice or criminal intent The following writings are public: a. the written acts or records of acts of the sovereign authority of official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country. b.

•

Public records kept in the Philippines.

Examples of commercial documents – warehouse receipts, airway bills, bank checks, cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments

There is a complex crime of estafa through falsification of public, official or commercial document. In the crime of estafa, damage or intent to cause damage is not an element. It is sufficient that the offender committed or performed the acts of falsification as defined and punished under Article 171. The two offenses can co-exist as they have distinct elements peculiar to their nature as a crime. When the falsification is committed because it is necessary to commit estafa, what we have is a complex crime defined and punished under Article 48 of the Revised Penal Code. There is a complex crime of falsification of pubic documents through reckless imprudence.

44 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Cash disbursement vouchers or receipts evidencing payments are not commercial documents

•

A mere blank form of an official document is not in itself a document

•

The possessor of falsified document is presumed to be the author of the falsification

FALSIFICATION UNDER PARAGRAPH 2 OF ART. 172. OF PRIVATE DOCUMENT •

ELEMENTS : a. That the offender committed any of the acts of falsification, except those in paragraph 7 and 8, enumerated in art. 171.

b.

That the falsification was committed in any private document (must affect the truth or integrity of the document)

c.

That the falsification caused damage (essential element; hence, no crime of estafa thru falsification of private document) to a third party or at least the falsification was committed with intent to cause such damage. •

Not necessary that the offender profited or hoped to profit from the falsification

Falsification of a private document is consummated when such document is actually falsified with the intent to prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is intended. (Lopez vs. Paras, 36 Phil. 146) What is emphasized at this point is the element of falsification of private document. There must be intent to cause damage or damage is actually caused. The intention is therefore must be malicious or there is deliberate intent to commit a wrong. Reckless imprudence is incompatible with malicious intent. •

Falsification is not a continuing offense

There is no falsification through reckless imprudence if the document is a private document. •

Falsification by omission

Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. Two acts must be done by the offender. 1) He must have performed in the private document the falsification contemplated under Article 171. 2) He must have performed an independent act which operates to cause damage or prejudice to a third person. The third person mentioned herein may include the government. Damage is not limited to money or pecuniary prejudice. Damage to one’s honor, reputation or good name is included. •

•

A document falsified as a necessary means to commit another crime must be public, official or commercial There is no complex crime of estafa through falsification of a private document because the immediate effect of the latter is the same as that of estafa

If a private document is falsified to cause damage to the offended party, the crime committed is falsification of a private document. Remember that in estafa, damage or intent to cause damage is an indispensable element of the crime. The same element is necessary to commit the crime of falsification of private document. Since they have a common element, such element cannot be divided into the two parts and considered as two separate offenses. There is no complex crime of estafa with falsification because deceit is a common element of both. One and the same deceit or damage cannot give rise to more than one crime. It is either estafa or falsification. Criteria to determine whether the crime is estafa only or falsification only : IF the falsification of the private document was essential in the commission of estafa because the falsification, estafa cannot be committed, the crime is falsification; estafa becomes the consequence of the crime. IF the estafa can be committed even without resorting to falsification, the latter being resorted only to facilitate estafa, the main crime is estafa; falsification is merely incidental, since even without falsification, estafa can be committed. •

If the estafa was already consummated at the time of the falsification of a private document was committed for the purpose of concealing the estafa, the falsification is not punishable, because as regards the falsification of the private document there was no damage or intent to cause damage.

A private document which is falsified to obtain money from offended party is a falsification of private document only. •

A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law

•

The crime is falsification of public documents even if falsification took place before the private document becomes part of the public records

Examples: An employee of a private company who punches the bundy clock on behalf on a co-employee is guilty of falsification of a private document. One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of falsification of a public document.

45 Elements and Notes in Criminal Law Book II by RENE CALLANTA USE OF FALSIFIED DOCUMENT (par. 3, art. 172) •

ELEMENTS: a.

Introducing in a judicial proceeding: 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in art. 171 or in any subdivisions nos. 1 and 2 of art. 172.

3.

That he introduced said document in evidence in any judicial proceeding. (intent to cause damage not necessary) b.

Use in any other transaction: 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in art. 171 or in any of subdivisions nos. 1 and 2 of art. 172.

3.

That he used such documents (not in judicial proceedings).

4. That the use of the documents caused damage to another or at least was used with intent to cause such damage. •

The user of the falsified document is deemed the author of falsification, if: a. the use is so closely connected in time with the falsification b.

the user had the capacity of falsifying the document

Falsification of Private Documents Prejudice to third party is an element of the offense.

Falsification of Public/Official Documents Prejudice to third persons is immaterial, what is punished is the violation of public faith and perversion of truth which the document proclaims.

Rules to observe in the use of a falsified document. 1. It is a crime when knowingly introduced in a judicial proceeding even if there is not intent to cause damage to another. Knowingly introducing a falsified document in a judicial proceeding, the use alone is not a crime. The mere introduction of the forged document is the crime itself. But when the falsified document is knowingly introduced in an administrative proceeding, the use alone is not a crime. There must be intent to cause damage or damage is actually inflicted. 2. Falsification of document is a separate and distinct offense from that of the use of falsified documents. So if the falsification of document was done or performed because it was necessary to the use of the same and in the commission of the crime, then we may have a complex crime defined and punished under Article 48 of the Revised Penal Code. 3. Good faith is a defense in falsification of public document. Article 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES •

Acts punishable: 1. Uttering fictitious, wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message. b. 2.

Falsifying wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message.

b. 3.

That the accused commits any of the following acts: uttering fictitious wireless, cable, telegraph, or telephone message, or falsifying wireless, cable, telegraph, or telephone message

That the accused commits any of the following acts: uttering fictitious wireless, cable, telegraph, or telephone message, or falsifying wireless, cable, telegraph, or telephone message

Using such falsified message Requisites: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173. b.

That the accused used such falsified dispatch.

c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice.

46 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

The public officer, to be liable must be engaged in the service of sending or receiving wireless, cable and telegraph or telephone message

Article 174 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR SERVICE AND THE LIKE: •

Persons liable: a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate (note: such certificate must refer to the illness or injury of a person) b. Public officer who issued a false certificate of merit of service, good conduct or similar circumstances c.

Private individual who falsified a certificate under (1) and (2)

Article 175 USING FALSE CERTIFICATES •

ELEMENTS: a. That a physician or surgeon has issued a false medical certificate, or a public officer has issued a false certificate of merit or service, good conduct, or similar circumstances, or a private person had falsified any of said certificates. b.

That the offender knew that the certificate was false.

c.

That he used the same.

Article 176 MANUFACTURING AND POSSESSION OF INTRUMENTS OR IMPLEMENTS FOR FALSIFICATION: •

Acts punishable: a. Making or introducing into the Philippines any stamps, dies or marks or other instruments or implements for counterfeiting or falsification b.

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

•

The implement confiscated need not form a complete set

•

Constructive possession is also punished OTHER FALSITIES

Article 177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS: •

2 ways of committing the crime: a. By knowingly and falsely representing oneself to be an officer, agent or representative of any department or agency of the Philippine gov’t or any foreign gov’t. b.

•

By performing an act pertaining to any person in authority or public officer of the Phil gov’t or foreign gov’t under the pretense of such official position, and without being lawfully entitled to do so.

In usurpation of authority: The mere act of knowingly and falsely representing oneself necessary that he performs an act pertaining to a public officer.

is sufficient. Not

Elements

•

1.

Offender knowingly and falsely represents himself;

2.

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

In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a person in authority

Elements

•

1.

Offender performs any act;

2.

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

3.

Under pretense of official position;

4.

Without being lawfully entitled to do so.

A public officer may also be an offender

47 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

The act performed without being lawfully entitled to do so must pertain: a. to the gov’t b. to any person in authority c. to any public office

Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties in the Philippines. The law cannot refer to other foreign governments as its application may bring us to legal problems which may infringe on constitutional boundaries. If the offender commits the acts of usurpation as contemplated herein, and he does it because he is a rebel and pursuant to the crime of rebellion or insurrection or sedition, he will not be liable under this article because what is attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion. The elements of false pretense is necessary to commit the crime of usurpation of official function. Article 178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME •

ELEMENTS (using fictitious name) : a. That the offender uses a name other than his real name. b.

That he uses that fictitious name publicly.

c.

That the purpose of the offender is – 1. To conceal a crime, 2. To evade the execution of a judgment, or 3. To cause damage to public interest. (ex. Signing fictitious name for a passport)

The name of a person is what appears in his birth certificate. The name of a person refers to his first name, surname, and maternal name. Any other name which a person publicly applies to himself without authority of law is a fictitious name. •

ELEMENTS (concealing true name): a. that the offender conceals – 1.

his true name, and

2.

all other personal circumstances.

b.

that the purpose is only to conceal his identity.

What the offender does to violate or commit this act is for him to conceal his true name and other personal circumstances. His only motive in doing so is to conceal his identity. In concealment of true name, the deception is done momentarily, just enough to conceal the name of the offender. In the use of fictitious name, the offender presents himself before the public with another name. A person under investigation by the police who gives a false name and false personal circumstances, upon being interrogated, is guilty of this crime. Use of Fictitious Name (178) Element of publicity must be present Purpose is to conceal a crime, to evade the execution of a judgement, or to cause damage

Concealing True Name (178) Publicity not necessary Purpose is to conceal identity

Commonwealth Act No. 142 (Regulating the Use of Aliases) No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court. Exception: Pseudonym solely for literary, cinema, television, radio, or other entertainment and in athletic events where the use of pseudonym is a normally accepted practice. Article 179 ILLEGAL USE OF UNIFORM OR INSIGNIA •

ELEMENTS: a. That the offender makes use of insignia, uniform or dress. b.

That the insignia, uniform or dress pertains to an office not held by the offender or to a class of persons of which he is not a member.

c.

That said insignia, uniform or dress is used publicly and improperly.

The wearing of a uniform, or insignia of a non-existing office or establishment is not a crime. It is necessary that the uniform or insignia represents an office which carries authority, respect, dignity, or influence which the public looks up to. So also, an exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient.

48 Elements and Notes in Criminal Law Book II by RENE CALLANTA The wearing of insignia, badge or emblem of rank of the members of the armed forced of the Philippines or constabulary (now PNP) is punished by Republic Act No. 493. When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films, the crime is not committed. Three forms of false testimony 1. 2. 3.

False testimony in criminal cases under Article 180 and 181; False testimony in civil case under Article 182; False testimony in other cases under Article 183.

False testimony, defined It is the declaration under oath of a witness in a judicial proceeding which is contrary to what is true, or to deny the same, or to alter essentially the truth. Nature of the crime of false testimony. 1. It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to violate the law is an essential element of the crime. 2. If the false testimony is due to honest mistake or error or there was good faith in making the false testimony, no crime is committed. Article 180 FALSE TESTIMONY AGAINST A DEFENDANT • ELEMENTS: a. That there be a criminal proceeding. b.

That the offender testifies falsely under oath against the defendant therein.

c.

That the offender who gives false testimony knows that it is false.

d.

That the defendant against whom the false testimony is given is either acquitted or convicted in a final judgment (prescriptive period starts at this point)

•

Requires criminal intent, can’t be committed through negligence. Need not impute guilt upon the accused

•

The defendant must at least be sentenced to a correctional penalty or a fine or must have been acquitted

•

The witness who gave false testimony is liable even if the court did not consider his testimony

The probative value of the testimonial evidence is subject to the rules of evidence. It may not be considered at all by the judge. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false witness wanted it to be, the crime of false testimony is still committed, since it is punished not because of the effect it produces, but because of its tendency to favor the accused. (People vs. Reyes) •

Penalty is dependent upon sentence imposed on the defendant

Article 181 FALSE TESTIMONY IN FAVOR OF DEFENDANT in a criminal case: Elements: 1. A person gives false testimony; 2.

In favor of the defendant;

3.

In a criminal case.

•

False testimony by negative statement is in favor of the defendant

•

False testimony need not in fact benefit the defendant

•

A statement of a mere opinion is not punishable

•

Conviction or acquittal is not necessary (final judgement is not necessary). influence the acquittal

•

A defendant who voluntarily goes up on the witness stand and falsely imputes the offense to another person the commission of the offense is liable under this article. If he merely denies the commission of the offense, he is not liable.

•

Basis of penalty: gravity of the felony charged against the defendant

Article 182 FALSE TESTIMONY IN CIVIL CASES a. b.

•

ELEMENTS: That the testimony must be given in a civil case. That the testimony must relate to the issues presented in said case.

The false testimony need not

49 Elements and Notes in Criminal Law Book II by RENE CALLANTA c.

That the testimony must be false. d. e.

That the false testimony must be given by the defendant knowing the same to be false. That the testimony must be malicious and given with an intent to affect the issues presented in the said case

•

Not applicable when testimony given in a special proceeding (in this case, the crime is perjury)

•

Basis of penalty: amount involved in the civil case

Distinctions between perjury and false testimony: PERJURY 1. Non-judicial proceedings. 2. Statement or testimony is required by law. 3. Amount involved is not material. 4. immaterial whether statement or testimony is favorable or not to the accused.

FALSE TESTIMONY 1. Given in a judicial proceeding. 2. Testimony need not be required by law. 3. Amount involved in civil cases is material. 4. It is always material in criminal cases.

Article183 FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION ELEMENTS: a.

•

That an accused made a statement under oath or made an affidavit upon a material matter.

b.

That the statement or affidavit was made before a competent officer, authorized to receive and administer oath.

c.

That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood, and

d.

That the sworn statement or affidavit containing the falsity is required by law.

2 ways of committing perjury: a. by falsely testifying under oath b. by making a false statement

•

Subornation of perjury: procures another to swear falsely.

•

Solemn affirmation: refers to non-judicial proceedings and affidavits

•

A false affidavit to a criminal complaint may give rise to perjury

Two contradictory sworn statements are not sufficient to convict the affiant for the crime of perjury. There must be evidence to show which is false. The same must be established or proved from sources other than the two contradictory statements. (People vs. Capistrano, 40 Phil. 902) •

A matter is material when it is directed to prove a fact in issue

The test of materiality is whether a false statement can influence the court (People vs. Bnazil).

•

A “competent person authorized to administer an oath” means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction

There is no perjury if the accused signed and swore the statement before a person not authorized to administer oath (People vs. Bella David).

•

There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate

Because of the nature of perjury, which is the willful and corrupt assertion of a falsehood, there is no perjury committed through reckless imprudence or simple negligence under Article 365. Since admittedly perjury can only be committed by means of dolo, then good faith or lack of malice is a good defense when one is indicted for the crime of perjury.

•

Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient

If there is no requirement of law to place the statement or testimony under oath, there is no Perjury considering the phrases “oath in cases in which the law so requires” in Article 183. The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect one’s interest on real property; or an affidavit of good moral character to take the bar examination. So if the affidavit was made but the same is not required by law, even if the allegations are false, the crime of perjury is not committed. (Diaz vs. People, 191 SCRA 86) •

Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings

50 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

• •

False testimony before the justice of the peace during the P.I. may give rise to the crime of perjury because false testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered A person who knowingly and willfully procures another to swear falsely commits subornation of perjury and the witness suborned does testify under circumstances rendering him guilty of perjury. The false testimony is not in a judicial proceeding

False testimony vs. Perjury When one testifies falsely before the court, the crime committed is false testimony. If one testifies falsely in a nonjudicial proceeding, the crime committed is perjury. In false testimony, it is not required that the offender asserts a falsehood on a material matter. It is enough that he testifies falsely with deliberate intent. In perjury, the witness must testify or assert a fact on a material matter with a full knowledge that the information given is essentially contrary to the truth. Material matter means the main fact which is the subject or object of the inquiry. Article 184 OFFERING FALSE TESTIMONY IN EVIDENCE •

•

ELEMENTS: a That the offender offered in evidence a false witness or false testimony. b

That he knew the witness or the testimony was false.

c

That the offer was made in a judicial or official proceeding.

The false witness need not be convicted of false testimony. The mere offer is sufficient.

The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while testifying. The proceedings is either judicial or official. There is a formal offer of testimonial evidence in the proceedings. The witness is able to testify and the offender, knowing the testimony is given by the witness to be false, nevertheless offers the same in evidence. In this case, the person offering the false testimony must have nothing to do in the making of the false testimony. He knows that the witness is false and yet he asks him to testify and thereafter offers the testimony in evidence. So if the offeror, aside from being such, is also the person responsible in inducing or convincing the false witness to lie, Article 184 will not apply. The applicable article will be Article 180, 181, 182, or 183 as the case may be. The offenders in this case will be charged with perjury; the inducer as principal by inducement and the induced party as the principal by direct participation. It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of its own. Nevertheless, it is a crime defined and punished under the Revised Penal Code. The crime committed by one who induces another to testify falsely and the person who agrees and in conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66 Phil. 365) FRAUDS Article 185 MACHINATIONS IN PUBLIC AUCTION •

ELEMENTS: a b

That there be a public auction. That the accused solicited any gift or a promise from any of the bidders.

c That such gifts 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.

ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a public auction. b

That the accused attempted to cause the bidders to stay away from that public auction

c

That it was done by threats, gifts, promises, or any other artifice.

d

That the accused had the intent to cause the reduction of the price of the thing auctioned.

Article 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE: •

Acts punished: a.

Combination to prevent free competition in the market Elements 1.

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

51 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2.

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

b.

By entering into a contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or prevent by artificial means free competition in the market (It is enough that initial steps are taken. It is not necessary that there be actual restraint of trade)

c.

Monopoly to restrain free competition in the market Elements

d.

1.

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

2.

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

3.

To restrain free competition in the market

Manufacturer, producer or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of the merchandise. Elements 1.

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

2.

Combines, conspires or agrees with any person;

3.

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

•

Person/s liable: a. manufacturer b. producer c. processor d. importer

•

Crime is committed by: a. combining b. conspiring c. agreeing with another person

•

The purpose is: a. to make transactions prejudicial to lawful commerce b. to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Phil

•

Also liable as principals: a. corporation/association b. agent/representative c. director/manager – who willingly permitted or failed to prevent commission of above offense

•

Aggravated if items are: a. food substance b. motor fuel or lubricants c. goods of prime necessity

Article 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS •

ELEMENTS: a

That the offender imports, sells or disposes of any of those articles or merchandise.

b That the stamps, brands, or marks or those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys. c That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or quality of the metals or alloys. To be criminally liable, it is important to establish that the offender knows the fact that the imported merchandise fails to indicate the actual fineness or quality of the precious metal. If the importer has no expertise on the matter such that he has no way of knowing how the fraud was committed, the existence of such fact may be seriously considered as a defense. What the law punishes herein is the selling of misbranded goods made of gold, silver and other precious metals. Therefore, it must be shown that the seller knows that the merchandise is misbranded. Hence, dishonesty is an essential element of the crime. Article 188

52 Elements and Notes in Criminal Law Book II by RENE CALLANTA SUBSTITUTING – ALTERING TRADE-MARK, TRADENAME, OR SERVICE MARK •

Acts punishable: a By (a) substituting the trade name (t/n) or trademark (t/m) of some other manufacturer or dealer or a colorable imitation thereof, for the t/n or t/m of the real manufacturer or dealer upon any article of commerce and (b) selling the same. b

By selling or by offering for sale such article of commerce, knowing that the t/n or t/m has been fraudulently used

c

By using or substituting the service mark of some other person, or a colorable imitation of such marks, in the sale or advertising of services

d

By printing, lithographing or reproducing t/n, t/m or service mark of one person, or a colorable limitation thereof, to enable another person to fraudulently use the same, knowing the fraudulent purpose for which it is to be used.

•

If a particular person is defrauded by the offender; as in the case of locally manufactured goods, which the offender, by altering the label, are made to appear as imported articles and sold to a particular person, the crime committed is undoubtedly estafa as far as the particular person is concerned. But if the falsely mislabeled goods are displayed in a store and offered for sale to the public in general, the crime committed is punished under Article 188. So, if the deception is isolated and is confined to a particular person or group of persons, estafa is committed. If the fraud is employed against the public, Article 188 is violated.

•

Must not be another manufacturer otherwise unfair competition

Take note that after making the substitution the goods are displayed in the store or market for sale, Article 188 is already committed even if no customer comes to buy any of the goods on display. The mere offer for sale to the public consummates the crime. The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal case. Article 189 UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME, TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION •

•

Acts punished:

a

Unfair competition by selling his goods, giving them the general appearance of the goods of another manufacturer or dealer

b

Fraudulent designation of origin; false description by (a) affixing to his goods or using in connection with his services a false designation of origin; or any false description or representation, and (b) selling such goods or services

c

Fraudulent registration by procuring fraudulently from the patent office the registration of t/m, t/m or service mark.

ELEMENTS: a That the offender gives his goods the general appearance of the goods of another manufacturer or dealer b

That the general appearance is shown in the (a) goods themselves, or in the (b) wrapping of their packages, or in the (c) device or words therein, or in (d) any other feature of their appearance

c

That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose.

d

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

Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is defined as follows: It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established goodwill, or committing any acts calculated to produce such result. The true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221) For unfair competition to take place, it must be the manufacturer of the goods who will cloth or label his goods with the trade name or trademark of another manufacturer, who has established a good name or good will in the mind of the public because of the quality of the merchandise manufactured by him. The imitator is also a manufacturer of the same kind of product but of inferior quality. By labeling his product with the trademark or trade name of said manufacturer, he profits from the goodwill of another. If the labeling or clothing of the goods is not done by another manufacturer, the crime committed is not unfair competition but substitution of trademark or trade name under Article 188. When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement of trade name or trademark. In infringement of trade name or trademark, the offended party has a peculiar symbol or mark on his goods which is considered a property right which must therefore be protected. In unfair competition, the offended party has identified in the mind of the public the goods he manufactures to distinguish it from the goods of the other manufacturers. In infringement of trade name or trademark, the offender uses the trade name or trademark

53 Elements and Notes in Criminal Law Book II by RENE CALLANTA of another in selling his goods, while in unfair competition, the offender gives his goods the general appearance of the goods of another manufacturer and sells the same to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224) TITLE FIVE CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194) COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA No. 9165) I.

Acts Punishable: a. importation of prohibited drugs b. sale, administration, delivery, distribution and transportation of prohibited drugs c. maintenance of a den, dive or resort for prohibited drug users d. being employees or visitors of drug den e. manufacture of prohibited drugs f. possession or use g. cultivation of plants h. failure to comply with provisions relative to keeping of records of prescription i. unnecessary prescription j. possession of opium pipe and other paraphernalia k. Importation, sale, etc. of regulated drugs

DRUG SYNDICATE – any organized group of two(2) or more persons forming or joining together with the intention of committing any offense prescribed under the act. PLANTING OF EVIDENCE – the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. P D E A – Philippine Drug Enforcement Unit •

Importation of prohibited/regulated drugs. PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier

•

and purity involved

Sale, administration, delivery, distribution and transaction of prohibited/regulated drugs.

- NOT BAILABLE PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and purity involved ( includes BROKER ) Qualifying Circumstances – 1) if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this section be the proximate cause of the death of a victim thereof, the maximum penalty herein shall be imposed. 2) Financier 3) Sale made within 100m from school •

Maintenance of a den, dive, or resort for prohibited/regulated drug users. ** Property escheated in favor of the government Qualifying Circumstance – where a prohibited/regulated drug is administered, delivered, or sold to a minor who is allowed to use the same in such place, or should a prohibited drug be the proximate cause of the death of the person using the same in such den, dive or resort, the maximum of the penalty shall be imposed.

•

Manufacture of prohibited/regulated drugs.

• Possession of prohibited/regulated drugs. PENALTY : a. Life to death & fine of 500,000 to 10 million 10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy. 50 gms. Shabu 500 gms. Marijuana b. Life Imprisonment and a fine of P400,000.00-P500,000.00 10-50 gms. Shabu c. 20 years to Life and a fine of 400,000.00-500,000.00 5-10 gms. Shabu d. 12 – 20 years and a fine of 300,000.00-400,000.00 Less than 5 gms. Of any dangerous drugs Possession of paraphernalia 6 mos. – 4 yrs. & fine of 10,000 – 50,000 Use of Dangerous Drugs – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act.

54 Elements and Notes in Criminal Law Book II by RENE CALLANTA If apprehended using any dangerous drug act for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve(12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00); Provided, That this section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. Cultivation of plants which are sources of prohibited drugs. Penalty - Life to death and a fine of P500,000.00 to P10 Million

a

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

b

Qualifying Circumstance – 1. If the land involved is part of the public domain, the maximum of the penalty herein provided shall be imposed. 2. Maximum penalty imposed on financier Failure to keep records of prescription, sales, purchases, acquisitions and/or deliveries of prohibited/regulated drugs Persons liable: Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer, Distributor, Dealer, Retailer Unlawful prescription of prohibited/regulated drugs Penalty – life to death and a fine of P500,000 to P10 Million Unnecessary prescription of prohibited/regulated drugs Penalty – 12 to 20 years and fine of P100,000 to P500,000 plus revocation of license Persons Liable: Physician or dentist who shall prescribe any prohibited/regulated drug for any person whose physical/physiological condition does not require the use of thereof. Confiscation and forfeiture of the proceeds or instruments of the unlawful act, including the properties of the proceeds derived from the illegal trafficking of dangerous drugs. Forfeited infavor of the government After the conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion of his/her income; Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. Custody and disposition of confiscated, seized and/or surrendered dangerous drugs PDEA in charge and custody for proper disposition Procedure in Disposal 1. Apprehending team immediately after seizure shall make physical inventory and photograph the seized drugs in the presence of the accused or his counsel, a representative of the media and DOJ and any elected public official who shall sign the copies of the inventory. 2. Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall be submitted to the PDEA forensic laboratory for a qualitative and quantitative examination. 3. Certification of the forensic examination results shall be issued within 24 hours. 4. After the filing of the criminal case, the proper court shall conduct and ocular inspection within 72 hours of the confiscated, seized and/or surrendered dangerous drugs. 5. After ocular inspection by the court, PDEA shall destroy or burn the confiscated, seized and/or surrendered dangerous drugs within 24 hours in the presence of the accused or his counsel, representative of the media and the DOJ, civil society groups and any elected public officer. 6. PDEA shall issue a certification of such destruction and samples of the dangerous drugs shall be submitted to the court. Plea-Bargaining Any person charged under any commission of this act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. Probation Law Any person convicted for drug trafficking regardless of the penalty imposed cannot avail of the privilege granted by the probation law.

55 Elements and Notes in Criminal Law Book II by RENE CALLANTA Qualifying Aggravating Circumstance 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 application of the penalty provided for in the RPC. Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or otherwise using opium or any other prohibited drug, shall be prima facie evidence that the possessor has smoked, consumed, administered to himself, injected or used a prohibited drug. Attempt and conspiracy to commit the following offenses: a Importation of dangerous drugs

•

b

Sale, administration, delivery, distribution and transportation of dangerous drugs

c

Maintenance of a den, dive or resort for prohibited drugs

d

Manufacture of dangerous drugs

e

Cultivation or culture of plants which are sources of prohibited drugs

Other persons liable: a

If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal.

b

Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control and supervision of the partnership, corporation, association or judicial entity to which they are affiliated.

Criminal liability of a public officer or employee for misappropriation, misapplication or failure to account for the confiscated, seized and/or surrendered dangerous drugs Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to absolute perpetual disqualification from any public office. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs or have received any financial or material contributions from persons found guilty of drug trafficking dangerous drugs, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government. Planting of Evidence Any person who is found guilty of planting any dangerous drug regardless of the quantity and purity, shall suffer the penalty of death. Drug Testing 1. Applicants for driver’s license - mandatory 2. Applicants for firearms license and for permit to carry - mandatory 3. Students of secondary and tertiary schools – random (school shall shoulder expenses) 4. Officers and employees of private and public offices – random (employer shall shoulder expenses) Any officer or employee found positive for use of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination subject to 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 – annual mandatory 6. All persons charged before the prosecutor’s office with a criminal offense having an impossible penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test 7. All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. Issuance of False or fraudulent drug test results (whether willfully or through gross negligence) Penalty – 6 to 12 years and fine P100,000.00 to P500,000.00 Additional penalty – revocation of license to practice and closure of the drug testing center II.

For the purpose of enforcing the provisions of this Act, all school heads, supervisors and teachers shall be deemed to be persons in authority and, as such, are vested with the power to apprehend, arrest, or cause the apprehension or arrest of any person who shall violate any of the said provision.

a.

NOTE: They shall be considered as persons in authority if they are in the school or within its immediate vicinity, or beyond such immediate vicinity if they are in attendance in any school or class function in their official capacity as school heads, supervisors or teachers.

56 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

III.

Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who shall, in turn, report the matter to the proper authorities. Failure to report in either case shall, after hearing, constitute sufficient cause for disciplinary action.

Rules regarding rehabilitation of drug dependents

Voluntary submission

a.

Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4th civil degree of consanguinity or affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug. (Applicable only to those liable for use of dangerous drugs and not to possession and sale)

b.

Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement.

c.

Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment.

d.

If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug.

e.

If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to be a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and transmit records of the case to the Board.

f.

After his rehabilitation, he shall be prosecuted for such violation. In case of conviction, the judgement shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he shall be given full credit for the period he was confined in the center. NOTE: When the offense is use of dangerous drugs and the accused is not a recidivist, the penalty thereof shall be deemed to have been served in the center upon his release therefrom.

g.

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

h.

Requisites of suspension of sentence for first offense in a minor: 1. If accused is a minor (under 18 years of age at the time of the commission of the offense but not more than 21 years of age when the judgement should have been promulgated. 2. He has not been previously convicted of violating any provision of this Act or of the RPC or placed on probation.  Sentence shall be deferred and the accused shall be placed on probation under the supervision of the Board.  In case of violation of conditions of pardon, court shall pronounce judgment of conviction and he shall serve sentence.  If accused did not violate conditions of probation, case shall be dismissed upon expiration of the designated period.

Compulsory submission If a person charged with an offense where the imposable penalty is imprisonment of not more than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor of the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board. Jurisdiction Over Dangerous Drug Cases Section 90. Jurisdiction – The Supreme Court shall designate special courts from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of court designated in each judicial region shall be based on population and the number of cases pending in their respective jurisdiction. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within 24 hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within 48 hours from the receipt of the records of the case. Section 91. Responsibility and Liability of Law Enforcement Agencies and Other Government Officials and Employees Testifying as Prosecution Witnesses in Dangerous Drugs Cases – Any member of law enforcement agencies or any other government official and employees who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to 20 years and a

57 Elements and Notes in Criminal Law Book II by RENE CALLANTA fine of not less than P500,000.00, in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. The immediate superior of a member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than P10,000.00 but not more than P50,000 and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or re-assigned to any other territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reasons; Provided, That his/her immediate superior shall notify the court where the case is pending of the order of transfer or re-assign, within 24 hours from its approval; Provided further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not less than six (6) years and a fine of not less than P10,000.00 but not more than P50,000.00 and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law. Section 92. Delay and Bungling in the Prosecution of Drug Cases. - Any government officer or employee tasked with the prosecution of drug-related cases under this Act, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal ranging from 12 years and 1 day to 20 years without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code.

a

Buy Bust Operation – no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY (P v. Abedes)

b

Absence of ultraviolet powder is not fatal in the prosecution

c

Transportation/importation of MJ – immaterial whether there may or may not be a distinction for the MJ

d

Distinguish Entrapment and Instigation:

1.

If prosecution can prove the crime without presenting the informer or asset – not necessary because their testimonies are merely corroborative. Poseur buyer – it depends on whether the prosecution can prove the crime without their testimonies (P v. Rosalinda Ramos)

2.

Under the RA, special aggravating circumstance if a crime has been committed while the accused was high on drugs (P v. Anthony Belgar)

3.

Delivery or Sale of Prohibited Drugs – the accused must be aware that what he is selling or delivering was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda)

4.

P v. Angelito Manalo – burden of proving the authority to possess shabu is a matter of defense

5.

P v. Hilario Moscaling – court may take judicial notice of the word “shabu”

6.

Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 9165 and malversation under RPC.

e

Planting evidence – to implicate another

f

Buy Bust Operation – form of entrapment (P v. Alberto) – not necessary to have prior police surveillance (P v. Carlos Franca)

g

Possession – constructive or actual – not necessary to adduce the marked money as evidence (P v. Romeo Macara)

h

Separate crimes – sale/possession of MJ found in his possession after he was frisked but he can’t be convicted for possession of MJ that he sold

i

If victim is minor or drug is proximate cause of death – max penalty is imposed

1.

First offense of a minor – suspension of sentence CONDITIONS:  under 18 at time of commission but not more than 21 at time when judgment was promulgated 

found guilty of possession or use of prohibited or regulated drugs



not been previously convicted of violating any provision of this Act or the RPC

58 Elements and Notes in Criminal Law Book II by RENE CALLANTA 

not been placed on probation



defer sentence, place on probation for 6 months to 1 year



violation of probation – pronounce sentence – convict and serve sentence



no violation – discharge him and dismiss the proceeding



if minor is drug dependent – commit to a center for treatment and rehabilitation

TITLE SIX CRIMES AGAINST PUBLIC MORALS Crimes against public morals Gambling (Art. 195); Importation, sale and possession of lottery tickets or advertisements (Art. 196); Betting in sport contests (Art. 197); Illegal betting on horse races (Art. 198); Illegal cockfighting (Art. 199); Grave scandal (Art. 200); Immoral doctrines, obscene publications and exhibitions (Art. 201); and Vagrancy and prostitution (Art. 202). Article 195. What Acts Are Punishable in Gambling Acts punished 1.

Taking part directly or indirectly in – a.

any game of monte, jueteng, or any other form of lottery, policy, banking, or percentage game, dog races, or any other game or scheme the results of which depend wholly or chiefly upon chance or hazard; or wherein wagers consisting of money, articles of value, or representative of value are made; or

b.

the exploitation or use of any other mechanical invention or contrivance to determine by chance the loser or winner of money or any object or representative of value;

2.

Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender;

3.

Being maintainer, conductor, or banker in a game of jueteng or similar game;

4.

Knowingly and without lawful purpose possessing lottery list, paper, or other matter containing letters, figures, signs or symbol which pertain to or are in any manner used in the game of jueteng or any similar game.

What is gambling? It is a game or device or method, the result of which depends wholly or chiefly upon chance or hazard. So, if the game depends wholly upon skill or ability of the players, there is no gambling. The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or chiefly upon chance or hazard. Significantly, if the game has been identified and declared as a form of gambling by express provision of law, there will be no need or requirement to go into the methods upon how the game is played. What is lottery? It is a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for a chance to obtain a prize. (US vs. Filart, et al., 30 Phil. 80) Pinball machines or slot machines are considered gambling devices because the result depends upon chance or hazard. If the prizes do not come out of the funds or contributions of the participants, there is no lottery. (Uy vs. Palomar, 27 SCRA 287) Article 196.

59 Elements and Notes in Criminal Law Book II by RENE CALLANTA IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS Acts punished 1. Importing into the Philippines from any foreign place or port any lottery ticket or advertisement; or 2. Selling or distributing the same in connivance with the importer; 3. Possessing, knowingly and with intent to use them, lottery tickets or advertisements; or 4.

Selling or distributing the same without connivance with the importer of the same.

Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same in the Philippines. Article 197. BETTING IN SPORT CONTESTS This article has been repealed by Presidential Decree No. 483 (Betting, Game-fixing or Point-shaving and Machinations in Sport Contests): PENALIZING BETTING, GAME-FIXING OR POINT-SHAVING AND MACHINATIONS IN SPORTS CONTESTS PD 483 •

Acts Punishable:

a.

Betting: Betting money or any object or article of value of representative value upon the result of any game, races and other sports contests.

b.

Game-fixing: any arrangement, combination, scheme or agreement by which the result of any game, races, or sports contests shall be predicated and/or known other than on the basis of the honest playing skill or ability of the players or participants.

c.

Point-shaving: any such arrangement combination, scheme or agreement by which the skill or ability of any player or participant in a fame, races, or sports contests to make points of scores shall be limited deliberately in order to influence the result thereof in favor of one or other team, player or participant.

d.

Game Machination: any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sports contest. Article 198. ILLEGAL BETTING ON HORSE RACE Acts punished Betting on horse races during periods not allowed by law; Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law. When horse races not allowed: July 4 (Republic Act No. 137); December 30 (Republic Act No. 229); Any registration or voting days (Republic Act No. 180, Revised Election Code); and Holy Thursday and Good Friday (Republic Act No. 946). Article 199. ILLEGAL COCKFIGHTING This article has been modified or repealed by Presidential Decree No. 449 (The Cockfighting Law of 1974): COCKFIGHTING LAW OF 1974 PD 449

I.

Scope – This law shall govern the establishment, operation, maintenance and ownership of cockpits.

II.

Rules: A.

Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operated cockpits.

B.

Only one cockpit shall be allowed in each city or municipality with a population of 100,000 or less.

60 Elements and Notes in Criminal Law Book II by RENE CALLANTA C.

Cockpits shall be constructed and operated within the appropriate areas as prescribed in the Zoning Law or ordinance.

D.

When allowed: 1.

Cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than 3 days; or

2.

During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of 3 days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative.

Limitations: a) No cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of the local fiesta or for more than 2 occasions a year in the same city of municipality. b)

No cockfighting shall be held on December 30, June 12,November 30, Holy Thursday, Good Friday, Election Day and during registration days for such election/referendum.

3.

If the purpose is for the entertainment of foreign dignitaries or for tourists, or for returning balikbayans, or for the support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President upon resolution of a provincial board, city or municipal council, in licensed cockpits or in playgrounds or parks. Limitations: This privilege shall be extended for only one time, for a period not exceeding 3 days, within a year to a province, city or municipality.

E.

No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting during cockfights.

F.

City or municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits.

Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling Laws) Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos shall be imposed upon: (a) Any person other than those referred to in the succeeding subsection who in any manner, shall directly or indirectly take part in any game of cockfighting, jueteng, bookies (jai- alai or horse racing to include game fixing) and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine, “pusoy” or Russian Poker, monte, baccarat and other card games, palk que, domino, mahjong, high and low, slot machines, roulette, pinball and other mechanical inventories or devices, dog racing, boat racing, car raising and other races, basketball, volleyball, boxing, seven-eleven dice games and the like and other 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, which do not have a franchise from the national government, wherein wagers consisting of money, articles of value of representative of value are made; (b) Any person who shall knowingly permit any form of gambling referred to in the preceding subdivision to be carried on in inhabited or uninhabited places or any building, vessel or other means of transportation owned or controlled by him. If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein or the place is a public or government building or barangay hall, the culprit shall be punished by the penalty provided for in its maximum period and a fine of Six Thousand Pesos. The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall be imposed upon the maintainer, conductor of the above gambling schemes. The penalty of prision mayor in its medium degree and temporary absolute disqualification and a fine of Six Thousand Pesos shall be imposed if the maintainer, conductor or banker is a government official, or if a player, promoter, referee, umpire, judge or coach in cases of game-fixing, point-shaving and other game machination. The penalty of prision correccional in its medium degree and a fine ranging from Five Hundred pesos to Two Thousand Pesos shall be imposed upon any person who shall knowingly and without lawful purpose in any hour of any day shall have in his possession any lottery list, paper, or other matter containing letter, figures, signs or symbols which pertain to or in any manner used in the game of jueteng, jai-alai or horse racing bookies and similar game or lottery which has taken place or about to take place. Section 2. Barangay Official. – Any barangay official in whose jurisdiction such gambling house is found and which house has the reputation of a gambling place shall suffer the penalty of prision correccional in its medium period and a fine ranging from Five Hundred to Two Thousand Pesos and temporary absolute disqualifications. While the acts under the Revised Penal Code are still punished under the new law, yet the concept of gambling under it has been changed by the new gambling law. Before, the Revised Penal Code considered the skill of the player in classifying whether a game is gambling or not. But under the new gambling law, the skill of the players is immaterial. Any game is considered gambling where there are bets or wagers placed with the hope to win a prize therefrom.

61 Elements and Notes in Criminal Law Book II by RENE CALLANTA Under this law, even sports contents like boxing, would be gambling insofar as those who are betting therein are concerned. Under the old penal code, if the skill of the player outweighs the chance or hazard involved in winning the game, the game is not considered gambling but a sport. It was because of this that betting in boxing and basketball games proliferated. “Unless authorized by a franchise, any form of gambling is illegal.” So said the court in the recent resolution of the case against the operation of jai-alai. There are so-called parlor games which have been exempted from the operation of the decree like when the games are played during a wake to keep the mourners awake at night. Pursuant to a memorandum circular issued by the Executive Branch, the offshoot of the exemption is the intentional prolonging of the wake of the dead by gambling lords. As a general rule, betting or wagering determines whether a game is gambling or not. Exceptions: These are games which are expressly prohibited even without bets. Monte, jueteng or any form of lottery; dog races; slot machines; these are habit-forming and addictive to players, bringing about the pernicious effects to the family and economic life of the players. Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling. However, it is necessary to make a distinction whether a ticket or list refers to a past date or to a future date. Illustration: X was accused one night and found in his possession was a list of jueteng. If the date therein refers to the past, X cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played on the date stated. Mere possession is not enough. If the date refers to the future, X can be convicted by the mere possession with intent to use. This will already bring about criminal liability and there is no need to prove that the game was played on the date stated. If the possessor was caught, chances are he will not go on with it anymore. There are two criteria as to when the lottery is in fact becomes a gambling game: 1.

If the public is made to pay not only for the merchandise that he is buying, but also for the chance to win a prize out of the lottery, lottery becomes a gambling game. Public is made to pay a higher price.

2.

If the merchandise is not saleable because of its inferior quality, so that the public actually does not buy them, but with the lottery the public starts patronizing such merchandise. In effect, the public is paying for the lottery and not for the merchandise, and therefore the lottery is a gambling game. Public is not made to pay a higher price.

Illustrations: (1)

A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered at stake. To defray the cost of the prices offered in the lottery, the management increased their prices of the merchandise by 10 cents each. Whenever someone buys from that supermarket, he pays 10 cents more for each merchandise and for his purchase, he gets a coupon which is to be dropped at designated drop boxes to be raffled on a certain period. The increase of the price is to answer for the cost of the valuable prices that will be covered at stake. The increase in the price is the consideration for the chance to win in the lottery and that makes the lottery a gambling game. But if the increase in prices of the articles or commodities was not general, but only on certain items and the increase in prices is not the same, the fact that a lottery is sponsored does not appear to be tied up with the increase in prices, therefore not illegal. Also, in case of manufacturers, you have to determine whether the increase in the price was due to the lottery or brought about by the normal price increase. If the increase in price is brought about by the normal price increase [economic factor] that even without the lottery the price would be like that, there is no consideration in favor of the lottery and the lottery would not amount to a gambling game. If the increase in the price is due particularly to the lottery, then the lottery is a gambling game. And the sponsors thereof may be prosecuted for illegal gambling under Presidential Decree No. 1602.

(2)

The merchandise is not really saleable because of its inferior quality. A certain manufacturer, Bhey Company, manufacture cigarettes which is not saleable because the same is irritating to the throat, sponsored a lottery and a coupon is inserted in every pack of cigarette so that one who buys it shall have a chance to participate. Due to the coupons, the public started buying the cigarette. Although there was no price increase in the cigarettes, the lottery can be considered a gambling game because the buyers were really after the coupons not the low quality cigarettes. If without the lottery or raffle, the public does not patronize the product and starts to patronize them only after the lottery or raffle, in effect the public is paying for the price not the product.

Under this decree, a barangay captain who is responsible for the existence of gambling dens in their own locality will be held liable and disqualified from office if he fails to prosecute these gamblers. But this is not being implemented. Gambling, of course, is legal when authorized by law. Fund-raising campaigns are not gambling. They are for charitable purposes but they have to obtain a permit from Department of Social Welfare and Development. This includes concerts for causes, Christmas caroling, and the like.

62 Elements and Notes in Criminal Law Book II by RENE CALLANTA OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Article 200 GRAVE SCANDAL •

•

ELEMENTS: a. Offender performs an act b.

Act is highly scandalous as offending against decency or good customs

c.

Highly scandalous conduct does not expressly fall within any other article of the RPC

d.

Committed in a public place or within the public knowledge or view. (The public view is not required, it is sufficient if in public place. For public knowledge, it may occur even in a private place; the number of people who sees it is not material).

Grave scandal: consists of acts which are offensive to decency and good customs. They are committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts

The crime of grave scandal is a crime against public morals. Necessarily, the offender must commit the crime in a public place or within the view of the public. In grave scandal, the scandal involved refers to moral scandal offensive to decency, although it does not disturb public peace. But such conduct or act must be open to the public view. In alarms and scandals, the scandal involved refers to disturbances of the public tranquility and not to acts offensive to decency.

• • •

Decency: means properly observing the requirements of modesty, good taste etc Customs: refers to established usage, social conventions carried on by tradition and enforced by social disapproval in case of violation If the acts complained of are punishable under another provision of the RPC, Art 200 is not applicable

Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last resort. •

The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be of such character as to cause public scandal to those witnessing it.

Distinction should be made as to the place where the offensive act was committed, whether in the public place or in a private place: (1)

In public place, the criminal liability arises irrespective of whether the immoral act is open to the public view. In short public view is not required.

(2)

When act offensive to decency is done in a private place, public view or public knowledge is required.

Public view does not require numerous persons. Even if there was only one person who witnessed the offensive act for as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. Illustrations: (1)

A man and a woman enters a movie house which is a public place and then goes to the darkest part of the balcony and while there the man started performing acts of lasciviousness on the woman. If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place.

(2)

A man and a woman went to Luneta and slept there. They covered themselves their blanket and made the grass their conjugal bed. This is grave scandal.

(3)

In a certain apartment, a lady tenant had the habit of undressing in her room without shutting the blinds. She does this every night at about eight in the evening. So that at this hour of the night, you can expect people outside gathered in front of her window looking at her silhouette. She was charged of grave scandal. Her defense was that she was doing it in her own house. It is no defense that she is doing it in her private home. It is still open to the public view.

(4)

In a particular building in Makati which stands right next to the house of a young lady who goes sunbathing in her poolside. Every morning several men in the upper floors would stick their heads out to get a full view of said lady while in her two-piece swimsuit. The lady was then charged with grave scandal. Her defense was that it is her own private pool and it is those men looking down at her who are malicious. This is an act which even though done in a private place is nonetheless open to public view.

63 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS: •

• •

Persons liable: a. Those who publicly expound or proclaim doctrines that are contrary to public morals b.

Authors of obscene literature, published with their knowledge in any form

c.

Editors publishing such obscene literature

d.

Owners or operators of establishments selling obscene literature

e.

Those who exhibit indecent or immoral plays, scenes, acts or shows ion theaters, fairs, cinemas or any other place

f.

Those who sell, distribute, or exhibit prints, engraving, sculptures or literature which are offensive to morals

Morals: implies conformity to generally accepted standards of goodness or rightness in conduct or character Test of obscenity: whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency.

The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the performer. If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. The law is not concerned with the moral of one person. As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general. In committing this crime, there must be publicity. It means the act or acts done must come to the knowledge of third persons.

•

However, Art 201 enumerates what are considered as obscene literature or immoral or indecent plays, scenes or acts: a. those w/c glorify criminals or condone crimes b.

those w/c serve no other purpose but to satisfy the market for violence, lust or pornography

c.

those w/c offend against any race or religion

d.

those w/c tend to abet the traffic in and the use of prohibited drugs

e.

those that are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts

•

Mere nudity in paintings and pictures is not obscene

•

Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within this article

•

Publicity is an essential element

Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. The moment the parties carry their private rights and privileges to public view, they expose themselves to public scrutiny. Article 202 VAGRANTS AND PROSTITUTES: •

Who are considered vagrants: a.

Those who have no apparent means of subsistence and who have the physical ability to work yet neglect to apply themselves to some useful calling

b.

Persons found loitering around public and semi-public places without visible means of support

c.

Persons tramping or wandering around the country or the streets with no visible means of support

d.

Idle or dissolute persons lodging in houses of ill-fame

e.

Ruffians or pimps and those who habitually associate with prostitutes (may include even the rich)

f.

Persons found loitering in inhabited or uninhabited places belonging to others, without any lawful or justifiable reason provided the act does not fall within any other article of the RPC

If fenced and with prohibition of entry

Trespass to dwelling

64 Elements and Notes in Criminal Law Book II by RENE CALLANTA If fenced and entered to hunt/fish

Attempted theft

If not fenced and with no prohibition of entry

Vagrancy

•

Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy)

In law the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; it has to be more than one time. There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery. TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS Crimes committed by public officers 1.

Knowingly rendering unjust judgment (Art. 204);

2.

Judgment rendered through negligence (Art. 205);

3.

Unjust interlocutory order (Art. 206);

4.

Malicious delay in the administration of justice (Art. 207);

5.

Prosecution of offenses; negligence and tolerance (Art. 208);

6.

Betrayal of trust by an attorney or solicitor – Revelation of secrets (Art. 209);

7.

Direct bribery (Art. 210);

8.

Indirect bribery (Art. 211);

9.

Qualified bribery (Art. 211-A);

10.

Corruption of public officials (Art. 212);

11.

Frauds against the public treasury and similar offenses (Art. 213);

12.

Other frauds (Art. 214);

13.

Prohibited transactions (Art. 215);

14.

Possession of prohibited interest by a public officer (Art. 216);

15.

Malversation of public funds or property – Presumption of malversation (Art. 217)

16.

Failure of accountable officer to render accounts (Art. 218);

17.

Failure of a responsible public officer to render accounts before leaving the country (Art. 219);

18.

Illegal use of public funds or property (Art. 220);

19.

Failure to make delivery of public funds or property (Art. 221);

20.

Conniving with or consenting to evasion (Art. 223);

21.

Evasion through negligence (Art. 224);

22.

Escape of prisoner under the custody of a person not a public officer (Art. 225);

23.

Removal, concealment or destruction of documents (Art. 226);

24.

Officer breaking seal (Art. 227);

25.

Opening of closed documents (Art. 228);

26.

Revelation of secrets by an officer (Art. 229);

27.

Public officer revealing secrets of private individual (Art. 230);

28.

Open disobedience (Art. 231);

29.

Disobedience to order of superior officer when said order was suspended by inferior officer (Art. 232);

30.

Refusal of assistance (Art. 233);

31.

Refusal to discharge elective office (Art. 234);

32.

Maltreatment of prisoners (Art. 235);

65 Elements and Notes in Criminal Law Book II by RENE CALLANTA 33.

Anticipation of duties of a public office (Art. 236);

34.

Prolonging performance of duties and powers (Art. 237);

35.

Abandonment of office or position (Art. 238);

36.

Usurpation of legislative powers (Art. 239);

37.

Usurpation of executive functions (Art. 240);

38.

Usurpation of judicial functions (Art. 241);

39.

Disobeying request for disqualification (Art. 242);

40.

Orders or requests by executive officers to any judicial authority (Art. 243);

41.

Unlawful appointments (Art. 244); and

42.

Abuses against chastity (Art. 245).

The designation of the title is misleading. Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal. In some cases, it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222 (malversation). Article 203 • WHO ARE PUBLIC OFFICERS: a. Takes part in the performance of public functions in the Government, or b. •

Notes: a.

Performs public duties as an employee, agent or subordinate official in the gov’t or any of its branches Public officer must derive his authority from: 1. direct provision of law 2. popular election 3.appointment by competent authority

In defining the term “public officers”, the law makes the reference to the manner by which he is appointed to public office. He thus becomes a public officer because of his appointment by competent authority or because he is elected to public office.

b.

Public officers: embraces every public servant from the lowest to the highest rank

Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader and more comprehensive because it includes all persons whether an official or an employee, temporary or not, classified or not, contractual or otherwise. Any person who receives compensation for services rendered is a public officer. c.

A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer

Crimes committed by public officers are nothing but corruption in public service. Breach of oath of office partakes of three forms:

d.

Misfeasance: means improper performance of an act which might be properly be performed

e.

Malfeasance: means performance of an act which ought not to be done

f.

Nonfeasance: means omission of an act which ought to be done

Malfeasance

Doing of an act which a public officer should not have done

Misfeasance

Improper doing of an act which a person might lawfully do

Nonfeasance

Failure of an agent to perform his undertaking for the principal

Article 204: KNOWINGLY RENDERING AN UNJUST JUDGMENT •

ELEMENTS: a. Offender is a judge b.

Renders a judgment in the case submitted to him for judgment

66 Elements and Notes in Criminal Law Book II by RENE CALLANTA

•

c.

Judgment is unjust

d.

Knowledge that the decision is unjust

Notes:

a.

Judgment: is a final consideration and determination by a court of competent jurisdiction of the issues submitted to it in an action or proceeding

The law requires that the judgment must be written in the official language, personally and directly prepared by the judge, and signed by him. It must contain a clear and distinct statement of facts proved or admitted by the defendant and upon which the judgment is based.

b.

Unjust judgment: one which is contrary to law, or not supported by the evidence, or both

c. 1. 2. 3.

An unjust judgment may result from: error (with bad faith) ill-will or revenge bribery

d.

There must be evidence that the decision rendered is unjust. It is not presumed

To be liable for the above crime, not only must the judgment be proved to be unjust .it must likewise be established to have been knowingly rendered. There must be a conscious and deliberate intent to do an injustice. This usually occurs when the judge entertains hatred, envy, revenge, or greed against one of the parties. e.

Abuse of discretion or mere error of judgment cannot likewise serve as basis for rendering an unjust judgment in the absence of proof or even an allegation of bad faith (motive or improper consideration).

Article 205 JUDGMENT RENDERED THROUGH NEGLIGENCE •

•

ELEMENTS: a. Offender is a judge b.

Renders a judgment in a case submitted to him for decision

c.

Judgment is manifestly unjust

d.

Due to inexcusable negligence or ignorance

Manifestly unjust judgment: one that is so contrary to law that even a person having meager knowledge of the law cannot doubt the injustice

The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The ignorance may refer to substantive or procedural law. There must be an apparent and notorious manifestation of lack of logic and false interpretation of the law. (Cortes vs. Catral, 279 SCRA 1) Article 206 UNJUST INTERLOCUTORY ORDER •

ELEMENTS: a. That the offender is a judge. b.

That he performs any of the following acts: 1. knowingly renders unjust interlocutory order or decree, or 2. renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance.

•

Interlocutory order: one issued by the court deciding a collateral or incidental matter. It is not a final determination of the issues of the action or proceeding

The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an appellate court. The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is supposedly unjust as held by the Supreme Court in one administrative case. Article 207 MALICIOUS DELAY IN THE ADMINISTRATION OR JUSTICE •

ELEMENTS: a. That the offender is a judge. b.

That there is a proceeding in his court.

67 Elements and Notes in Criminal Law Book II by RENE CALLANTA

•

c.

That he delays the administration of justice.

d.

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 punishable

Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. These have been interpreted by the Supreme Court to refer only to judges of the trial court. The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two years. Before the Court of Appeals, such cases must be resolved within 1 year; and before the Regional Trial Court and Metropolitan Trial Court, such cases must be decided within a period of three months or ninety days. Article 208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE Acts Punished 1.

Maliciously refraining from instituting prosecution against violators of the law;

2.

Maliciously tolerating the commission of offenses.

•

•

ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: a. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses.

b.

That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission (if gift/promise is a consideration for his conduct: direct bribery)

c.

That the offender acts with malice and deliberate intent to favor the violator of the law.

PREVARICACION: negligence and tolerance in the prosecution of an offense

A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense.

•

There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court

When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1)

An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or

(2)

He may become a fence if the crime committed is robbery or theft, in which case he violates the AntiFencing Law; or

(3)

He may be held liable for violating the Anti-Graft and Corrupt Practices Act.

Illustration: The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he becomes a fence. Therefore, he is considered an offender under the Anti-Fencing Law. However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he can be prosecuted under this article. This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime. •

The crime must be proved first before an officer can be convicted of dereliction of duty

•

A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory

•

Article not applicable to revenue officers

68 Elements and Notes in Criminal Law Book II by RENE CALLANTA Relative to this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by Republic Act No. 7659 on the Revised Penal Code is a new provision which reads as follows: Article. 211-A. Qualified Bribery – If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by Reclusion Perpetua and/or death in consideration of any offer, promise, gift, or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death. Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift or present has a consideration on the part of the public officer, that is refraining from arresting or prosecuting the offender in consideration for such offer, promise, gift or present. In a way, this new provision modifies Article 210 of the Revised Penal Code on direct bribery. However, the crime of qualified bribery may be committed only by public officers “entrusted with enforcement” whose official duties authorize then to arrest or prosecute offenders. Apparently, they are peace officers and public prosecutors since the nonfeasance refers to “arresting or prosecuting.” But this crime arises only when the offender whom such public officer refrains from arresting or prosecuting, has committed a crime punishable by reclusion perpetua and/or death. If the crime were punishable by a lower penalty, then such nonfeasance by the public officer would amount to direct bribery, not qualified bribery. If the crime was qualified bribery, the dereliction of the duty punished under Article 208 of the Revised Penal Code should be absorbed because said article punishes the public officer who “maliciously refrains from instituting prosecution for the punishment of violators of the law or shall tolerate the commission of offenses”. The dereliction of duty referred to is necessarily included in the crime of qualified bribery. On the other hand, if the crime was direct bribery under Article 210 of the Revised Penal Code, the public officer involved should be prosecuted also for the dereliction of duty, which is a crime under Article 208 of the Revised Penal Code, because the latter is not absorbed by the crime of direct bribery. This is because in direct bribery, where the public officer agreed to perform an act constituting a crime in connection with the performance of his official duties, Article 210 expressly provides that the liabilty thereunder shall be “in addition to the penalty corresponding to the crime agreed upon, if the crime shall have been committed. Illustration: A fiscal, for a sum of money, refrains from prosecuting a person charged before him. If the penalty for the crime involved is reclusion perpetua, the fiscal commits qualified bribery. If the crime is punishable by a penalty lower than reclusion perpetua, the crime is direct bribery. In the latter situation, three crimes are committed: direct bribery and dereliction of duty on the part of the fiscal; and corruption of a public officer by the giver. Article 209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR (NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT) •

ACTS PUNISHED:

a.

Causing damage to client (prejudice is essential) either 1. by any malicious breach of professional duty, or 2.

by inexcusable negligence or ignorance.

b.

Revealing any of the secrets of his client learned by him in his professional capacity (damage not necessary)

c.

Undertaking the defense of the opposing party of the 1st client and/or having received confidential information from the latter and without the latter’s consent (damage not necessary)

Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon. That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Illustration: B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the same was accepted.

69 Elements and Notes in Criminal Law Book II by RENE CALLANTA A did not commit the crime under Article 209, although the lawyer’s act may be considered unethical. The clientlawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential matter learned by him from B, then Article 209 is violated because it is enough that such confidential matters were communicated to him in his professional capacity, or it was made to him with a view to engaging his professional services. Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his services. Otherwise, the communication shall not be considered privileged and no trust is violated. Illustration: A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal case. If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a counsel. The lawyer must have learned the confidential matter in his professional capacity. Several acts which would make a lawyer criminally liable: (1)

Maliciously causing damage to his client through a breach of his professional duty. The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline;

(2)

Through gross ignorance, causing damage to the client;

(3)

Inexcusable negligence;

(4)

Revelation of secrets learned in his professional capacity;

(5)

Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

Note that only numbers 1, 2 and 3 must approximate malice. A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done. Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latter’s professional capacity. It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client. Breach of professional duty Tardiness in the prosecution of the case for which reason the case was dismissed for being non-prosecuted; or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment. Professional duties – Lawyer must appear on time. But the client must have suffered damage due to the breach of professional duty. Otherwise, the lawyer cannot be held liable. If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for reconsideration which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage. If lawyer was neglectful in filing an answer, and his client declared in default, and there was an adverse judgment, the client suffered damages. The lawyer is liable. Breach of confidential relation Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party. There is no need to prove that the client suffered damages. The mere breach of confidential relation is punishable. In a conjugal case, if the lawyer disclosed the confidential information to other people, he would be criminally liable even though the client did not suffer any damage. The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The lawyer talked about this to a friend. He is, thus, liable. Article 210 DIRECT BRIBERY •

ELEMENTS: a. That the offender be a public officer within the scope of Art 203

70 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

That the offender accepts an offer or promise or receives a gift or present by himself or through another

c.

That such offer or promise be accepted or gift/present received by the public officer (mere agreement consummates the crime)

1.

with a view to committing some crime (delivery of consideration is not necessary) or

2.

in consideration of an execution of an act which does not constitute a crime, but the act must be unjust (delivery of consideration is necessary), or 3. d.

to refrain from doing something which is his official duty to do

That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties

Bribery refers to the act of the receiver and the act of the giver is corruption of public official.

• •

For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him

•

Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties

•

Cannot be frustrated, only attempted or consummated.

Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is already consummated. In short, the offender could not have performed all the acts of execution to produce the felony without consummating the same. Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will, the crime was not committed. It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds. Illustrations: (1)

If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the corruption, the offense is attempted corruption only and not frustrated. The official did not agree to be corrupted. If the public officer did not report the same to his superior and actually accepted it, he allowed himself to be corrupted. The corruptor becomes liable for consummated corruption of public official. The public officer also becomes equally liable for consummated bribery.

(2)

If a public official demanded something from a taxpayer who pretended to agree and use marked money with the knowledge of the police, the crime of the public official is attempted bribery. The reason is that because the giver has no intention to corrupt her and therefore, he could not perform all the acts of execution. Be sure that what is involved is a crime of bribery, not extortion. If it were extortion, the crime is not bribery, but robbery. The one who yielded to the demand does not commit corruption of a public officer because it was involuntary.

•

• • •

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

solicited by the public officer and voluntarily delivered by the private person

c.

solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness)

Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime in addition to the penalty for bribery

71 Elements and Notes in Criminal Law Book II by RENE CALLANTA In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already. If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime. Illustrations: (1)

If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official. If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public records for which they shall be liable as principals; one as principal by inducement, the other as principal by direct participation.

(2)

A party litigant approached the court’s stenographer and proposed the idea of altering the transcript of stenographic notes. The court stenographer agreed and he demanded P 2,000.00. Unknown to them, there were law enforcers who already had a tip that the court stenographer had been doing this before. So they were waiting for the chance to entrap him. They were apprehended and they said they have not done anything yet. Under Article 210, the mere agreement to commit the act, which amounts to a crime, is already bribery. That stenographer becomes liable already for consummated crime of bribery and the party who agreed to give that money is already liable for consummated corruption, even though not a single centavo is delivered yet and even though the stenographer had not yet made the alterations. If he changed the transcript, another crime is committed: falsification.

The same criterion will apply with respect to a public officer who agrees to refrain from performing his official duties. If the refraining would give rise to a crime, such as refraining to prosecute an offender, the mere agreement to do so will consummate the bribery and the corruption, even if no money was delivered to him. If the refraining is not a crime, it would only amount to bribery if the consideration be delivered to him. If it is not a crime, the consideration must be delivered by the corruptor before a public officer can be prosecuted for bribery. Mere agreement, is not enough to constitute the crime because the act to be done in the first place is legitimate or in the performance of the official duties of the public official. Unless the public officer receives the consideration for doing his official duty, there is no bribery. It is necessary that there must be delivery of monetary consideration. This is so because in the second situation, the public officer actually performed what he is supposed to perform. It is just that he would not perform what he is required by law to perform without an added consideration from the public which gives rise to the crime. The idea of the law is that he is being paid salary for being there. He is not supposed to demand additional compensation from the public before performing his public service. The prohibition will apply only when the money is delivered to him, or if he performs what he is supposed to perform in anticipation of being paid the money. Here, the bribery will only arise when there is already the acceptance of the consideration because the act to be done is not a crime. So, without the acceptance, the crime is not committed. •

The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion

Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him. If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term “consideration.” The public officer in Indirect bribery is not to perform any official act. Note however that what may begin as an indirect bribery may actually ripen into direct bribery. Illustration: Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found out that he is a taxi operator. As far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. It is just indirect bribery If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes direct bribery.

72 Elements and Notes in Criminal Law Book II by RENE CALLANTA Bribery (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution.

Robbery (294) When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him of his personal property. Victim parts with his money or property voluntarily. Victim is deprived of his money or property by force or intimidation. Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a person, employing intimidation and threatening to arrest the latter if he will not come across with money may be guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually committed a crime, and the policeman demanded money so he will not be arrested, the crime is Bribery. But if no crime has been committed and the policeman is falsely charging him of having committed one, threatening to arrest him if he will not come across with some consideration, the crime is Robbery. Article 211 INDIRECT BRIBERY •

ELEMENTS: a. That the offender is a public officer. b.

That he accepts gifts.

c.

That the said gifts are offered to him by reason of his office.

• The gift is given in anticipation of future favor from the public officer Indirect bribery, the public officer receives or accepts gifts, money or anything of value by reason of his office. If there is only a promise of a gift or money, no crime is committed because of the language of the law which uses the phrase “shall accept gifts.” •

There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer

The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him. •

• • •

There is no attempted or frustrated indirect bribery The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service

Article 211-A QUALIFIED BRIBERY •

ELEMENTS: a. Public officer entrusted with law enforcement b.

Refrains from arresting/prosecuting offender for crime punishable by reclusion perpetua and/or death (if lower penalty than stated above, the crime is direct bribery)

c. In consideration of any offer, promise or gift Note that the penalty is DEATH if the public officer is the one who asks or demands such present. He need not receive the gift or present because a mere offer or promise is sufficient. Article 212 CORRUPTION OF PUBLIC OFFICIALS •

ELEMENTS: a. That the offender makes offers or promises or gives gifts or present to a public officer. b.

•

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

The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished

Presidential Decree No. 46

73 Elements and Notes in Criminal Law Book II by RENE CALLANTA Presidential Decree No. 46 prohibits giving and acceptance of gifts by a public officer or to a public officer, even during anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary. The Presidential Decree punishes both receiver and giver. The prohibition giving and receiving gifts given by reason of official position, regardless of whether or not the same is for past or future favors. The giving of parties by reason of the promotion of a public official is considered a crime even though it may call for a celebration. The giving of a party is not limited to the public officer only but also to any member of his family. Presidential Decree No. 749 The decree grants immunity from prosecution to a private person or public officer who shall voluntarily give information and testify in a case of bribery or in a case involving a violation of the Anti-graft and Corrupt Practices Act. It provides immunity to the bribe-giver provided he does two things: (1)

He voluntarily discloses the transaction he had with the public officer constituting direct or indirect bribery, or any other corrupt transaction;

(2)

He must willingly testify against the public officer involved in the case to be filed against the latter.

Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five conditions have to be met: (1)

Information must refer to consummated bribery;

(2)

Information is necessary for the proper conviction of the public officer involved;

(3)

That the information or testimony to be given is not yet in the possession of the government or known to the government;

(4)

That the information can be corroborated in its material points;

(5)

That the informant has not been convicted previously for any crime involving moral turpitude.

These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure. The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. If there were other transactions where the informant also participated, he is not immune from prosecution. The immunity in one transaction does not extend to other transactions. The immunity attaches only if the information given turns out to be true and correct. If the same is false, the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him. Republic Act No. 7080 (Plunder) Plunder is a crime defined and penalized under Republic Act No. 7080, which became effective in 1991. This crime somehow modified certain crimes in the Revised Penal Code insofar as the overt acts by which a public officer amasses, acquires, or accumulates ill-gotten wealth are felonies under the Revised Penal Code like bribery (Articles 210, 211, 211-A), fraud against the public treasury [Article 213], other frauds (Article 214), malversation (Article 217), when the ill-gotten wealth amounts to a total value of P50,000,000.00. The amount was reduced from P75,000,000.00 by Republic Act No. 7659 and the penalty was changed from life imprisonment to reclusion perpetua to death. Short of the amount, plunder does not arise. Any amount less than P50,000,000.00 is a violation of the Revised Penal Code or the Anti-Graft and Corrupt Practices Act. Under the law on plunder, the prescriptive period is 20 years commencing from the time of the last overt act. Plunder is committed through a combination or series of overt acts: (1)

Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

(2)

By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project by reason of the office or position of the public officer;

(3)

By illegal or fraudulent conveyance or disposition of asset belonging to the national government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

(4)

By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business or undertaking;

(5)

By establishing agricultural, industrial, or commercial monopolies or other combinations and/or implementations of decrees and orders intended to benefit particular persons or special interests; or

74 Elements and Notes in Criminal Law Book II by RENE CALLANTA (6)

By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people, and the Republic of the Philippines.

While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that “in the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court”.

ANTI-GRAFT AND CORRUPT PRACTICES ACT RA 3019 •

a.

Persons Liable: Any public officer who shall perform any of the following acts: 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.

2.

Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or for any other person in connection with any contract or transaction between the government and any other party wherein the public officer in his official capacity has to intervene under the law.

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 of capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the held given or to be given.

4.

Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its 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 official, administrative or judicial function 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.

6.

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

8.

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

9.

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

10. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. 11. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. b.

Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material, or pecuniary advantage from any person having some business, transaction, application, request, or contact with the government in which such public official has to intervene (Sec. 4)

c.

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

d.

Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the president of the Philippines, the vice-president, the president of the Senate, or speaker of the house of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the gov’t (Sec. 5).

75 Elements and Notes in Criminal Law Book II by RENE CALLANTA This prohibition shall not apply to: 1. Any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the gov’t along the same line of business; 2. Any transaction, contract or application already existing or pending at the time of such assumption of public office; 3. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; 4.

III.

Any act lawfully performed an official capacity or in the exercise of a profession.

e.

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

f.

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

Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8)

•

If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income.

•

Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown.

•

Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income.

III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. 10). In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher; PNP officers occupying the rank of superintendent or higher of their equivalent, exclusive jurisdiction over the case shall be vested in the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. The decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction over them. IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11). V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14). Once the case is filed with the Sandiganbayan, by express provision of the law, it becomes incumbent upon the court to place under preventive suspension the public officer who stands accused before it. However, before the order of suspension is issued, it is necessary that a pre-suspension hearing be held by the court wherein the accused is afforded the opportunity to challenge the validity of the information filed against him. Such right of the accused to challenge the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis-àvis the essential elements of the offense as defined by substantive law; (b) the right to challenge the validity of the criminal proceedings leading to the filing of the information, i.e., that he has not been afforded the right of due preliminary investigation, or that the acts for which he stands charged do not constitute a violation of the provisions of R.A. No. 3019, which would warrant his mandatory suspension from office under Section 13 of this Act; and (c) the right to raise the issue that the information can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court (People vs. Albano, 163 SCRA 511). Once the information is found to be sufficient in form and substance, the court must issue the suspension order as a matter of course and there are no ifs and buts about it (Bayot vs. Sandiganbayan, et al., 128 SCRA 383). Preventive suspension is resorted to in order to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office because the presumption is that unless the accused is suspended, he may frustrate his prosecution to commit further acts of malfeasance or both (Bayot vs. Sandiganbayan, et al., supra). “When the administrative case against the officer or employee under preventive suspension is not finally disposed of by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.”(Segovia vs. Sandiganbayan) ORTEGA NOTES: The mere act of a public officer demanding an amount from a taxpayer to whom he is to render public service does not amount to bribery, but will amount to a violation of the Anti-graft and Corrupt Practices Act.

76 Elements and Notes in Criminal Law Book II by RENE CALLANTA Illustration: A court secretary received P500 .00 from a litigant to set a motion for an early hearing. This is direct bribery even if the act to be performed is within his official duty so long as he received a consideration therefor. If the secretary persuaded the judge to make a favorable resolution, even if the judge did not do so, this constitutes a violation of Anti-Graft and Corrupt Practices Act, Sub-Section A. Under the Anti-Graft and Corrupt Practices Act, particularly Section 3, there are several acts defined as corrupt practices. Some of them are mere repetitions of the act already penalized under the Revised Penal Code, like prohibited transactions under Article 215 and 216. In such a case, the act or omission remains to be mala in se. But there are acts penalized under the Anti-Graft and Corrupt Practices Act which are not penalized under the Revised Penal Code. Those acts may be considered as mala prohibita. Therefore, good faith is not a defense. Illustration: “ CATCH ALL PROVISION” Section 3 (e) of the Anti-Graft and Corrupt Practices Act – causing undue injury to the government or a private party by giving unwarranted benefit to the party whom does not deserve the same. In this case, good faith is not a defense because it is in the nature of a malum prohibitum. Criminal intent on the part of the offender is not required. It is enough that he performed the prohibited act voluntarily. Even though the prohibited act may have benefited the government. The crime is still committed because the law is not after the effect of the act as long as the act is prohibited. Section 3 (g) of the Anti-Graft and Corrupt Practices Act – where a public officer entered into a contract for the government which is manifestly disadvantageous to the government even if he did not profit from the transaction, a violation of the Anti-Graft and Corrupt Practices Act is committed. If a public officer, with his office and a private enterprise had a transaction and he allows a relative or member of his family to accept employment in that enterprise, good faith is not a defense because it is a malum prohibitum. It is enough that that the act was performed. Where the public officer is a member of the board, panel or group who is to act on an application of a contract and the act involved one of discretion, any public officer who is a member of that board, panel or group, even though he voted against the approval of the application, as long as he has an interest in that business enterprise whose application is pending before that board, panel or group, the public officer concerned shall be liable for violation of the Anti-Graft and Corrupt Practices Act. His only course of action to avoid prosecution under the Anti-graft and Corrupt Practices Act is to sell his interest in the enterprise which has filed an application before that board, panel or group where he is a member. Or otherwise, he should resign from his public position. Illustration: Sen. Dominador Aytono had an interest in the Iligan Steel Mills, which at that time was being subject of an investigation by the Senate Committee of which he was a chairman. He was threatened with prosecution under Republic Act No. 3019 so he was compelled to sell all his interest in that steel mill; there is no defense. Because the law says so, even if he voted against it, he commits a violation thereof. These cases are filed with the Ombudsman and not with the regular prosecutor’s office. Jurisdiction is exclusively with the Sandiganbayan. The accused public officer must be suspended when the case is already filed with the Sandiganbayan. Under the Anti-Graft and Corrupt Practices Act, the public officer who is accused should not be automatically suspended upon the filing of the information in court. It is the court which will order the suspension of the public officer and not the superior of that public officer. As long as the court has not ordered the suspension of the public officer involved, the superior of that public officer is not authorized to order the suspension simply because of the violation of the Anti-Graft and Corrupt Practices Act. The court will not order the suspension of the public officer without first passing upon the validity of the information filed in court. Without a hearing, the suspension would be null and void for being violative of due process. Illustration: A public officer was assigned to direct traffic in a very busy corner. While there, he caught a thief in the act of lifting the wallet of a pedestrian. As he could not leave his post, he summoned a civilian to deliver the thief to the precinct. The civilian agreed so he left with the thief. When they were beyond the view of the policeman, the civilian allowed the thief to go home. What would be the liability of the public officer? The liability of the traffic policeman would be merely administrative. The civilian has no liability at all. Firstly, the offender is not yet a prisoner so there is no accountability yet. The term “prisoner” refers to one who is already booked and incarcerated no matter how short the time may be. The policeman could not be said as having assisted the escape of the offender because as the problem says, he is assigned to direct traffic in a busy corner street. So he cannot be considered as falling under the third 3rd paragraph of Article 19 that would constitute his as an accessory. The same is true with the civilian because the crime committed by the offender, which is snatching or a kind of robbery or theft as the case may be, is not one of those crimes mentioned under the third paragraph of Article 19 of the Revised Penal Code. Where the public officer is still incumbent, the prosecution shall be with the Ombudsman. Where the respondent is separated from service and the period has not yet prescribed, the information shall be filed in any prosecution’s office in the city where the respondent resides. The prosecution shall file the case in the Regional

77 Elements and Notes in Criminal Law Book II by RENE CALLANTA Trial Court unless the violation carries a penalty higher than prision correccional, in which case the Sandiganbayan has jurisdiction. The fact that the government benefited out of the prohibited act is no defense at all, the violation being mala prohibita. Section 3 (f) of the Anti-Graft and Corrupt Practices Act – where the public officer neglects or refuses to act on a matter pending before him for the purpose of obtaining any pecuniary or material benefit or advantage in favor of or discriminating against another interested party. The law itself additionally requires that the accused’s dereliction, besides being without justification, must be for the purpose of obtaining from any person interested in the matter some pecuniary or material benefit or for the purpose of favoring any interested party, or discriminating against another interested party. This element is indispensable. In other words, the neglect or refusal to act must motivated by gain or benefit, or purposely to favor the other interested party as held in Coronado v. SB, decided on August 18, 1993. Republic Act No. 1379 (Forfeiture of Ill-gotten Wealth) Correlate with RA 1379 -- properly under Remedial Law. This provides the procedure for forfeiture of the ill-gotten wealth in violation of the Anti-Graft and Corrupt Practices Act. The proceedings are civil and not criminal in nature. Any taxpayer having knowledge that a public officer has amassed wealth out of proportion to this legitimate income may file a complaint with the prosecutor’s office of the place where the public officer resides or holds office. The prosecutor conducts a preliminary investigation just like in a criminal case and he will forward his findings to the office of the Solicitor General. The Solicitor General will determine whether there is reasonable ground to believe that the respondent has accumulated an unexplained wealth. If the Solicitor General finds probable cause, he would file a petition requesting the court to issue a writ commanding the respondent to show cause why the ill-gotten wealth described in the petition should not be forfeited in favor of the government. This is covered by the Rules on Civil Procedure. The respondent is given 15 days to answer the petition. Thereafter trial would proceed. Judgment is rendered and appeal is just like in a civil case. Remember that this is not a criminal proceeding. The basic difference is that the preliminary investigation is conducted by the prosecutor.

FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Article 213 FRAUDS AGAINST PUBLIC TREASURY •

•

ELEMENTS: (par. 1) a. That the offender be a public officer. b.

That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity.

c.

That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds.

d.

That the accused had intent to defraud the government.

Notes: a. b.

The public officer must act in his official capacity The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government

The essence of this crime is making the government pay for something not received or making it pay more than what is due. It is also committed by refunding more than the amount which should properly be refunded. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions, connives with the said supplier with the intention to defraud the government. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low. Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along a street and no one knows how much it will cost. An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury. If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud is in the implementation of procurement. That would constitute the crime of “other fraud” in Article 214, which is in the nature of swindling or estafa. Be sure to determine whether fraud is against public treasury or one under Article 214.

78 Elements and Notes in Criminal Law Book II by RENE CALLANTA ILLEGAL EXACTIONS (par 2) •

ELEMENTS: a. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts. b.

He is guilty of any of the following acts or omissions: 1. demanding, directly or indirectly the payment of sums different from or larger than those authorized by law, or 2. failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, or 3. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.

•

Notes:

This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government. a.

Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to gov’t is not required)

On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime. In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government. The amount being demanded maybe less than the amount due the government. b.

If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery

c.

When there is deceit in demanding larger fees, the crime committed is estafa

d.

May be complexed with malversation

Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can be expected that such public officer will not turn over his collection to the government. Illustrations: (1)

A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00.

(2)

Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer who has been defrauded of his P100.00 because he can never claim a refund from the government for excess payment since the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed is estafa.

(3)

A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00. In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount received from the taxpayer in an official receipt will have the characteristics of becoming a part of the public funds. The crimes committed, therefore, are the following:

79 Elements and Notes in Criminal Law Book II by RENE CALLANTA (a)

Illegal exaction – for collecting more than he is authorized to collect. The mere act of demanding is enough to constitute this crime.

(b)

Falsification – because there was an alteration of official document which is the duplicate of the official receipt to show an amount less than the actual amount collected.

(c)

Malversation – because of his act of misappropriating the P100.00 excess which was covered by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own benefit, he was not extracting private funds anymore but public funds.

Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation. It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed. If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3)

The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following crimes were committed: (a)

Illegal exaction – for demanding a different amount;

(b)

Estafa – for deceiving the taxpayer; and

(c)

Malversation – for getting the P100.00 from the vault.

Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and subsequent extraction thereof constitutes malversation. Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense. The issuance of the Official Receipt is the operative fact to convert the payment into public funds. The payor may demand a refund by virtue of the Official Receipt. In cases where the payor decides to let the official to “keep the change”, if the latter should pocket the excess, he shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the owner of the bigger amount becomes the owner of the whole. On the second form of illegal exaction The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. Illustration: If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary failure to issue the Official Receipt. On the third form of illegal exaction Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of that person. Illustration:

80 Elements and Notes in Criminal Law Book II by RENE CALLANTA A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on. The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to the taxpayer himself, unless the check is a manager’s check or a certified check, amended already as of 1990. (See the case of Roman Catholic.) Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue Code. This crime does not require damage to the government. Officers and employees of the BIR or Customs are not covered by the article. The NIRC or Administrative Code is the applicable law These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal Article 214 OTHER FRAUDS •

•

ELEMENTS: a. That the offender is a public officer. b.

That he takes advantage of his official position.

c.

That he commits any of the frauds or deceits enumerated in art. 315 to 318. (estafa; swindling)

Note: RTC has jurisdiction over the offense because the principal penalty is disqualification

Article 215 PROHIBITED TRANSACTIONS •

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ELEMENTS: a. That the offender is an appointive public officer. b.

That he becomes interested, directly or indirectly, in any transaction of exchange or speculation.

c.

That the transaction takes place within the territory subject to his jurisdiction.

d.

That he becomes interested in the transaction during his incumbency.

Notes:

a.

Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price

b.

Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation

Article 216 POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER •

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Who are liable:

a.

Public officer – in any contract or business in which it is his official duty to intervene.

b.

Experts, arbitrators and private accountants – in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted.

c.

Guardians and executors – with respect to property belonging to their wards or the estate.

Notes: a. b.

Actual fraud is not necessary. 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

The mere violation of the prohibition is already punished even if no actual fraud occurs 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 he represents. (U. S. vs. Udarbe, 28 Phil. 383)

Section 14, Article VI of the Constitution No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the

81 Elements and Notes in Criminal Law Book II by RENE CALLANTA Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. Section 13, Article VII of the Constitution The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. Section 2, Article IX-A of the Constitution No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. MALVERSATION OF PUBLIC FUNDS OR PROPERTY Article 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY •

ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY : a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)

b.

That he had the custody or control of funds or property (if not accountable for the funds, theft or qualified theft)

c.

That those funds or property were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds)

d.

That he: 1. 2.

Appropriated the funds or property Took or misappropriated them

3.

Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed) Concept of Malversation It consists in the misappropriation or conversion of public funds or property to one’s personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a good father of a family. He is accountable by virtue of the nature of his office to account for funds or properties that come to his possession. If he is not accountable for the funds or properties and he misappropriates the same, the crime will not be malversation but estafa under Article 315.

•

Malversation is otherwise called embezzlement

This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy. In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that controls. While the name of the office is important, what is controlling is whether in performing his duties as a public officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money or property that came into his possession. It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another. •

It can be committed either with malice or through negligence or imprudence

There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether committed through dolo or culpa. There is no crime of malversation under Article 365 – on criminal negligence – because in malversation under Article 217, the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act.

•

In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation

82 Elements and Notes in Criminal Law Book II by RENE CALLANTA The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence. Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.

•

The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa

When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also. Illustration: If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of malversation even though the property belonged to a private person. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be theft, simple or qualified.

Estafa It is usually committed by a private individual Funds or property of misappropriation are privately owned. The offender appropriates personally the funds or property. •

Malversation Committed by accountable public officers The object is public fund or property. Personal appropriation is not indispensable because allowing others to commit the misappropriation is also malversation.

When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation

Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government.

•

In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice

Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss.

•

The measure of negligence to be observed is the standard of care commensurate with the occasion

•

When malversation is not committed through negligence, lack of criminal intent or good faith is a defense

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The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise

An accountable public officer may be convicted even if there is no direct evidence of misappropriation and the only evidence is the shortage in his account which he has not been able to explain satisfactorily. (Palma Gil vs. People) If a public officer reports the loss of money before a cash examination is conducted and the cause of the loss as reported has a distinct ring of truth to it, the legal presumption of prima facie evidence of guilt will not apply. In order to support conviction, the prosecution must prove the actual misappropriation of the missing funds.(Salvacion vs. The Honorable Sandiganbayan, G. R. No. 68233, July 11, 1986) To rebut the presumption of guilt prima facie under Article 217, the accused must raise the issue of accuracy, correctness and regularity in the conduct of audit. If asked for a second audit before the filing of the information against him and the same was denied, and during the trial, some disbursement vouchers were introduced which were not considered in the first audit, the denial of the request for a second audit is fatal to the cause of the prosecution because in the meantime, the evidence introduced does not establish a fact beyond reasonable doubt. Had the reaudit requested by the accused been accorded due course, the remaining balance could have been satisfactorily accounted for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9, 1989) •

Returning the embezzled funds is not exempting, it is only mitigating

Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability.

•

There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place

83 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation

It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It is enough that he has violated the trust reposed on him in connection with the property. •

Demand as well as damage to the government are not necessary elements

Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust. The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against the “vales” or chits given in exchange by the borrowers. (Meneses vs. Sandiganbayan) A private person may also commit malversation under the following situations: (1)

Conspiracy with a public officer in committing malversation;

(2)

When he has become an accomplice or accessory to a public officer who commits malversation;

(3)

When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same;

(4)

When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.

Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latter’s own personal use. In technical malversation, the public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance. Recourse: File the proper information. Article 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS •

ELEMENTS: a. That the offender is a public officer, whether in the service or separated therefrom. b.

That he must be an accountable officer for public funds property.

c.

That he is required by law or regulation to render accounts to the commission on audit, or to a provincial auditor.

d. That he fails to do so for a period of two months after such accounts should be rendered. The public officers who are bound to render accounts are the following: 1. cashiers 2. storekeepers 3. warehousemen and 4. those who by the nature of their position become custodian or public funds or property.

•

Note: Demand and misappropriation are not necessary

It is sufficient that there is a law or regulation requiring him to render an account. It is the failure to follow the requirement of the law that is made punishable. It is not necessary that the offender prevent the situation of the crime being committed because of the failure of the accountable officer to render an account. Article 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY •

ELEMENTS: a. That the offender is a public officer. b.

That he must be an accountable officer for public funds or property.

c.

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.

Who can commit this crime? A responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on Audit.

•

Note: The act of leaving the Philippines must be unauthorized or not permitted by law

Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really misappropriated public funds.

84 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation) •

ELEMENTS: a. That the offender is a public officer. b.

That there is public fund or property under his administration.

c.

That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation even if applied to other public purpose).

d.

That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.

The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for which it was appropriated by law or ordinance. Instead of applying it to the public purpose to which the fund or property was already appropriated by law, the public officer applied it to another purpose.

• •

To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use Absence of damage is only a mitigating circumstance

Since damage is not an element of malversation, even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law, the public officer involved is still liable for technical malversation. If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only. Illustration: The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved maybe immaterial but the cashier commits malversation pure and simple. This crime can also be committed by a private person. Illustration: A certain road is to be cemented. Bags of cement were already being unloaded at the side. But then, rain began to fall so the supervisor of the road building went to a certain house with a garage, asked the owner if he could possibly deposit the bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were transferred to the garage of the private person. After the public officer had left, and the workers had left because it is not possible to do the cementing, the owner of the garage started using some of the cement in paving his own garage. The crime of technical malversation is also committed. Note that when a private person is constituted as the custodian in whatever capacity, of public funds or property, and he misappropriates the same, the crime of malversation is also committed. See Article 222. Illustration: The payroll money for a government infrastructure project on the way to the site of the project, the officers bringing the money were ambushed. They were all wounded. One of them, however, was able to get away from the scene of the ambush until he reached a certain house. He told the occupant of the house to safeguard the amount because it is the payroll money of the government laborers of a particular project. The occupant of the house accepted the money for his own use. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is public fund or property. Article 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ELEMENTS: a. b.

Offender has gov’t funds or property in his possession He is under obligation to either: 1. make payment from such funds 2. to deliver property in his custody or administration when ordered by competent authority

c.

•

He maliciously fails or refuses to do so

Note: Penalty is based on value of funds/property to be delivered

85 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 222 PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221 a.

Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property

b.

Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual

•

Sheriffs and receivers fall under the term “administrator”

•

A judicial administrator in charge of settling the estate of the deceased is not covered by the article

Here, the funds or property belong to private individuals, but they are considered public funds or property if they come to the possession of the public officer because of 1) a writ of attachment; or 2) if they are seized by virtue of a search warrant. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial proceedings. Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime. INFIDELITY OF PUBLIC OFFICERS Article 223 CONNIVING WITH OR CONSENTING TO EVASION •

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ELEMENTS: a. That the offender is a public officer (on duty). b.

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment.

c.

That such prisoner escaped from his custody

d.

That he was in connivance with the prisoner in the latter’s escape

Detention prisoner: refers to a person in legal custody, arrested for and charged with some crime or public offense

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The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. Neither is mere leniency or laxity in the performance of duty constitutive of infidelity

•

There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment

A municipal mayor who utilized the prisoner’s services for domestic chores in his house, including using him as a cook is liable for faithlessness in the custody of prisoner (Art. 223) even though the convict may not have fled, in as much as the prisoner’s leaving the prison was effected through him. (People vs. Evangelista, C.A. 38 O.G. 158). Article 224 EVASION THROUGH NEGLIGENCE •

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ELEMENTS: a. That the offender is a public officer. b.

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment.

c.

That such prisoner escapes through his negligence.

d.

Penalty based on nature of imprisonment

The article punishes a definite laxity which amounts to deliberate non-performance of a duty

Not every error is negligence under this article. To be liable, the negligence must be notorious and apparent. The laxity must be definite and must seriously suggest a deliberate non-performance of a duty. The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate nonperformance of the jailer or the guard. So that if a policemen on guard duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises, but on the latter’s third trip to a nearby faucet, he walked behind the police headquarters climbed over the wall and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G. 580). •

The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation

•

The liability of an escaping prisoner:

a.

if he is a prisoner by final judgment, he is liable for evasion of service (art 157)

86 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).

Article 225 ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER •

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ELEMENTS:

a.

That the offender is a private person (note: must be on duty)

b.

That the conveyance or custody of a prisoner or person under arrest is confined to him.

c.

That the prisoner or person under arrest escapes.

d.

That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence

Note: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested

The offender under this article is not the one who arrested the escaping prisoner but one who agreed to have the custody or charge of the prisoner or person under arrest. ORTEGA NOTES: The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the offender who aided or consented to the prisoner’s escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156. The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail. Note that you do not apply here the principle of conspiracy that the act of one is the act of all. The party who is not the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner. He commits the crime of delivering prisoners from jail.

Question & Answer If a private person approached the custodian of the prisoner and for a certain consideration, told the custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had been committed? It is not infidelity in the custody of prisoners because as far as the private person is concerned, this crime is delivering prisoners from jail. The infidelity is only committed by the custodian. This crime can be committed also by a private person if the custody of the prisoner has been confided to a private person. Illustration: A policeman escorted a prisoner to court. After the court hearing, this policeman was shot at with a view to liberate the prisoner from his custody. The policeman fought the attacker but he was fatally wounded. When he could no longer control the prisoner, he went to a nearby house, talked to the head of the family of that house and asked him if he could give the custody of the prisoner to him. He said yes. After the prisoner was handcuffed in his hands, the policeman expired. Thereafter, the head of the family of that private house asked the prisoner if he could afford to give something so that he would allow him to go. The prisoner said, “Yes, if you would allow me to leave, you can come with me and I will give the money to you.” This private persons went with the prisoner and when the money was given, he allowed him to go. What crime/s had been committed? Under Article 225, the crime can be committed by a private person to whom the custody of a prisoner has been confided. Where such private person, while performing a private function by virtue of a provision of law, shall accept any consideration or gift for the non-performance of a duty confided to him, Bribery is also committed. So the crime committed by him is infidelity in the custody of prisoners and bribery. If the crime is delivering prisoners from jail, bribery is just a means, under Article 156, that would call for the imposition of a heavier penalty, but not a separate charge of bribery under Article 156. But under Article 225 in infidelity, what is basically punished is the breach of trust because the offender is the custodian. For that, the crime is infidelity. If he violates the trust because of some consideration, bribery is also committed. A higher degree of vigilance is required. Failure to do so will render the custodian liable. The prevailing ruling is against laxity in the handling of prisoners. Illustration: A prison guard accompanied the prisoner in the toilet. While answering the call of nature, police officer waiting there, until the prisoner escaped. Police officer was accused of infidelity.

87 Elements and Notes in Criminal Law Book II by RENE CALLANTA There is no criminal liability because it does not constitute negligence. Negligence contemplated here refers to deliberate abandonment of duty. Note, however, that according to a recent Supreme Court ruling, failure to accompany lady prisoner in the comfort room is a case of negligence and therefore the custodian is liable for infidelity in the custody of prisoner. Prison guard should not go to any other place not officially called for. This is a case of infidelity in the custody of prisoner through negligence under Article 224. INFIDELITY IN CUSTODY OF DOCUMENTS Article 226 REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS •

ELEMENTS: a. That the offender be a public officer. b.

That he abstracts, destroys or conceals a document or papers.

c.

That the said document or paper should have been entrusted to such public officer by reason of his office.

d.

That damage, whether serious or not, to a third party or to the public interest should have been caused.

The act of obstruction, destruction or concealment must cause damage to a third party or to the public interest. Damage to a third party is usually pecuniary; but damage to public interest may consist in mere alarm to the public or the alienation of its confidence on any branch of the government service.

•

The document must be complete and one by which a right could be established or an obligation could be extinguished

•

Books, periodicals, pamphlets etc are not documents

•

“Papers” would include checks, promissory notes and paper money

Removal of a document presupposes unlawful appropriation of the official document. Destruction means to render the document useless. Its nature to prove the existence of a fact is lost such that it cannot anymore prove the probability or improbability of a fact in issue. Concealment on the other hand means to make it appear that the document is not available. •

•

A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers Removal of a document or paper must be for an illicit purpose.

If the removal of the document is for a lawful purpose and that is, to secure the same from imminent danger or loss, there is no crime committed under the law, (Kataniag vs. People, 74 Phil. 45). •

There is a. b. c.

illicit purpose when the intention of the offender is to: tamper with it to profit by it to commit any act constituting a breech of trust in the official thereof

The act of removal, destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750, Jan. 30, 1984). •

Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished

Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents. •

Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose

Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a document and not as money. Although such monetary consideration acquires the nature of a document, the best evidence rule does not apply here. Example, photocopies may be presented in evidence. •

Delivering the document to the wrong party is infidelity in the custody thereof

•

The damage may either be great or small

Damage to public interest is necessary. However, material damage is not necessary. Although there is no material damage caused, mere delay in rendering public service is considered damage.

88 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

The offender must be in custody of such documents

Distinction between infidelity in the custody of public document, estafa and malicious mischief In infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. In estafa, the offender is not the custodian of the document removed or concealed. In malicious mischief, the offender purposely destroyed and damaged the property/document.

Article 227 OFFICER BREAKING SEAL •

ELEMENTS : a. That the offender is a public officer. b.

That he is charged with the custody of papers or property.

c.

That these papers or property are sealed by proper authority.

d.

That he breaks the seals or permits them to be broken.

•

It is the breaking of the seals and not the opening of a closed envelope which is punished

•

Damage or intent to cause damage is not necessary; damage is presumed

If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the same. Just trying to discover or look what is inside is infidelity already. A crime is already committed regardless of whether the contents of the document are secret or private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. Public trust is already violated if he managed to look into the contents of the document. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. There is theft if there is intent to gain when the offender took the money. Note that the document must be complete in legal sense. If the writings are mere form, there is no crime. Illustration: As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal. Article 228 OPENING OF CLOSED DOCUMENTS •

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ELEMENTS: a. That the offender is a public officer. b.

That any closed papers, documents, or objects are entrusted to his custody.

c.

That he opens or permits to be opened said closed papers, documents or objects.

d.

That he does not have proper authority.

Note: Damage also not necessary

In Article 227, the mere breaking of the seal is what is made punishable while in Article 228, the mere opening of closed documents is enough to hold the offender criminally liable. The breaking of the seal or the opening of the closed document must be done without lawful authority or order from competent authority. In both offenses, damage to the public interest is not required. REVELATION OF SECRETS Article 229 REVELATION OF SECRET BY AN OFFICER •

ELEMENTS OF PAR.1: BY REASON OF HIS OFFICIAL CAPACITY a. That the offender is a public officer.

89 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

That he knows of a secret by reason of his official capacity.

c.

That he reveals such secret without authority or justifiable reasons.

d. •

Notes: a.

That damage, great or small, be caused to the public interest. (damage is essential) Secret must affect public interest

The secrets referred to in this article are those which have an official or public character. It does not include secret information regarding private individuals. Nor does it include military or State secrets in as much as the revelation of the same is classified as espionage, a crime in violation of the national security of the State.

•

•

b.

Secrets of a private individual is not included

c.

Espionage for the benefit of another State is not contemplated by the article. If regarding military secrets or secrets affecting state security, the crime may be espionage.

ELEMENTS OF PAR 2 – DELIVERING WRONGFULLY PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED: a. That the offender is a public officer. b.

That he has charge of papers.

c.

That those papers should not be published.

d.

That he delivers those papers or copies thereof to a third person.

e.

That the delivery is wrongful.

f.

That damage be caused to public interest.

Notes:

a.

“Charge”: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article

b.

If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents

c.

Damage is essential to the act committed

Article 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL •

ELEMENTS: a. That the offender is a public officer b.

That he knows of the secret of a private individual by reason of his office.

c.

That he reveals such secrets without authority or justification reason.

•

Revelation to one person is sufficient

•

If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an attorney)

•

Damage to private individual is not necessary OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

Article 231 OPEN DISOBEDIENCE •

ELEMENTS: a. That the offender is a judicial or executive officer. b.

That there is a judgment, decision or order of superior authority.

c.

That such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities.

d.

that the offender without any legal justification openly refuses to execute the said judgment, decision or order which he is duty bound to obey.

The gravamen of the offense is the open refusal of the offender to execute the order without justifiable reason.

90 Elements and Notes in Criminal Law Book II by RENE CALLANTA •

Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal solemnities required

The term “execute” as found in the law does not only means performance of an act since the judgment, decision or order may also direct the non-performance of an act. The article does not apply to the members of Congress.

Article 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER •

•

ELEMENTS: a. That the offender is a public officer. b.

That an order is issued by his superior for execution.

c.

That he has for any reason suspended the execution of such order.

d.

That his superior disapproves the suspension of the execution of the order.

e.

That the offender disobeys his superior despite the disapproval of the suspension.

Note: A public officer is not liable if the order of the superior is illegal

What is contemplated here is a situation where the subordinate has some doubts regarding the legality of the order. Hence, he is afforded an opportunity to suspend the execution of the order, so as to give him time to further study the same. He commits no crime for doing this act. However, if he continues to suspend the execution of the order notwithstanding the disapproval by his superior of the stay of the execution, such refusal on his part already constitutes a crime punishable under this article.

Article 233 REFUSAL OF ASSISTANCE •

ELEMENTS: a. That the offender is a public officer. b.

That a competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service.

c.

That the offender fails to do so maliciously.

•

Involves a request from one public officer to another

•

Damage to the public interest or third party is essential

Damage is essential whether great or small. But the penalty is affected by the seriousness of the damage. Note that the refusal must be done with malice. •

Demand is necessary

The situation contemplated herein may refer to the administration of justice before the case is filed in court. Competent authority may refer to persons in authority who are charged by the law to help in the administration of justice. The term may refer to police authorities. However, when a case under investigation reaches the court, the remedy may not be limited to incurring criminal liability under this article because the refusal may already be punished as direct or indirect contempt of court. This is a crime, which a policeman may commit when, being subpoenaed to appear in court in connection with a crime investigated by him but because of some arrangement with the offenders, the policeman does not appear in court anymore to testify against the offenders. He tried to assail the subpoena so that ultimately the case would be dismissed. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty. Article 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE •

ELEMENTS: a. That the offender is elected by popular election to a public office. b.

That he refuses to be sworn in or discharge the duties of said office.

c.

That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office.

91 Elements and Notes in Criminal Law Book II by RENE CALLANTA After proclamation of a candidate to a public office, it becomes his duty to render public service. Since it is his duty, then his refusal to perform such duty is punishable under the law.

•

Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen may be required to render service

Article 235 MALTREATMENT OF PRISONERS •

ELEMENTS: a. That the offender is a public officer or employee.

b.

That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries)

c.

That he maltreats such prisoner in either of the following manners: 1. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either –  

by the imposition of punishments not authorized by the regulations, or by inflicting such punishments (those authorized) in a cruel and humiliating manner, or

2. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner. The maltreatment does not really require physical injuries. authorized if executed in excess of the prescribed degree.

Any kind of punishment not authorized or though

But if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime. If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree. •

The public officer must have actual charge of the prisoner in order to be held liable

If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries. If a Barangay Captain maltreats a person after the latter’s arrest but before confinement, the offense is not maltreatment but physical injuries. The victim must actually be confined either as a convict or a detention prisoner for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366). •

To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while

The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked and incarcerated no matter how short it is. Illustration: A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. Every time a policeman entered the police precinct, he would ask, “What is this fellow doing here? What crime has he committed?”. The other policeman would then tell, “This fellow is a snatcher.” So every time a policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because the offender is not the custodian. The crime is only physical injuries. But if the custodian is present there and he allowed it, then he will be liable also for the physical injuries inflicted, but not for maltreatment because it was not the custodian who inflicted the injury. But if it is the custodian who effected the maltreatment, the crime will be maltreatment of prisoners plus a separate charge for physical injuries. • Offender may also be held liable for physical injuries or damage caused Article 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE •

ELEMENTS: a. That the offender is entitled to hold a public office or employment, either by election or appointment. b. That the law requires that he should first be sworn in and/or should first give a bond. c. That he assumes the performance of the duties and powers of such office.

92 Elements and Notes in Criminal Law Book II by RENE CALLANTA d. 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: a. That the offender is holding a public office. b.

That the period provided by law, regulations or special provisions for holding such office has already expired.

c.

That he continues to exercise the duties and powers of such office.

Note: The article contemplates officers who have been suspended, separated or declared over-aged or dismissed

The crime is committed only if the public officer has lost every right to the office because there are offices which require the officer to continue serving as such properly relieved. The law is intended to put an end to the “principle of hold – over”. Article 238 ABANDONMENT OF OFFICE OR POSITION ELEMENTS: a.

•

That the offender is a public officer.

b.

That he formally resigns from his position.

c.

That his resignation has not yet been accepted.

d.

That he abandons his office to the detriment of the public service.

There must be formal or written resignation

Oral resignation is not allowed. The resignation must be in writing and directed to the appointing power who has the authority to accept or disapprove the same. This requirement is indispensable because the letter of resignation goes into a process. •

The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing, prosecuting or punishing any of the crimes against national security. The penalty is higher ( one degree ). This involves the following crimes: a. treason b. conspiracy and proposal to commit conspiracy c. misprision of treason d. espionage e. inciting to war or giving motives to reprisals f. violation of neutrality g. correspondence with hostile country h. flight to enemy country i. piracy and mutiny on the high seas j. rebellion k. conspiracy and proposal to commit rebellion l. disloyalty to public officers m. inciting to rebellion n. sedition o. conspiracy to commit sedition p. inciting to sedition

Abandonment of Office or Position (238) There is actual abandonment through resignation to evade the discharge of duties.

Dereliction of Duty (208) Public officer does not abandon his office but merely fails to prosecute a violation of the law.

Article 239 USURPATION OF LEGISLATIVE POWERS ELEMENTS: a.

That the offender is an executive or judicial officer.

b. 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: a. That the offender is a judge.

93 Elements and Notes in Criminal Law Book II by RENE CALLANTA b.

•

That he (a.) assumes a power pertaining to the executive authorities, or (b.) obstructs executive authorities in the lawful exercise of their powers.

Note: Legislative officers are not liable for usurpation of executive functions

Article 241 USURPATION OF JUDICIAL FUNCTIONS ELEMENTS: a. That the offender is an officer of the executive branch of the government. b.

•

That he (a.) assumes judicial powers, or (b.) obstruct the execution of any order decision rendered by any judge within his jurisdiction.

Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality

Article 242 DISOBEYING REQUEST FOR DISQUALIFICATION ELEMENTS: a. That the offender is a public officer. b.

That a proceeding is pending before such public officer.

c.

That there is a question brought before the proper authority regarding his jurisdiction, which is not yet decided.

d.

That he has been lawfully required to refrain from continuing the proceeding.

e.

That he continues the proceeding.

Even if the jurisdiction of the offender is later upheld or sustained, he is still liable because what is in issue is not the legality of his jurisdiction, but whether he obeyed or disobeyed the temporary restraining order issued by the higher authority. Article 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY ELEMENTS: a. That the offender is an executive officer.

•

b.

That he addresses any order or suggestion to any judicial authority.

c.

That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice.

Note: Legislative or judicial officers are not liable under this article

Article 244 UNLAWFUL APPOINTMENTS ELEMENTS: a. That the offender is a public officer.

•

b.

That he nominates or appoints a person to a public office.

c.

That such person lacks the legal qualification therefor.

d.

That the offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.

Recommending, knowing that the person recommended is not qualified is not a crime

The word “nominate” is not the same as “recommend.” To nominate is to guarantee to the appointing power that the person nominated has all the qualifications to the office. Recommendation on the other hand does not make any guarantee as to the legal fitness of the candidate to public office. •

There must be a law providing for the qualifications of a person to be nominated or appointed to a public office

Article 245 ABUSES AGAINST CHASTITY ELEMENTS:

94 Elements and Notes in Criminal Law Book II by RENE CALLANTA a.

That the offender is a public officer.

b.

That he solicits or makes immoral or indecent advances to a woman.

c.

That such woman must be – 1. 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 2. under the custody of the offender who is a warden or other public officer directly charged with care and custody of prisoners or person under arrest, or 3. the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender

Only a lady can be a complainant here so that a gay guard or warden who makes immoral proposals or indecent advances to a male prisoner is not liable under this law. Mere indecent solicitation or advances of a woman over whom the public officer exercises a certain influence because the woman is involved in a case where the offender is to make a report of result with superiors or otherwise a case which the offender was investigating. This crime is also committed if the woman is a prisoner and the offender is her jail warden or custodian, or even if the prisoner may be a man if the jail warden would make the immoral solicitations upon the wife, sister, daughter, or relative by affinity within the same degree of the prisoner involved. •

The mother of the person in the custody of the public officer is not included

This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity. If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not require that the custodian be a man but requires that the offended be a woman.

•

Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman

The word “solicit” means to demand earnestly. In this case, the demand is for sexual favor. It must be immoral or indecent and done by the public officer taking advantage of his position as one who can help by rendering a favorable decision or unwarranted benefits, advantage or preference to a person under his custody. •

The crime is consummated by mere proposal

It is not necessarily for the offended party to surrender her virtue to consummate the crime. Mere proposal is sufficient to consummate the crime. Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not change the crime because the crime seeks to penalize the taking advantage of official duties. It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed. Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed. If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other. •

Proof of solicitation is not necessary when there is sexual intercourse

Republic Act No. 7877 (Anti-Sexual Harassment Act) Committed by any person having authority, influence or moral ascendancy over another in a work, training or education environment when he or she demands, requests, or otherwise requires any sexual favor from the other regardless of whether the demand, request or requirement for submission is accepted by the object of the said act (for a passing grade, or granting of scholarship or honors, or payment of a stipend, allowances, benefits, considerations; favorable compensation terms, conditions, promotions or when the refusal to do so results in a detrimental consequence for the victim). Also holds liable any person who directs or induces another to commit any act of sexual harassment, or who cooperates in the commission, the head of the office, educational or training institution solidarily. Complaints to be handled by a committee on decorum, which shall be determined by rules and regulations on such. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.

95 Elements and Notes in Criminal Law Book II by RENE CALLANTA

TITLE EIGHT CRIMES AGAINST PERSONS Crimes against persons 1.

Parricide (Art. 246);

2.

Murder (Art. 248);

3.

Homicide (Art. 249);

4.

Death caused in a tumultuous affray (Art. 251);

5.

Physical injuries inflicted in a tumultuous affray (Art. 252);

6.

Giving assistance to suicide (Art. 253);

7.

Discharge of firearms (Art. 254);

8.

Infanticide (Art. 255);

9.

Intentional abortion (Art. 256);

10.

Unintentional abortion (Art. 257);

11.

Abortion practiced by the woman herself or by her parents (Art. 258);

12.

Abortion practiced by a physician or midwife and dispensing of abortives (Art. 259);

13.

Duel (Art. 260);

14.

Challenging to a duel (Art. 261);

15.

Mutilation (Art. 262);

16.

Serious physical injuries (Art. 263);

17.

Administering injurious substances or beverages (Art. 264);

18.

Less serious physical injuries (Art. 265);

19.

Slight physical injuries and maltreatment (Art. 266); and

20.

Rape (Art. 266-A). DESTRUCTION OF LIFE

Article 246 PARRICIDE ELEMENTS: 1. That a person is killed. 2.

That the deceased is killed by the accused.

96 Elements and Notes in Criminal Law Book II by RENE CALLANTA 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.

Notes: 1.

The relationship of the offender with the victim is the essential element of the felony

The relationship must be in the direct line and not in the collateral line. The relationship between the offender and the offended party must be legitimate, except when the offender and the offended party are related as parent and child. Except between husband and wife, the offender must be related to the offended party by blood. 2.

Parents and children are not included in the term “ascendants” or “descendants”

3. The other ascendant or descendant must be legitimate. On the other hand, the father, mother or child may be legitimate or illegitimate If the offender and the offended party, although related by blood and in the direct line, are separated by an intervening illegitimate relationship, parricide can no longer be committed. The illegitimate relationship between the child and the parent renders all relatives after the child in the direct line to be illegitimate too. The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as the offender and the offended parties. Illustration: A is the parent of B, the illegitimate daughter. B married C and they begot a legitimate child D. If D, daughter of B and C, would kill A, the grandmother, the crime cannot be parricide anymore because of the intervening illegitimacy. The relationship between A and D is no longer legitimate. Hence, the crime committed is homicide or murder. A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of Parricide because in case of other ascendants (grandparents, great grandparents, etc.), the relationship with the killer must be legitimate. The same is true with other descendants – that is, grandchildren, great grandchildren, etc. 4.

The child should not be less than 3 days old. Otherwise, the offense is infanticide

That the mother killed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide and intent to conceal her dishonor is considered mitigating. 5.

Relationship must be alleged

In killing a spouse, there must be a valid subsisting marriage at the time of the killing. Also, the information should allege the fact of such valid marriage between the accused and the victim. In a ruling by the Supreme Court, it was held that if the information did not allege that the accused was legally married to the victim, he could not be convicted of parricide even if the marriage was established during the trial. In such cases, relationship shall be appreciated as generic aggravating circumstance. The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. There is no parricide if the other wives are killed although their marriage is recognized as valid. This is so because a Catholic man can commit the crime only once. If a Muslim husband could commit this crime more than once, in effect, he is being punished for the marriage which the law itself authorized him to contract. 6.

A stranger who cooperates in committing parricide is liable for murder or homicide

Since parricide is a crime of relationship, if a stranger conspired in the commission of the crime, he cannot be held liable for parricide. His participation would make him liable for murder or for homicide, as the case may be. The rule of conspiracy that the act of one is the act of all does not apply here because of the personal relationship of the offender to the offended party. Illustration: A spouse of B conspires with C to kill B. C is the stranger in the relationship. C killed B with treachery. The means employed is made known to A and A agreed that the killing will be done by poisoning. As far as A is concerned, the crime is based on his relationship with B. It is therefore parricide. The treachery that was employed in killing Bong will only be generic aggravating circumstance in the crime of parricide because this is not one crime that requires a qualifying circumstance. But that same treachery, insofar as C is concerned, as a stranger who cooperated in the killing, makes the crime murder; treachery becomes a qualifying circumstance.

7.

Even if the offender did not know that the person he had killed is his son, he is still liable for parricide because the law does not require knowledge of the relationship Article 365 expressly provides that parricide can be committed through reckless imprudence. The penalty will not be under Article 246 but under Article 365. Similarly, parricide can be committed by mistake. This is demonstrated in a situation where a person wanting to kill a stranger, kills his own father by mistake. Although the crime committed is parricide, the offender will not be punished under Article 246 but under Article 49, which prescribes a penalty much lower than that provided under Article 246.

97 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 247 DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES Requisites:

1.

A legally married person or parent surprises his spouse or daughter (the latter must be under 18 and living with them) in the act of committing sexual intercourse with another person

2.

He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter

3.

He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to the infidelity of the other spouse.

Notes: 1.

Article does not define or penalize a felony

Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting circumstance as the penalty is intended more for the protection of the accused than a punishment. Death under exceptional character can not be qualified by either aggravating or mitigating circumstances. If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of Parricide and Murder or Homicide if the victims were killed. 2.

Not necessary that the parent be legitimate

3.

Article applies only when the daughter is single

4.

Surprise: means to come upon suddenly or unexpectedly

5. Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another person. However, it is enough that circumstances reasonably show that the carnal act is being committed or has been committed It is not necessary that the spouse actually saw the sexual intercourse being committed. It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed. The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this article may be applied if the mistake of facts is proved. The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife. 6.

Sexual intercourse does not include preparatory acts

So if the surprising took place before any actual sexual intercourse could be done because the parties are only in their preliminaries, the article cannot be invoked anymore.

7.

Immediately thereafter: means that the discovery, escape, pursuit and the killing must all form parts of one continuous act The phrase “immediately thereafter” has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process. If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore. 8.

The killing must be the direct by-product of the rage of the accused

Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. What is required is that the killing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The killing should have been actually motivated by the same blind impulse. 9. No criminal liability is incurred when less serious or slight physical injuries are inflicted. Moreover, in case third persons caught in the crossfire suffer physical injuries, the accused is not liable. The principle that one is liable for the consequences of his felonious act is not applicable because he is not committing a felony In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. Inflicting death under exceptional circumstances is not murder. The accused was held liable for negligence under the first part, second paragraph of Article 365, that is, less serious physical injuries through simple negligence. No aberratio ictus because he was acting lawfully. A person who acts under Article 247 is not committing a crime. Since this is merely an exempting circumstance, the accused must first be charged with:

98 Elements and Notes in Criminal Law Book II by RENE CALLANTA (1)

Parricide – if the spouse is killed;

(2)

Murder or homicide – depending on how the killing was done insofar as the paramour or the mistress is concerned;

(3)

Homicide – through simple negligence, if a third party is killed;

(4) Physical injuries – through reckless imprudence, if a third party is injured. If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability. Article 248 MURDER ELEMENTS : 1. That a person was killed. 2.

That the accused killed him.

3.

That the killing was attended by any of the following qualifying circumstances

4.

a.

with treachery, taking advantage of superior strength, with the aid or armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity

b.

in consideration of price, reward or promise

c.

by means of inundation, fire, poison, explosion, shipwreck, stranding of vessel, derailment or assault upon a street car or locomotive, fall of airship, by means of motor vehicles or with the use of any other means involving great waste or ruin

d.

on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or any other public calamity

e.

with evident premeditation

f.

with cruelty, by deliberately and inhumanely augmenting the suffering of the victim or outraging or scoffing at his person or corpse

The killing is not parricide or infanticide.

Notes: While the circumstance of “by a band” is not among those enumerated that could qualify killing to murder, it would seem that if the killers constituted a band, the crime is murder because the circumstance of “with the aid of armed men” is included in the qualifying circumstances. 1. The victim must be killed in order to consummate the offense. Otherwise, it would be attempted or frustrated murder Killing a person with treachery is murder even if there is no intent to kill. (People vs. Cagoco, 58 Phil. 530) 2. Any of the qualifying circumstances must be alleged in the information. Otherwise, they will only be considered as generic aggravating circumstances When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be treated or separated as generic aggravating circumstances. (People vs. Remalante, 92 Phil. 48) 3.

Treachery and premeditation are inherent in murder with the use of poison

Ortega Notes: In murder, any of the following qualifying circumstances is present: (1)

Treachery, taking advantage of superior strength, aid or armed men, or employing means to waken the defense, or of means or persons to insure or afford impunity; There is treachery when the offender commits any of the crimes against the person employing means, methods or forms in the execution thereof that tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. This circumstance involves means, methods, form in the execution of the killing which may actually be an aggravating circumstance also, in which case, the treachery absorbs the same. Illustration: A person who is determined to kill resorted to the cover of darkness at nighttime to insure the killing. Nocturnity becomes a means that constitutes treachery and the killing would be murder. But if the aggravating circumstance of nocturnity is considered by itself, it is not one of those which qualify a homicide

99 Elements and Notes in Criminal Law Book II by RENE CALLANTA to murder. One might think the killing is homicide unless nocturnity is considered as constituting treachery, in which case the crime is murder. The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, form in executing the crime deliberately adopted by the offender. It is a matter of whether or not the offended party was denied the chance of defending himself. If the offended was denied the chance to defend himself, treachery qualifies the killing to murder. If despite the means resorted to by the offender, the offended was able to put up a defense, although unsuccessful, treachery is not available. Instead, some other circumstance may be present. Consider now whether such other circumstance qualifies the killing or not. Illustration: If the offender used superior strength and the victim was denied the chance to defend himself, there is treachery. The treachery must be alleged in the information. But if the victim was able to put up an unsuccessful resistance, there is no more treachery but the use of superior strength can be alleged and it also qualifies the killing to murder. One attendant qualifying circumstance is enough. If there are more than one qualifying circumstance alleged in the information for murder, only one circumstance will qualify the killing to murder and the other circumstances will be taken as generic. To be considered qualifying, the particular circumstance must be alleged in the information. If what was alleged was not proven and instead another circumstance, not alleged, was established during the trial, even if the latter constitutes a qualifying circumstance under Article 248, the same can not qualify the killing to murder. The accused can only be convicted of homicide. Generally, murder cannot be committed if at the beginning, the offended had no intent to kill because the qualifying circumstances must be resorted to with a view of killing the offended party. So if the killing were at the “spur of the moment”, even though the victim was denied the chance to defend himself because of the suddenness of the attack, the crime would only be homicide. Treachery contemplates that the means, methods and form in the execution were consciously adopted and deliberately resorted to by the offender, and were not merely incidental to the killing. If the offender may have not intended to kill the victim but he only wanted to commit a crime against him in the beginning, he will still be liable for murder if in the manner of committing the felony there was treachery and as a consequence thereof the victim died. This is based on the rule that a person committing a felony shall be liable for the consequences thereof although different from that which he intended. Illustration: The accused, three young men, resented the fact that the victim continued to visit a girl in their neighborhood despite the warning they gave him. So one evening, after the victim had visited the girl, they seized and tied him to a tree, with both arms and legs around the tree. They thought they would give him a lesson by whipping him with branches of gumamela until the victim fell unconscious. The accused left not knowing that the victim died. The crime committed was murder. The accused deprived the victim of the chance to defend himself when the latter was tied to a tree. Treachery is a circumstance referring to the manner of committing the crime. There was no risk to the accused arising from the defense by the victim. Although what was initially intended was physical injury, the manner adopted by the accused was treacherous and since the victim died as a consequence thereof, the crime is murder -- although originally, there was no intent to kill. When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. So long as the means, methods and form in the execution is deliberately adopted, even if there was no intent to kill, there is treachery. (2)

In consideration of price, reward or promises;

(3)

Inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of a motor vehicle, or with the use of other means involving great waste and ruin; The only problem insofar as the killing by fire is concerned is whether it would be arson with homicide, or murder. When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide. But this is not a complex crime under Article 48. This is single indivisible crime penalized under Article 326, which is death as a consequence of arson. That somebody died during such fire would not bring about murder because there is no intent to kill in the mind of the offender. He intended only to destroy property. However, a higher penalty will be applied.

When killing was accomplished “by means of fire” alleged in the information, it does not qualify killing to Murder unless the use of fire was employed to kill the victim.

100 Elements and Notes in Criminal Law Book II by RENE CALLANTA In People v. Pugay and Samson, 167 SCRA 439, there was a town fiesta and the two accused were at the town plaza with their companions. All were uproariously happy, apparently drenched with drink. Then, the group saw the victim, a 25 year old retard walking nearby and they made him dance by tickling his sides with a piece of wood. The victim and the accused Pugay were friends and, at times, slept in the same place together. Having gotten bored with their form of entertainment, accused Pugay went and got a can of gasoline and poured it all over the retard. Then, the accused Samson lit him up, making him a frenzied, shrieking human torch. The retard died. It was held that Pugay was guilty of homicide through reckless imprudence. Samson only guilty of homicide, with the mitigating circumstance of no intention to commit so grave a wrong. There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It was merely a part of their fun making but because their acts were felonious, they are criminally liable. (4)

On occasion of any of the calamities enumerated in the preceding paragraph c, or an earthquake, eruption of volcano, destructive cyclone, epidemic or any other public calamity;

(5)

Evident premeditation; and

When the actual victim turns out to be different from the intended victim, premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307) (6)

Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder. Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed, the killing is still qualified to murder although the acts done no longer amount to cruelty. Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Illustration: Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have murder because this circumstance is recognized under Article 248, even though it was inflicted or was committed when the victim was already dead.

The following are holdings of the Supreme Court with respect to the crime of murder: (1)

Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his tender age results in the absence of any danger to the aggressor.

(2)

Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced.

(3

Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery.

(4)

Treachery is inherent in poison.

(5)

Where one of the accused, who were charged with murder, was the wife of the deceased but here relationship to the deceased was not alleged in the information, she also should be convicted of murder but the relationship should be appreciated as aggravating.

(6)

Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery.

(7)

Where the accused housemaid gagged a three year old boy, son of her master, with stockings, placed him in a box with head down and legs upward and covered the box with some sacks and other boxes, and the child instantly died because of suffocation, and then the accused demanded ransom from the parents, such did not convert the offense into kidnapping with murder. The accused was well aware that the child could be suffocated to death in a few minutes after she left. Ransom was only a part of the diabolical scheme to murder the child, to conceal his body and then demand money before discovery of the body.

The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot, murder and not kidnapping with murder is committed.

Article 249 HOMICIDE ELEMENTS: 1. That a person was killed. 2.

That the accused killed him without any justifying circumstances.

101 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3.

That the accused had the intention to kill, which is presumed.

4.

That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.

Notes: Homicide is the unlawful killing of a person not constituting murder, parricide or infanticide. 1. Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide 2. In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim Distinction between homicide and physical injuries: In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result, and not the intent of the act. The following are holdings of the Supreme Court with respect to the crime of homicide: (1)

Physical injuries are included as one of the essential elements of frustrated homicide.

(2)

If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death, both of them are liable for the death of the victim and each of them is guilty of homicide.

(3)

If the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence.

(4)

Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide.

(5)

When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim, all are liable for the victim’s death.

Note that while it is possible to have a crime of homicide through reckless imprudence, it is not possible to have a crime of frustrated homicide through reckless imprudence. If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing rules and regulations, there is no Homicide to speak of. If he hit his opponent below the belt without any intention to do so, it is Homicide Through Reckless Imprudence if the latter died as a result. If he intentionally hit his opponent on that part of his body causing the death, the crime is Homicide. The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. (People vs. Porras, 255 SCRA 514).

Common misconception on the meaning of corpus delicti. Corpus delicti means body of the crime. It does not refer to the body of the murdered person. In all crimes against persons in which the death of the victim is an element of the crime, there must be proof of the fact of death and identity of the victim. (Cortez vs. Court of Appeals, 162 SCRA 139) Article 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE Article 251 DEATH IN A TUMULTOUS 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.

3.

That these several persons quarreled and 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.

6.

That the person or persons who inflicted serious physical injuries or who used violence can be identified.

Notes: 1.

Tumultuous affray exists when at least 4 persons take part in it

102 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2.

When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray

3. a.

Persons liable are: person/s who inflicted serious physical injuries

b. if it is not known who inflicted serious physical injuries on the deceased, all persons who used violence upon the person of the victim If those who actually killed the victim can be determined, they will be the ones to be held liable, and those who inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no conspiracy is established with the killers. Tumultuous affray simply means a commotion in a tumultuous and confused manner, to such an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual perpetrator. It is necessary that the very person who caused the death can not be known, not that he can not be identified. Because if he is known but only his identity is not known, then he will be charged for the crime of homicide or murder under a fictitious name and not death in a tumultuous affray. If there is a conspiracy, this crime is not committed. To be considered death in a tumultuous affray, there must be: (1)

a quarrel, a free-for-all, which should not involve organized group; and

(2)

someone who is injured or killed because of the fight.

The person killed in the affray need not be one of the participants. As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1)

The persons who inflicted serious physical injury upon the victim;

(2)

If they could not be known, then anyone who may have employed violence on that person will answer for his death.

(3)

If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.

Article 252 PHYSICAL INJURIES INFLICTED IN A TUMULTOUS AFFRAY ELEMENTS: 1. that there is a tumultuous affray as referred to in the preceding article. 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.

4.

That all those who appear to have used violence upon the person of the offended party are known.

Unlike in Article 251, where the victim need not be one of the participants, the injured party in the crime of physical injuries inflicted in tumultuous affray must be one or some of those involved in the quarrel. In physical injuries caused in a tumultuous affray, the conditions are also the same. But you do not have a crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. The physical injury should be serious or less serious and resulting from a tumultuous affray. So anyone who may have employed violence will answer for such serious or less serious physical injury. If the physical injury sustained is only slight, this is considered as inherent in a tumultuous affray. The offended party cannot complain if he cannot identify who inflicted the slight physical injuries on him. Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established, the provisions of this article will not be observed. Instead, the offender shall be prosecuted in the ordinary course of law. Article 253 GIVING ASSISTANCE TO SUICIDE • 1.

Acts punishable: Assisting another to commit suicide, whether the suicide is consummated or not

2.

Lending his assistance to another to commit suicide to the extent of doing the killing himself

•

Notes:

103 Elements and Notes in Criminal Law Book II by RENE CALLANTA Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). 1.

A person who attempts to commit suicide is not criminally liable

In this crime, the intention must be for the person who is asking the assistance of another to commit suicide. If the intention is not to commit suicide, as when he just wanted to have a picture taken of him to impress upon the world that he is committing suicide because he is not satisfied with the government, the crime is held to be inciting to sedition. He becomes a co-conspirator in the crime of inciting to sedition, but not of giving assistance to suicide because the assistance must be given to one who is really determined to commit suicide. 2. A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her womb was expelled, is not liable for abortion

3.

Assistance to suicide is different from mercy-killing. Euthanasia/mercy-killing is the practice of painlessly putting to death a person suffering from some incurable disease. In this case, the person does not want to die. A doctor who resorts to euthanasia may be held liable for murder If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can be no qualifying circumstance because the determination to die must come from the victim. This does not contemplate euthanasia or mercy killing where the crime is murder, if without consent; if with consent, covered by Article 253. In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really giving assistance to suicide but doing the killing himself. In giving assistance to suicide, the principal actor is the person committing the suicide. Both in euthanasia and suicide, the intention to the end life comes from the victim himself; otherwise the article does not apply. The victim must persistently induce the offender to end his life. 4.

Penalty is mitigated if suicide is not successful

Even if the suicide did not materialize, the person giving assistance to suicide is also liable but the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted suicide. The following are holdings of the Supreme Court with respect to this crime: (1)

The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance.

(2)

The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact.

Article 254 DISCHARGE OF FIREARMS ELEMENTS: 1. that the offender discharges a firearm against or at another person. 2.

That the offender has no intention to kill that person.

•

Notes:

This crime cannot be committed through imprudence because it requires that the discharge must be directed at another.

1.

The offender must shoot at another with any firearm without intention of killing him. If the firearm is not discharged at a person, the act is not punished under this article If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. If the discharge is not directed at a person, the crime may constitute alarm and scandal. 2. A discharge towards the house of the victim is not discharge of firearm. On the other hand, firing a gun against the house of the offended party at random, not knowing in what part of the house the people were, it is only alarm under art 155. 3.

Usually, the purpose of the offender is only to intimidate or frighten the offended party

4. yards

Intent to kill is negated by the fact that the distance between the victim and the offender is 200

5. A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired for as long as it was initially aimed at or against the offended party The following are holdings of the Supreme Court with respect to this crime:

104 Elements and Notes in Criminal Law Book II by RENE CALLANTA (1)

If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less serious physical injury with illegal discharge of firearm will apply.

(2)

Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.

The gun used in the crime must be licensed, or the person using the firearm must be authorized to carry the same, otherwise, in addition to the crime punished under this article, accused may also be held liable for illegal possession of firearm under Republic Act No. 1866 as amended by Republic Act No. 8294. Article 255 INFANTICIDE ELEMENTS: 1. That a child was killed. 2.

That the deceased child was less than three days (72 hours) of age.

3.

That the accused killed the said child.

Notes: 1. When the offender is the father, mother or legitimate ascendant, he shall suffer the penalty prescribed for parricide. If the offender is any other person, the penalty is that for murder. In either case, the proper qualification for the offense is infanticide Even if the killer is the mother or the father or the legitimate grandparents, the crime is still Infanticide and not Parricide. The penalty however, is that for Parricide. Illustration: An unmarried woman, A, gave birth to a child, B. To conceal her dishonor, A conspired with C to dispose of the child. C agreed and killed the child B by burying the child somewhere. If the child was killed when the age of the child was three days old and above already, the crime of A is parricide. The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide. If the crime committed by A is parricide because the age of the child is three days old or above, the crime of the coconspirator C is murder. It is not parricide because he is not related to the victim. If the child is less than three days old when killed, both the mother and the stranger commits infanticide because infanticide is not predicated on the relation of the offender to the offended party but on the age of the child. In such a case, concealment of dishonor as a motive for the mother to have the child killed is mitigating. 2. When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor, such fact is only mitigating 3. The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good reputation. Hence, if she is a prostitute, she is not entitled to a lesser penalty because she has no honor to conceal Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276. If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies. 4. There is no infanticide when the child was born dead, or although born alive it could not sustain an independent life when it was killed In our study of persons and family relations, we have learned that birth determines personality. So fetus becomes a person by the legal fact of birth. The Civil Code provides that, if the fetus had an intra-uterine life of less than seven (7) months, it will be considered born only if it survives 24 hours after the umbilical cord is cut. If such fetus is killed within the 24-hour period, we have to determine if it would have survived or it would have died nonetheless, had it not been killed. A legal problem occurs when a fetus having an intra-uterine life of less than 7 months, born alive, is killed within 24 hours from the time the umbilical cord is cut. This is so because there is difficulty of determining whether the crime committed is infanticide or abortion. In such a situation, the court may avail of expert testimony in order to help it arrive at a conclusion. So, if it is shown that the infant cannot survive within 24 hours, the crime committed is abortion; otherwise if it can survive, the crime would be infanticide. Article 256 INTENTIONAL ABORTION 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.

105 Elements and Notes in Criminal Law Book II by RENE CALLANTA 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.

4.

That the abortion is intended.

Ortega Notes: Acts punished 1.

Using any violence upon the person of the pregnant woman;

2.

Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.)

3.

Acting (by administering drugs or beverages), with the consent of the pregnant woman.

Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide. Distinction between infanticide and abortion It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living separately from the mother’s womb. It is abortion if the victim is not viable but remains to be a fetus. Abortion is not a crime against the woman but against the fetus. If mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. In intentional abortion, the offender must know of the pregnancy because the particular criminal intention is to cause an abortion. Therefore, the offender must have known of the pregnancy for otherwise, he would not try an abortion. If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury. If she does, the crime will be homicide, serious physical injuries, etc. Under the Article 40 of the Civil Code, birth determines personality. A person is considered born at the time when the umbilical cord is cut. He then acquires a personality separate from the mother. But even though the umbilical cord has been cut, Article 41 of the Civil Code provides that if the fetus had an intrauterine life of less than seven months, it must survive at least 24 hours after the umbilical cord is cut for it to be considered born. Illustration: A mother delivered an offspring which had an intra-uterine life of seven months. Before the umbilical cord is cut, the child was killed. If it could be shown that had the umbilical cord been cut, that child, if not killed, would have survived beyond 24 hours, the crime is infanticide because that conceived child is already considered born. If it could be shown that the child, if not killed, would not have survived beyond 24 hours, the crime is abortion because what was killed was a fetus only. In abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating. It will also mitigate the liability of the maternal grandparent of the victim – the mother of the pregnant woman – if the abortion was done with the consent of the pregnant woman. If the abortion was done by the mother of the pregnant woman without the consent of the woman herself, even if it was done to conceal dishonor, that circumstance will not mitigate her criminal liability. But if those who performed the abortion are the parents of the pregnant woman, or either of them, and the pregnant woman consented for the purpose of concealing her dishonor, the penalty is the same as that imposed upon the woman who practiced the abortion upon herself . Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort. If the means are not sufficient or adequate, the crime would be an impossible crime of abortion. In consummated abortion, the fetus must be dead. One who persuades her sister to abort is a co-principal, and one who looks for a physician to make his sweetheart abort is an accomplice. The physician will be punished under Article 259 of the Revised Penal Code. 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.

4.

That as a result of the violence that fetus dies, either in the womb or after having been expelled therefrom.

106 Elements and Notes in Criminal Law Book II by RENE CALLANTA Notes: Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman. Mere intimidation is not enough unless the degree of intimidation already approximates violence. If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats. If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion. While there is no intention on the part of the accused to cause an abortion, nonetheless, the violence that he employs on the pregnant woman must be intentional. In other words, only the abortion is unintended. 1.

Unintentional abortion can also be committed through negligence

Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. Illustration: A quarrel ensued between A, husband, and B, wife. A became so angry that he struck B, who was then pregnant, with a soft drink bottle on the hip. Abortion resulted and B died. Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent because of the requirement that the violence employed on the victim must be intentional, nevertheless, if the circumstances of the case justifies the application of the other means of committing a felony (like culpa), then the same should be applied but the penalty will not be the penalty provided under Article 257. Instead, the offender shall be subject to the penalty prescribed for simple or reckless imprudence under Article 365. 2. The accused can only be held liable if he knew that the woman was pregnant - DEBATABLE In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Criticism: Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not. If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the woman’s pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the woman’s pregnancy, the offender is liable for unintentional abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion. 3. If there is no intention to cause abortion and neither was violence exerted, arts 256 and 257 does not apply Questions & Answers 1. A pregnant woman decided to commit suicide. She jumped out of a window of a building but she landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion? No. What is contemplated in unintentional abortion is that the force or violence must come from another. If it was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime will be intentional abortion. In this case, where the woman tried to commit suicide, the act of trying to commit suicide is not a felony under the Revised Penal Code. The one penalized in suicide is the one giving assistance and not the person trying to commit suicide. 2. If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed? The crimes committed are (1) intentional abortion; and (2) violation of the Dangerous Drugs Act of 1972. Article 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS ELEMENTS : 1. That there is a pregnant woman who has suffered an abortion. 2.

That the abortion is intended.

3.

That the abortion is caused by –

107 Elements and Notes in Criminal Law Book II by RENE CALLANTA 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.

Notes: 1. Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor. However, there is no Mitigation for the parents of the pregnant women even if their purpose is to conceal their daughter’s dishonor 2. In infanticide, parents can avail of the mitigating circumstance of concealing the dishonor of their daughter. This is not so for art 258 Article 259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND 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.

4.

That said physician or midwife takes advantage of his or her scientific knowledge or skill.

Notes:

1.

It is not necessary that the pharmacist knew that the abortive would be used to cause abortion. What is punished is the act of dispensing an abortive without the proper prescription. It is not necessary that the abortive be actually used 2. If the pharmacist knew that the abortive would be used to cause abortion and abortion results, he is liable as an accomplice If the abortion is produced by a physician to save the life of the mother, there is no liability. This is known as a therapeutic abortion. But abortion without medical necessity to warrant it is punishable even with the consent of the woman or her husband. Illustration: A woman who is pregnant got sick. The doctor administered a medicine which resulted in Abortion. The crime committed was unintentional abortion through negligence or imprudence.

Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified. Article 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL Acts punished: 1. Killing one’s adversary in a duel 2.

Inflicting upon the adversary serious physical injuries

3.

Making a combat although no physical injuries have been inflicted

Persons liable:

1.

Principals – person who killed or inflicted physical injuries upon his adversary, or both combatants in any other cases

2.

Accomplices – as seconds

The person who killed or injured his adversary. If both survive, both will be liable for the crime of duel as principals by direct participation. The seconds will be held liable as accomplices. Notes:

1.

Duel: a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight

2.

If death results, the penalty is the same as that for homicide

108 Elements and Notes in Criminal Law Book II by RENE CALLANTA While the agreement is to fight to the death, the law will disregard the “intent to kill,” if only physical injuries is inflicted. The crime will not be classified as attempted or frustrated homicide. If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same time and pursuant to their agreement, went to the plaza to fight each other to death with knives which they bought on the way, the facts do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or less formal manner. If one was killed, the crime committed would be Homicide. There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. This is an obsolete provision. Article 261 CHALLENGING TO A DUEL Acts punishable: 1. Challenging another to a duel 2.

Inciting another to give or accept a challenge to a duel

3.

Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel

Persons liable: 1. Challenger 2.

Instigators

If the challenge is only to fight, without the challenger having in mind a formal combat to be agreed upon with the assistance of seconds as contemplated under the law, the crime committed will only be grave or light threat as the case may be. Illustration: If one challenges another to a duel by shouting “Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down”, the crime of challenging to a duel is not committed. What is committed is the crime of light threats under Article 285, paragraph 1 of the Revised Penal Code.

PHYSICAL INJURIES Article 262 MUTILATION Kinds of Mutilation 1. Intentionally mutilating another by depriving him, totally or partially, of some essential organ for reproduction 2. Intentionally making another mutilation, i.e. lopping, 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 Elements: 1. There be a castration i.e. mutilation of organs necessary for generation 2.

Mutilation is caused purposely and deliberately

Notes: Mutilation is the lopping or clipping off of some part of the body. The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established. If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury. The common mistake is to associate this with the reproductive organs only. Mutilation includes any part of the human body that is not susceptible to grow again. If what was cut off was a reproductive organ, the penalty is much higher than that for homicide. This cannot be committed through criminal negligence. 1. In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind

2.

Mayhem: refers to any other intentional mutilation

Article 263 SERIOUS PHYSICAL INJURIES How Committed 1. Wounding 2.

Beating

109 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3.

Assaulting

4.

Administering injurious substances

In one case, the accused, while conversing with the offended party, drew the latter’s bolo from its scabbard. The offended party caught hold of the edge of the blade of his bolo and wounded himself. It was held that since the accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries. What are serious physical injuries: 1.

Injured person becomes insane, imbecile, impotent or blind

2.

Injured person – a. loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg

3.

b.

loses the use of any such member

c.

becomes incapacitated for the work in which he had been habitually engaged

Injured person – a.

becomes deformed

b.

loses any other member of his body

c.

loses the use thereof

d. becomes ill or incapacitated for the performance of the work in which he had been habitually engaged in for more than 90 days 4. Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days) Notes: The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained. So this crime is always consummated. The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is determined on the gravity of the injury. As long as the injury is not there, there can be no attempted or frustrated stage thereof. 1.

Serious physical injuries may be committed through reckless imprudence or simple imprudence

2.

There must be no intent to kill

3.

Impotent should include inability to copulate and sterility

4.

Blindness requires lost of vision in both eyes. Mere weakness in vision is not contemplated

5.

Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3

6.

Loss of use of hand or incapacity of usual work in par 2 must be permanent

7. Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other member which is not a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than a principal member

8.

Deformity: means physical ugliness, permanent and definite abnormality. Not curable by natural means or by nature. It must be conspicuous and visible. Thus, if the scar is usually covered by a dress, it would not be conspicuous and visible 9. The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of one tooth which impaired appearance is a deformity 10.

Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature

11. Loss of both outer ears constitutes deformity and also loss of the power to hear. Meanwhile, loss of the lobule of the ear is only a deformity 12. Loss of the index and middle fingers is either a deformity or loss of a member, not a principal one of his body or use of the same 13. Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body 14. If the injury would require medical attendance for more than 30 days, the illness of the offended party may be considered as lasting more than 30 days. The fact that there was medical attendance for that period of time shows that the injuries were not cured for that length of time 15. Under par 4, all that is required is illness or incapacity, not medical attendance

110 Elements and Notes in Criminal Law Book II by RENE CALLANTA 16.

In determining incapacity, the injured party must have an avocation at the time of the injury. Work: includes studies or preparation for a profession 17. When the category of the offense of serious physical injuries depends on the period of the illness or incapacity for labor, there must be evidence of the length of that period. Otherwise, the offense will only be considered as slight physical injuries 18. There is no incapacity if the injured party could still engage in his work although less effectively than before

19.

Serious physical injuries is qualified when the crime is committed against the same persons enumerated in the article on parricide or when it is attended by any of the circumstances defining the crime of murder. However, serious physical injuries resulting from excessive chastisement by parents is not qualified serious physical injuries Ortega Notes: Classification of physical injuries: (1)

Between slight physical injuries and less serious physical injuries, you have a duration of one to nine days if slight physical injuries; or 10 days to 20 days if less serious physical injuries. Consider the duration of healing and treatment. The significant part here is between slight physical injuries and less serious physical injuries. You will consider not only the healing duration of the injury but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries.

(2)

Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. If the offended party is incapacitated to work for less than 30 days, even though the treatment continued beyond 30 days, the physical injuries are only considered less serious because for purposes of classifying the physical injuries as serious, you do not consider the period of medical treatment. You only consider the period of incapacity from work.

(3)

When the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries. So even though the deformity may not have incapacitated the offended party from work, or even though the medical treatment did not go beyond nine days, that deformity will bring about the crime of serious physical injuries. Deformity requires the concurrence of the following conditions: (1)

The injury must produce ugliness;

(2)

It must be visible;

(3)

The ugliness will not disappear through natural healing process.

Illustration: Loss of molar tooth – This is not deformity as it is not visible. Loss of permanent front tooth – This is deformity as it is visible and permanent. Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced. Question & Answer The offender threw acid on the face of the offended party. Were it not for timely medical attention, a deformity would have been produced on the face of the victim. After the plastic surgery, the offended party was more handsome than before the injury. What crime was committed? In what stage was it committed? The crime is serious physical injuries because the problem itself states that the injury would have produced a deformity. The fact that the plastic surgery removed the deformity is immaterial because in law what is considered is not the artificial treatment but the natural healing process. In a case decided by the Supreme Court, accused was charged with serious physical injuries because the injuries produced a scar. He was convicted under Article 263 (4). He appealed because, in the course of the trial, the scar disappeared. It was held that accused can not be convicted of serious physical injuries. He is liable only for slight physical injuries because the victim was not incapacitated, and there was no evidence that the medical treatment lasted for more than nine days. Serious physical injuries is punished with higher penalties in the following cases: (1)

If it is committed against any of the persons referred to in the crime of parricide under Article 246;

111 Elements and Notes in Criminal Law Book II by RENE CALLANTA (2)

If any of the circumstances qualifying murder attended its commission.

Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries. Republic Act No. 8049 (The Anti-Hazing Law) Hazing -- This is any initiation rite or practice which is a prerequisite for admission into membership in a fraternity or sorority or any organization which places the neophyte or applicant in some embarrassing or humiliating situations or otherwise subjecting him to physical or psychological suffering of injury. These do not include any physical, mental, psychological testing and training procedure and practice to determine and enhance the physical and psychological fitness of the prospective regular members of the below. Organizations include any club or AFP, PNP, PMA or officer or cadet corps of the CMT or CAT. Section 2 requires a written notice to school authorities from the head of the organization seven days prior to the rites and should not exceed three days in duration. Section 3 requires supervision by head of the school or the organization of the rites. Section 4 qualifies the crime if rape, sodomy or mutilation results therefrom, if the person becomes insane, an imbecile, or impotent or blind because of such, if the person loses the use of speech or the power to hear or smell or an eye, a foot, an arm or a leg, or the use of any such member or any of the serious physical injuries or the less serious physical injuries. Also if the victim is below 12, or becomes incapacitated for the work he habitually engages in for 30, 10, 1-9 days. It holds the parents, school authorities who consented or who had actual knowledge if they did nothing to prevent it, officers and members who planned, knowingly cooperated or were present, present alumni of the organization, owner of the place where such occurred liable. Makes presence a prima facie presumption of guilt for such.

Article 264 ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES ELEMENTS: 1.

That the offender inflicted upon another person any serious physical injury

2.

That it was done knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind of credulity

3.

He had no intent to kill

Notes: The article under consideration does not deal with a crime. It refers to means of committing serious physical injuries. 1.

It is frustrated murder when there is intent to kill

2.

Administering means introducing into the body the substance, thus throwing of the acid in the face is not contemplated

Article 265 LESS SERIOUS PHYSICAL INJURIES ELEMENTS: 1.

That the offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time

2.

That the physical injuries must not be those described in the preceding articles

Notes: 1. Circumstances qualifying the offense:

2.

a.

when there is manifest intent to insult or offend the injured person

b.

when there are circumstances adding ignominy to the offense

c.

when the victim is either the offender’s parents, ascendants, guardians, curators or teachers

d.

when the victim is a person of rank or person in authority, provided the crime is not direct assault It falls under this article even if there was no incapacity but the medical treatment was for 13 days

112 Elements and Notes in Criminal Law Book II by RENE CALLANTA In this article, the offended party is incapacitated from work for ten (10) days or more but not more than thirty (30) days. If the injury causes the illness of the victim, the healing duration must be more than nine (9) days but not more than thirty (30) days. Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the Revised Penal Code has no specific provision penalizing the same with a definite, specific penalty. Hence, there is no complex crime of slander by deed with less serious physical injuries but only less serious physical injuries if the act which was committed produced the less serious physical injuries with the manifest intent to insult or offend the offended party, or under circumstances adding ignominy to the offense. Article 266 SLIGHT PHYSICAL INJURIES 3 Kinds: 1. That which incapacitated the offended party for labor from 1-9 days or required medical attendance during the same period 2. That which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance (ex. Black-eye) 3. Ill-treatment of another by deed without causing any injury (ex. slapping but without causing dishonor) This involves even ill-treatment where there is no sign of injury requiring medical treatment. Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries. But if the slapping is done to cast dishonor upon the person slapped, the crime is slander by deed. If the slapping was done without the intention of casting dishonor, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is still ill-treatment or slight physical injuries. The crime is slight physical injury if there is no proof as to the period of the offended party’s incapacity for labor or of the required medical attendance. Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child The last paragraph of Article VI of Republic Act No. 7610, provides: “For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve years of age.” The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431. For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death – higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.

RAPE ART 266-A RAPE The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape as Crime Against Persons incorporated into Title 8 of the RPC to be known as Chapter 3 ELEMENTS: Rape is committed 1. By a man who have carnal knowledge of a woman under any of the following circumstances: a.

through force, threat or intimidation

113 Elements and Notes in Criminal Law Book II by RENE CALLANTA 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, even though none of the circumstances mentioned above be present

2.

By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit an act of sexual assault by inserting a.

his penis into another person’s mouth or anal orifice, or

b.

any instrument or object, into the genital or anal orifice of another person

Rape committed under par 1 is punishable by: 1. reclusion perpetua 2.

reclusion perpetua to DEATH when a. victim became insane by reason or on the occasion of rape b.

3.

the rape is attempted and a homicide is committed by reason or on the occasion thereof

DEATH when a. homicide is committed b.

victim under 18 years and offender is: i. parent ii. ascendant iii. step-parent iv. guardian v. relative by consanguinity or affinity with the 3rd civil degree or vi. common law spouse of parent of victim

c.

under the custody of the police or military authorities or any law enforcement or penal institution

d.

committed in full view of the spouse, parent or any of the children or other relatives within the 3 rd degree of consanguinity

e.

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

f.

a child below 7 years old

g. h.

offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim offender; member of the AFP, or para-military units thereof, or 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

i.

victim suffered permanent physical mutilation or disability

j.

the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

k.

when the offender knew of the mental disability, emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime

Rape committed under par 2 is punishable by: 1. prision mayor 2.

prision mayor to reclusion temporal a. use of deadly weapon or b.

by two or more persons

3.

reclusion temporal – when the victim has become insane

4.

reclusion temporal to reclusion pepetua – rape is attempted and homicide is committed

5.

reclusion perpetua – homicide is committed by reason or on occasion of rape

6.

reclusion temporal – committed with any of the 10 aggravating circumstances mentioned above

Notes: 1. Dividing age in rape: a. less than 7 yrs old, mandatory death b.

less than 12 yrs old, statutory rape

c.

less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death

114 Elements and Notes in Criminal Law Book II by RENE CALLANTA Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine in Philippine penal law insofar as the crime of rape is concerned, as it finally did away with frustrated rape and allowed only attempted rape and consummated rape to remain in our statute books. The act of “touching” should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan) Classification of rape (1) (2)

Traditional concept under Article 335 – carnal knowledge with a woman against her will. The offended party is always a woman and the offender is always a man. Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. The offended party or the offender can either be man or woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape.

Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offender’s liability. Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of resistance as to make it rape. Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to the woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere “no, no” is not enough if the offender is a stranger, although if the rape is incestuous, this is enough. The new rape law also requires that there be a physical overt act manifesting resistance, if the offended party was in a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal knowledge was against his or her will. When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape. If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse, the crime is rape. In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious. It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted – it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs. Canada, 253 SCRA 277). Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900). Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient. Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the carnal intercourse is against her will. Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape. Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any penetration on the part of the woman. A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape. It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in crimes against chastity. The standard amount given now is P 50,000.00, with or without evidence of any moral damage.

115 Elements and Notes in Criminal Law Book II by RENE CALLANTA An accused may be convicted of rape on the sole testimony of the offended woman. It does not require that testimony be corroborated before a conviction may stand. This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed. Illustration: Daughter accuses her own father of having raped her. Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others. It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary. The slightest penetration – contact with the labia – will consummate the rape. On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes attempted rape. However, if that intention is not proven, the offender can only be convicted of acts of lasciviousness. The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman. In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her skirts, the accused did not make any effort to remove her underwear. Instead, he removed his own underwear and placed himself on top of the woman and started performing sexual movements. Thereafter, when he was finished, he stood up and left. The crime committed is only acts of lasciviousness and not attempted rape. The fact that he did not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration. It was only to satisfy a lewd design. The new law, R.A. 8353, added new circumstance – that is, when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a man through the latter’s scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a prostitute who willingly had sexual congress with a man upon the latter’s assurance that she would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount. A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape under this new section. In Rape cases, court must always be guided by the following principles: 1. An accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; 2. In view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and 3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People vs. Ricafort)