Criminal Law Book2 UP Sigma Rho

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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA b. Confession of the accused in open court. Arraignment, pre-trial, trial – OK. > If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason. > During trial, simply saying “I’m guilty” is not enough. > Withdrawing plea of “not guilty” during arraignment not necessary > 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.

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Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating.

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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 > Filipino citizens can commit treason outside the Philippines. But that of an alien must be committed in the Philippines. > Only Filipino citizens or permanent resident aliens can be held liable > 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. •

Actual hostilities may determine the date of the commencement of war

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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.”

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Adherence and giving aid or comfort must concur together.

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

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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.

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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. 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government.

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

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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.

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Mere agreement and decisions to commit treason is punishable

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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. That the offender must be owing allegiance to the government, and not a foreigner b.

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.

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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

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

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Crime of omission

* This is a felony by omission although committed with dolo, not with culpa.

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“To report within a reasonable time” – depends on time, place and circumstance – the RPC did not fix time.

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

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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.

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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.

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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.

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 7.

Photographing vital military information

CRIMES AGAINST LAWS OF NATIONS * 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

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Crime is committed in time of peace, intent is immaterial

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Inciting to war – offender is any person

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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

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

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

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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.

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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

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

b. offender intended to aid the enemy

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

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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 and Notes in Criminal Law Book II by RENE CALLANTA •

Elements: a. That a vessel is on the high seas/Philippine waters b. c.

That the offenders are not members of its complement or passengers of the vessel 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. No criminal intent Attack from outside. Offenders are Attack from the inside. strangers to the vessel.

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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.

* 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.

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

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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.

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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

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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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Four situations governed by anti hi-jacking law: (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 hi-jacking 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 pyrotechniques. 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. This is a special law where the attempted stage is not punishable. 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 hijacking 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. 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. In the course of the hi-jack, a passenger or complement was shot and killed. What crime or crimes were committed? 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. The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime or crimes were committed? 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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).

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That he detains a person (actual restraint).

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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.

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital

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Grounds for warrantless arrest: a. Crime is about to be, is being, has been committed in his presence b. Officer must have probable cause to believe based on personal knowledge of facts and circumstances that the person probably committed the crime

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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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. * 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. 12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent 2. 18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or 3. 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.

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

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.

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What is length of waiver? Light offense – 5 days. Serious and less serious offenses – 7 to 10 days. (Judge Pimentel)

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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? 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.

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If offender is a private person, crime is illegal detention

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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. the performance of such judicial or executive order for the release of the prisoner, or 3. the proceedings upon a petition for the release of such person

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

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

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

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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

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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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.

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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)

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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)

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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

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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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

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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

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No just cause – warrant is unjustified

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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.

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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.

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Abuse examples: a. X owner was handcuffed while search was going-on. 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)

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

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.

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

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

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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.

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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, such defeats the exercise of the right to peaceably assemble, Article 131 is violated.

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

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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

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

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

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

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Prohibition must be without lawful cause or without lawful authority

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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

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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

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Religious Worship: people in the act of performing religious rites for a religious ceremony; a manifestation of religion. Ex. Mass, baptism, marriage

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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.

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

Article 133 OFFENDING RELIGIOUS FEELINGS •

ELEMENTS:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA a. That the acts complained of were performed –

1. in a place devoted to religious worship, or (for this element, no need of religious ceremony, only the place is material) 2. 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

•

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

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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

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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)

Offending the Religious Feeling (133)

Nature of Crime Who are Liable If Element Missing Crime against the Public officers, If not by public officer = fundamental law of Outsiders tumults the state Crime against the Public officers, If by insider = unjust fundamental law of Outsiders vexation the state If not religious = tumult or alarms If not notoriously offensive = unjust vexation Crime against Public officers, If not tumults = alarms public order private persons, and scandal outsiders If meeting illegal at onset = inciting to sedition or rebellion

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

TITLE THREE CRIMES AGAINST PUBLIC ORDER Crimes against public order 1. Rebellion or insurrection (Art. 134); 1.a 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); 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 – 1. public uprising and

2. taking arms against the government (force/violence) b. 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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: 1. promotes 2. maintains, or 3. heads a rebellion or insurrection; or 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 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

•

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

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

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.”

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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 Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA • ELEMENTS: a. 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.

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

e. With or without civilian support or participation 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. Treason (114)

Rebellion (134)

Coup d’etat Sedition (139) (134-A)

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

Crime against o National Security f C r i m e Overt levying war A against the gov’t; c OR t adherence and s giving aid or comfort to enemies Purpose Deliver the gov’t of to enemy during objectiv war e

Crime against Crime Public Order against Public Order

Crime against Public Order

Public uprising See article. AND Taking up arms against the gov’t

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

See article.

Seizing or See enumeration in diminishing article. state power.

Article 135 PENALTIES •

Who are liable? a. Any person who: 1. Promotes 2. Maintains 3. heads a rebellion or insurrection b. 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 c. 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 Anyone who participates or in an manner, to undertake a coup. supports, finances, 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: > Public officer must take active part because mere silence or omission not punishable in rebellion > It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government > Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government

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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). > 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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. That the offender does not take arms or is not in open hostility against the government b.

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 •

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) Inciting to Rebellion (138) The person who proposes has decided to Not required that the offender commit rebellion. decided to commit rebellion. The person who proposes the execution The inciting is done publicly. of the crime uses secret means.

has

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 taking up of arms against the government. 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: 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 Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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. That the offender does not take a direct part in the crime of sedition b. (134)

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 Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

* 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 – 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 b. 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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) ILLEGAL ASSOCIATION (147) Must be an actual meeting of armed No need for such 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 Act of forming or organizing and that are punished membership in the association Persons liable: leaders and those present Founders, directors, president and members

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 Sigma Rho ( ΣΡ ) reviewers

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

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

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 Need not be serious Must be of serious character

Intimidation/Resistance 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

•

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 self-defense

* 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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: 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 • Acts punishable: a. refusing without legal excuse to obey summons

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

Resistant and Disobedience to a Person in Authority or Agents of such Person (151) PIA or his agent must be engaged in the PIA or his agent must be in the actual performance of official duties or that he performance of his duties. is assaulted Direct assault is committed in 4 ways – Committed by resisting or seriously by attacking, employing force, and disobeying a PIA or his agent. seriously resisting a PIA or his agent. Use of force against an agent of PIA Use of force against an agent of a PIA is not must be serious and deliberate. so serious; no manifest intention to defy the law and the officers enforcing it.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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 Sigma Rho ( ΣΡ ) reviewers

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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 Nature of Crime Tumults and other Crime against Public Order Disturbances (153) Alarms and Scandals (155) 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. * 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.

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

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.

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

Offenders – not minor delinquents nor detention prisoners

•

If escaped within the 15 day appeal period – no evasion

•

No applicable to deportation as the sentence

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.

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

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. 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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 ORDINARY EVASION Infringement of conditions/terms of To evade the penalty given by the courts President – 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 OFFENSE-PENALTY: (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) •

Quasi-Recidivism may be offset by a special privileged mitigating circumstance (ex. Minority)

TITLE FOUR CRIMES AGAINST PUBLIC INTEREST Sigma Rho ( ΣΡ ) reviewers

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

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Import – to bring to port the same

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Both Philippine and foreign state coins

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Applies also to coins withdrawn from circulation

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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.

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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).

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. 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. possession 2. with intent to utter, and 3. knowledge b. Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. ELEMENTS: 1. actually uttering, and 2. 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA c. Uttering of such false or forged obligations and notes in connivance with forgers and importers

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FORGING – by giving a treasury or bank note or document payable to bearer/order an appearance of a true and genuine document

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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

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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 •

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. Instead of the peso sign (P), somebody replaced it with a dollar sign ($). Was the crime of forgery committed? 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 twentypeso 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;

(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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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. That there be an intent to imitate, or an attempt to imitate ii.

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)

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

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

4. Making untruthful statements in a narration of facts; Requisites: i. That the offender makes in a document statements in a narration of facts 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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) * 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

•

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.

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

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

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

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

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.

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

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 Falsification of Public/Official Documents Prejudice to third party is an element Prejudice to third persons is immaterial, what is of the offense. 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, MESSAGES, AND USE OF SAID FALSIFIED MESSAGES •

AND

TELEPHONE

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.

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

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. -

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

3. 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.

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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.

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

In usurpation of authority: The mere act of knowingly and falsely representing oneself is sufficient. Not necessary that he performs an act pertaining to a public officer.

Elements 1. 2.

•

Offender knowingly and falsely represents himself; 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

•

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.

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

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) Concealing True Name (178) Element of publicity must be present Publicity not necessary Purpose is to conceal a crime, to evade the Purpose is to conceal identity execution of a judgement, or to cause damage 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.

* 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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). testimony need not influence the acquittal

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

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.

•

ELEMENTS: That the testimony must be given in a civil case.

b.

That the testimony must relate to the issues presented in said case.

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 FALSE TESTIMONY 1. Non-judicial proceedings. 1. Given in a judicial proceeding. 2. Statement or testimony is required by 2. Testimony need not be required by law. law. 3. Amount involved is not material. 3. Amount involved in civil cases is material. 4. immaterial whether statement or 4. It is always material in criminal cases. testimony is favorable or not to the accused.

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

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

•

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 non-judicial 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 That there be a public auction. b

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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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;

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 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

d. 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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 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 purity involved MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier

•

and

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 purity involved ( includes BROKER ) Qualifying Circumstances –

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

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

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

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

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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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



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 1. Gambling (Art. 195); 2. Importation, sale and possession of lottery tickets or advertisements (Art. 196); 3. Betting in sport contests (Art. 197); 4. Illegal betting on horse races (Art. 198); 5. Illegal cockfighting (Art. 199); 6. Grave scandal (Art. 200); 7. Immoral doctrines, obscene publications and exhibitions (Art. 201); and 8. Vagrancy and prostitution (Art. 202). Article 195. What Acts Are Punishable in Gambling Acts punished 1.

Taking part directly or indirectly in –

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. 4.

Being maintainer, conductor, or banker in a game of jueteng or similar game; 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. IMPORTATION, SALE ADVERTISEMENTS

AND

POSSESSION

OF

LOTTERY

TICKETS

OR

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 Sigma Rho ( ΣΡ ) reviewers

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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. 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.” resolution of the case against the operation of jai-alai.

So said the court in the recent

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:

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

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

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

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

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

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

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

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);

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

Prosecution of offenses; negligence and tolerance (Art. 208); Betrayal of trust by an attorney or solicitor – Revelation of secrets (Art. 209); Direct bribery (Art. 210); Indirect bribery (Art. 211); Qualified bribery (Art. 211-A); Corruption of public officials (Art. 212); Frauds against the public treasury and similar offenses (Art. 213); Other frauds (Art. 214); Prohibited transactions (Art. 215); Possession of prohibited interest by a public officer (Art. 216); Malversation of public funds or property – Presumption of malversation (Art. 217) Failure of accountable officer to render accounts (Art. 218); Failure of a responsible public officer to render accounts before leaving the country (Art. 219); Illegal use of public funds or property (Art. 220); Failure to make delivery of public funds or property (Art. 221); Conniving with or consenting to evasion (Art. 223); Evasion through negligence (Art. 224); Escape of prisoner under the custody of a person not a public officer (Art. 225); Removal, concealment or destruction of documents (Art. 226); Officer breaking seal (Art. 227); Opening of closed documents (Art. 228); Revelation of secrets by an officer (Art. 229); Public officer revealing secrets of private individual (Art. 230); Open disobedience (Art. 231); Disobedience to order of superior officer when said order was suspended by inferior officer (Art. 232); Refusal of assistance (Art. 233); Refusal to discharge elective office (Art. 234); Maltreatment of prisoners (Art. 235); Anticipation of duties of a public office (Art. 236); Prolonging performance of duties and powers (Art. 237); Abandonment of office or position (Art. 238); Usurpation of legislative powers (Art. 239); Usurpation of executive functions (Art. 240); Usurpation of judicial functions (Art. 241); Disobeying request for disqualification (Art. 242); Orders or requests by executive officers to any judicial authority (Art. 243); Unlawful appointments (Art. 244); and 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. Performs public duties as an employee, agent or subordinate official in the gov’t or any of its branches

• Notes: Public officer must derive his authority from: 1. direct provision of law 2. popular election 3.appointment by competent authority

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

* 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:

a. Misfeasance: means improper performance of an act which might be properly be performed

b. Malfeasance: means performance of an act which ought not to be done c. 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 c. Judgment is unjust d. Knowledge that the decision is unjust

• Notes: 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. UNJUST JUDGMENT: one which is contrary to law, or not supported by the evidence, or both An unjust judgment may result from: 1. error (with bad faith) 2. ill-will or revenge 3. bribery * 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA deliberate intent to do an injustice. This usually occurs when the judge entertains hatred, envy, revenge, or greed against one of the parties. * 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. c. That he delays the administration of justice.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 Anti-Fencing 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

* 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA (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. A did not commit the crime under Article 209, although the lawyer’s act may be considered unethical. The client-lawyer 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 nonprosecuted; 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 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.

to refrain from doing something which is his official duty to do

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

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

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

* 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

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

Bribery (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution. Victim parts with his money or property voluntarily.

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 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

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

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

(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”.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA ANTI-GRAFT AND CORRUPT PRACTICES ACT RA 3019 •

Persons Liable:

a.

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

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

III.

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 nonofficial 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).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 presuspension 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-à-vis 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. 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.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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: > 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.

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

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.

* 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.

* If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery * When there is deceit in demanding larger fees, the crime committed is estafa * May be complexed with malversation

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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: (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.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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 •

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: 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 * 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 •

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: > 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

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

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

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

* 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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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

•

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 re-audit 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

•

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

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

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

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:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. Offender has gov’t funds or property in his possession b. 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 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 •

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

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 •

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 nonperformance of a duty. * The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate non-performance 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) 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 •

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

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

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.

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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 illicit purpose when the intention of the offender is to: a. tamper with it b. to profit by it c. 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).

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

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.

•

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.

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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.

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

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.

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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. 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. That damage, great or small, be caused to the public interest. (damage is essential)

• Notes: > 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. * Secrets of a private individual is not included * Espionage for the benefit of another State is not contemplated by the article. If regarding military secrets or secrets affecting state security, the crime may be espionage.

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

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:

“CHARGE”: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article * If the papers contain secrets which should 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 * 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.

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Revelation to one person is sufficient

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If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an attorney)

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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.

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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.

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Involves a request from one public officer to another

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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.

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

* 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. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. > 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.

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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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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. 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”.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 Dereliction of Duty (208) (238) There is actual abandonment through Public officer does not abandon his office resignation to evade the discharge of but merely fails to prosecute a violation of duties. 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. b.

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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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 241 USURPATION OF JUDICIAL FUNCTIONS ELEMENTS: a. That the offender is an officer of the executive branch of the government. b.

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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.

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

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

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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.

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.

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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: * 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. * Parents and children are not included in the term “ascendants” or “descendants” * 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. * 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.

* 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.

* 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.

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

* 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.

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: * 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. * Not necessary that the parent be legitimate * Article applies only when the daughter is single * SURPRISE: means to come upon suddenly or unexpectedly * 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.

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

* 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.

* 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.

* 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.

* 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: (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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. That the accused killed him. 3. That the killing was attended by any of the following qualifying circumstances 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

4. 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. * 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) * 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) * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA But if the aggravating circumstance of nocturnity is considered by itself, it is not one of those which qualify a homicide 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;

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

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

* Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA (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: * Tumultuous affray exists when at least 4 persons take part in it * When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray Persons liable are: a. 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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 253 GIVING ASSISTANCE TO SUICIDE • Acts punishable: 1. 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:

* 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.).

* 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.

* 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 * 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.

* 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.

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

Notes:

* This crime cannot be committed through imprudence because it requires that the discharge must be directed at another.

* 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.

* 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. * Usually, the purpose of the offender is only to intimidate or frighten the offended party * Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards * 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: (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: * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 co-conspirator 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.

* When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor, such fact is only mitigating * 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. * 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. 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;

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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 intra-uterine 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:

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

* 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. * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * 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 – 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: * 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 * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. That said physician or midwife takes advantage of his or her scientific knowledge or skill. Notes: * 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 * 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: 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 * If death results, the penalty is the same as that for homicide * 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.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * There is no such crime nowadays because people hit each other even without entering into any preconceived 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.

* In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind MAYHEM: refers to any other intentional mutilation

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Article 263 SERIOUS PHYSICAL INJURIES How Committed 1. Wounding 2. Beating 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 b. loses the use of any such member c. becomes incapacitated for the work in which he had been habitually engaged 3. 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.

* Serious physical injuries may be committed through reckless imprudence or simple imprudence * There must be no intent to kill IMPOTENT should include inability to copulate and sterility BLINDNESS requires lost of vision in both eyes. Mere weakness in vision is not contemplated Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Loss of use of hand or incapacity of usual work in par 2 must be permanent * 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 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 * 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 * Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature * 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 * 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 * Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body * 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 * Under par 4, all that is required is illness or incapacity, not medical attendance > In determining incapacity, the injured party must have an avocation at the time of the injury. Work: includes studies or preparation for a profession * 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 * There is no incapacity if the injured party could still engage in his work although less effectively than before * 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

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

(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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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. * It is frustrated murder when there is intent to kill * 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: Circumstances qualifying the offense: 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 * 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.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. By a man who have carnal knowledge of a woman under any of the following circumstances: a. through force, threat or intimidation b. when the offended party is deprived of reason or otherwise unconscious c. by means of fraudulent 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 By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit an act of sexual assault by inserting 2.

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. the rape is attempted and a homicide is committed by reason or on the occasion thereof 3. 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 3rd 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

offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim h. 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 g.

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:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 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: 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 * 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 !) 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. 2) 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

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

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

TITLE NINE CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Crimes against liberty 1. Kidnapping and serious illegal detention (Art. 267); 2. Slight illegal detention (Art. 268); 3. Unlawful arrest (Art. 269); 4. Kidnapping and failure to return a minor (Art. 270); 5. Inducing a minor to abandon his home (Art. 271); 6. Slavery (Art. 272); 7. Exploitation of child labor (Art. 273); 8. Services rendered under compulsion in payment of debts (Art. 274). Crimes against security 1. Abandonment of persons in danger and abandonment of one's own victim (Art. 275); 2. Abandoning a minor (Art. 276); 3. Abandonment of minor by person entrusted with his custody; indifference of parents (Art. 277); 4. Exploitation of minors (Art. 278); 5. Trespass to dwelling (Art. 280); 6. Other forms of trespass (Art. 281); 7. Grave threats (Art. 282); 8. Light threats (Art. 283); 9. Other light threats (Art. 285); 10. Grave coercions (Art. 286); 11. Light coercions (Art. 287); 12. Other similar coercions (Art. 288); 13. Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Art. 289); 14. Discovering secrets through seizure of correspondence (Art. 290); 15. Revealing secrets with abus of office (Art. 291); 16. Revealing of industrial secrets (Art. 292).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION ELEMENTS: 1.Offender is a private individual 2.He kidnaps or detains another, or in any other manner deprives the latter of his liberty 3.The act of detention or kidnapping must be illegal 4. That in the commission of the offense, any of the following circumstances are present

(becomes serious) a.

that the kidnapping/detention lasts for more than 3 days

b.

that it is committed simulating public authority

c. that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made, or that the person kidnapped or detained is a minor (except if parent is the offender), female or a public officer d.

Note: When death penalty is imposed: a. If kidnapping is committed for the purpose of extorting ransom either from the victim or from any other person even if none of the aforementioned are present in the commission of the offense (even if none of the circumstances are present) b. When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts * The essence of the offense is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. There must be indubitable proof that the actual intent of the malefactor was to deprive the offended party of liberty. The restraint however need not be permanent. (People vs. Godoy, 250 SCRA 676). Ortega Notes: When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. Illustration: If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention. In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another. When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another. The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. But if a person is transported not for ransom, the crime can be illegal detention. Usually, the offended party is brought to a place other than his own, to detain him there. When one thinks of kidnapping, it is not only that of transporting one person from one place to another. One also has to think of the criminal intent. Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs. Serious illegal detention – If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion – If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to take home the woman from class. But while the woman is in his car, he drove the woman to a far place and told the woman to marry him. On the way, the offender had repeatedly touched the private parts of the woman. It was held that the act of the offender of touching the private parts of the woman could not be considered as lewd designs because he was willing to marry the offended party. The Supreme Court ruled that when it is a suitor who could possibly marry the woman, merely kissing the woman or touching her private parts to “compel” her to agree to the marriage, such cannot be characterized as lewd design. It is considered merely as the “passion of a lover”. But if the man is already married, you cannot consider that as legitimate but immoral and definitely amounts to lewd design. If a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion. Illustration: Tom Cruz invited Nicole Chizmacks for a snack. They drove along Roxas Boulevard, along the Coastal Road and to Cavite. The woman was already crying and wanted to be brought home. Tom imposed the condition that Nicole should first marry him. Nicole found this as, simply, a mission impossible. The crime committed in this case is grave coercion. But if after they drove to Cavite, the suitor placed the woman in a house and would not let her out until she agrees to marry him, the crime would be serious illegal detention. If the victim is a woman or a public officer, the detention is always serious – no matter how short the period of detention is. Distinction between illegal detention and arbitrary detention Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives another of his liberty. Arbitrary detention is committed by a public officer who detains a person without legal grounds. The penalty for kidnapping is higher than for forcible abduction. This is wrong because if the offender knew about this, he would perform lascivious acts upon the woman and be charged only for forcible abduction instead of kidnapping or illegal detention. He thereby benefits from this absurdity, which arose when Congress amended Article 267, increasing the penalty thereof, without amending Article 342 on forcible abduction. Article 267 has been modified by Republic Act No. 7659 in the following respects: (1)

Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided;

(2)

In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271;

(3)

A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. This amendment brings about a composite crime of kidnapping with homicide when it is the victim of the kidnapping who was killed, or dies as a consequence of the detention and, thus, only one penalty is imposed which is death.

Article 48, on complex crimes, does not govern in this case. But Article 48 will govern if any other person is killed aside, because the provision specifically refers to “victim”. Accordingly, the rulings in cases of People v. Parulan, People v. Ging Sam, and other similar cases where the accused were convicted for the complex crimes of kidnapping with murder have become academic. In the composite crime of kidnapping with homicide, the term “homicide” is used in the generic sense and, thus, covers all forms of killing whether in the nature of murder or otherwise. It does not matter whether the purpose of the kidnapping was to kill the victim or not, as long as the victim was killed, or died as a consequence of the kidnapping or detention. There is no more separate crime of kidnapping and murder if the victim was kidnapped not for the purpose of killing her. If the victim was raped, this brings about the composite crime of kidnapping with rape. Being a composite crime, not a complex crime, the same is regarded as a single indivisible offense as in fact the law punishes such acts with only a single penalty. In a way, the amendment depreciated the seriousness of the rape

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Elements and Notes in Criminal Law Book II by RENE CALLANTA because no matter how many times the victim was raped, there will only be one kidnapping with rape. This would not be the consequence if rape were a separate crime from kidnapping because each act of rape would be a distinct count. However for the crime to be kidnapping with rape, the offender should not have taken the victim with lewd designs as otherwise the crime would be forcible abduction; and if the victim was raped, the complex crime of forcible abduction with rape would be committed. If the taking was forcible abduction, and the woman was raped several times, there would only be one crime of forcible abduction with rape, and each of the other rapes would constitute distinct counts of rape. This was the ruling in the case of People v. Bacalso. In People v. Lactao, decided on October 29, 1993, the Supreme Court stressed that the crime is serious illegal detention if the purpose was to deprive the offended party of her liberty. And if in the course of the illegal detention, the offended party was raped, a separate crime of rape would be committed. This is so because there is no complex crime of serious illegal detention with rape since the illegal detention was not a necessary means to the commission of rape. In People v. Bernal, 131 SCRA 1, the appellants were held guilty of separate crimes of serious illegal detention and of multiple rapes. With the amendment by Republic Act No. 7659 making rape a qualifying circumstance in the crime of kidnapping and serious illegal detention, the jurisprudence is superseded to the effect that the rape should be a distinct crime. Article 48 on complex crimes may not apply when serious illegal detention and rape are committed by the same offender. The offender will be charged for the composite crime of serious illegal detention with rape as a single indivisible offense, regardless of the number of times that the victim was raped. Also, when the victim of the kidnapping and serious illegal detention was subjected to torture and sustained physical injuries, a composite crime of kidnapping with physical injuries is committed.

Palattao notes: When the person is deprived of his liberty or is seized and forcibly taken to another place, the inquiry would, be what is the purpose of the offender in taking him or her away: 1. If the seizure is only to facilitate the killing of the victim the crime committed would either be homicide or murder and the crime of kidnapping is absorbed. 2. If the seizure or deprivation of liberty is only to compel the victim to perform an act, be it right or wrong, the crime committed would only be grave coercion. (People vs. Astorga, 283 SCRA 420). 3. If the deprivation of liberty is to take away the victim to satisfy the lewd design of the offender, the crime would only be forcible abduction. 4. If the seizure of the victim is solely to deprive him of his liberty, the crime is illegal detention. In the penultimate paragraph of Article 267, there is deprivation of liberty but not for any for the purposes enumerated above. It is for the purpose of extorting ransom from the victim or from any other person. The law classifies the crime committed by the offender as serious illegal detention even if none of the circumstances to make it serious is present in the commission of the crime. In this particular mode of committing the crime of serious illegal detention, demand for ransom is an indispensable element. (People vs. Bustamante, G. R. No. 66427, Dec. 4, 1991) SANDOVAL Notes: If the victim was not kidnapped or taken away but was restrained and deprived of his liberty, like in the case of a hostage incident where the accused, who was one of the occupants of the house, grabbed a child, poked a knife on the latter’s neck, called for media people and demanded a vehicle from the authorities which he could use in escaping, as it turned out that there was an unserved arrest warrant against him, the proper charge is Serious Illegal Detention (without kidnapping anymore) but likewise under Article 267 of the Revised Penal Code. Where after taking the victim with her car, the accused called the house of the victim asking for ransom but upon going to their safehouse saw several police cars chasing them, prompting them to kill their victim inside the car, there were two crime committed – Kidnapping for Ransom and Murder, not a complex crime of Kidnapping with Murder as she was not taken or carried away to be killed, killing being an afterthought . (People vs. Evanoria, 209 SCRA 577).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Article 268 SLIGHT ILLEGAL DETENTION ELEMENTS: 1. Offender is a private person 2. He kidnaps or detains another or in any other maner deprives him pof his liberty / furnished place for the perpetuation of the crime 3.

That the act of detention or kidnapping must be illegal

4. That the crime is committed without the attendant of any of the circumstances enumerated in Art 267 Note: Privileged mitigating circumstances: If the offender: a. voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention b.

without having attained the purpose intended and

c.

before the institution of criminal proceedings against him

Ortega Notes: One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender. When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious. If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender. One who furnishes the place where the offended party is being held generally acts as an accomplice. But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death. What is ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. The definition of ransom under the Lindberg law of the U.S. has been adopted in our jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor and releases the latter only upon the payment of the debt, such payment of the debt, which was made a condition for the release is ransom, under this article. In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken away with hands tied behind his back and was not heard from for six years. Supreme Court reversed the trial court ruling that the men accused were guilty of kidnapping with murder. The crime is only slight illegal detention under Article 268, aggravated by a band, since none of the circumstances in Article 267 has been proved beyond a reasonable doubt. The fact that the victim has been missing for six years raises a presumption of death, but from this disputable presumption of death, it should not be further presumed that the persons who were last seen with the absentee is responsible for his disappearance.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 269 UNLAWFUL ARREST ELEMENTS: 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is not authorized by law or there is no reasonable ground therefor Notes: * Offender is any person, so either a public officer or private individual * The offender in this article can be a private individual or public officer. In the latter case, the offender, being a public officer, has the authority to arrest and detain a person, but the arrest is made without legal grounds. For him to be punished under this article, the public officer must make the arrest and detention without authority to do so; or without acting in his official capacity. * This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. * The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. * Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.

* Refers to warrantless arrests * If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest. * If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. * If the offender is a public officer, the crime is arbitrary detention under Article 124. * If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. * Note that this felony may also be committed by public officers.

* In art 125, the detention is for some legal ground while here, the detention is not authorized by law * In art 125, the crime pertains to failure to deliver the person to the proper judicial authority within the prescribed period while here, the arrest is not authorized by law

Article 270 KIDNAPPING AND FAILURE TO RETURN A MINOR ELEMENTS: 1. That the offender is entrusted with the custody of a minor person (whether over or under 7 but less than 18 yrs old) 2.

That he deliberately fails to restore the said minor to his parents

* If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. * If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. * If the taking is with the consent of the parents, the crime in Article 270 is committed.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * In People v. Generosa, it was held that deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). * In People v. Mendoza, where a minor child was taken by the accused without the knowledge and consent of his parents, it was held that the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270.

Article 271 INDUCING A MINOR TO ABANDON HIS HOME ELEMENTS: 1. That the minor (whether over or under 7) is living in the home of his parents or guardians or the person entrusted with his custody 2.

That the offender induces a minor to abandon such home

Notes: * The inducement must be actually done with malice and a determined will to cause damage. (People vs. Paalam, C.A., O.G. 8267-8268). But where the victims abandoned their respective homes out of an irresponsible spirit of restlessness and adventure, the crime is not committed. * Minor should not leave his home of his own free will * Mitigating if by father or mother * The article also punishes the father or mother who commits the act penalized under the law. This arises when the custody of the minor is awarded by the court to one of them after they have separated. The other parent who induces the minor to abandon his home is covered by this article.

Article 272 SLAVERY ELEMENTS: 1. That the offender purchases. Sells, kidnaps or detains a human being. 2.

That the purpose of the offender is to enslave such human being.

SLAVERY is the treatment of a human being as a mere property, stripped of dignity and human rights. The person is reduced to the level of an ordinary animal, a mere chattel with material value capable of pecuniary estimation and for which reason, the offender purchases and sells the same. Note: Qualifying circumstance – if the purpose of the offender is to assign the offended party to some immoral traffic (prostitution), the penalty is higher * This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. * The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341.

Article 273 EXPLOITION OF CHILD LABOR ELEMENTS: 1. That the offender retains a minor in his service. 2.

That it is against the will of the minor.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. That it is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. * If the minor agrees to serve the accused, no crime is committed, even if the service is rendered to pay an ascendant’s alleged debt.

Article 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT ELEMENTS: 1. That the offender compels a debtor to work for him, either as household servant or farm laborer. 2.

That it is against the debtor’s will.

3.

That the purpose is to require or enforce the payment of a debt.

Involuntary servitude or service . In this article, no distinction is made whether the offended is a minor or an adult.

CRIMES AGAINST SECURITY Article 275 ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONE’S OWN VICTIM Acts punishable: 1. By failing to render assistance to any person whom the offender finds in an inhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense Elements a. That place is not inhabited. b. The accused found there a person wounded or in danger of dying. c. The accused can render assistance without detriment to himself. d.

The accused fails to render assistance.

2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured 3. By failing to deliver a child, under 7 whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place * Under the first act, the offender is liable only when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place. If the mortally wounded, dying person is found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime. An uninhabited place is determined by

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Elements and Notes in Criminal Law Book II by RENE CALLANTA possibility of person receiving assistance from another. Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote. * If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of the RPC – damnum absque injuria. But if you abandon your victim, you will be liable under Article 275. Here, the character of the place is immaterial. As long as the victim was injured because of the accident caused by the offender, the offender would be liable for abandonment if he would not render assistance to the victim.

Article 276 ABANDONING A MINOR ELEMENTS: 1. That the offender has the custody of a child. 2. That the child is under seven years of age. 3. That he abandons such child. 4. That he has no intent to kill the child when the latter is abandoned. Notes: * Conscious, deliberate, permanent * In order to hold one criminally liable under this article, the offender must have abandoned the child with deliberate intent. The purpose of the offender must solely be avoidance of the obligation of taking care of the minor. Qualifying circumstances: a. When the death of the minor resulted from such abandonment b. If the life of the minor was in danger because of the abandonment

Article 277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS Acts punished: 1. By delivering a minor to a public institution or other persons w/o consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities Elements: a. That the offender has charged of the rearing or education of a minor. b. That he delivers said minor to a public institution or other persons. c. That the one who entrusted such child to the offender has not consented to such act, or if the one who entrusted such child to the offender is absent; the proper authorities have not consented to it. 2. By neglecting his (offender’s) children by not giving them education which their station in life requires and financial condition permits Elements: a. That the offender is a parent. b. That he neglects his children by not giving them education. c. That his station in life requires such education and his financial condition permits it.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA “Indifference of parents” – while they are financially capable of supporting the needs of their children, they deliberately neglect to support the educational requirements of these children through plain irresponsibility caused by wrong social values.

Article 278 EXPLOITATION OF MINORS Acts punished: 1. By causing any boy or girl under 16 to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person 2. By employing children under 16 who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer or circus manager or engaged in a similar calling 3. By employing any descendant under 12 in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of said callings 4. By delivering a child under 16 gratuitously to any person following any of the callings enumerated in par 2 or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child 5. By inducing any child under 16 to abandon the home of its ascendants; guardians, curators or teachers to follow any person engaged in any of the callings mentioned in par 2 or to accompany any habitual vagrant or beggar, the offender being any person Note: Qualifying Circumstance – if the delivery of the child to any person following any of the callings of acrobat, rope-walker, diver or wild-animal trainer or circus manager or to any habitual vagrant of beggar is made in consideration of any price, compensation or promise, the penalty is higher. * The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor. Nature of the Business – This involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. Age – Must be below 16 years. At this age, the minor is still growing. * If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. Because if the employer is an ascendant, the law regards that he would look after the welfare and protection of the child; hence, the age is lowered to 12 years. Below that age, the crime is committed. * But remember Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act). It applies to minors below 18 years old, not 16 years old as in the Revised Penal Code. As long as the employment is inimical – even though there is no physical risk – and detrimental to the child’s interest – against moral, intellectual, physical, and mental development of the minor – the establishment will be closed. * Article 278 has no application if minor is 16 years old and above. But the exploitation will be dealt with by Republic Act No. 7610. * If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony.

ADDITIONAL PENALTIES FOR OTHER OFFENSES: (279) Article 280 QUALIFIED TRESPASS TO DWELLING ELEMENTS: 1. That the offender is a private person.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. That he enters the dwelling of another. 3. That such entrance is against the latter’s will. Notes: DWELLING – This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person. So, a person’s room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder.

Qualifying circumstance: if the offense is committed by means of violence or intimidation, the penalty is higher * There must be an opposition to the entry of the accused * If the entry is made by a way not intended for entry, that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking.

* Lack of permission to enter a dwelling does not amount to prohibition. So, one who enters a building is not presumed to be trespasser until the owner tells him to leave the building . In such a case, if he refuses to leave, then his entry shall now be considered to have been made without the express consent of the owner. (People vs. De Peralta, 42 Phil. 69) * Even if the door is not locked, for as long as it is closed, the prohibition is presumed especially if the entry was done at the late hour of the night or at an unholy hour of the day. (U. S. vs. Mesina, 21 Phil. 615) * Implied prohibition is present considering the situation – late at night and everyone’s asleep or entrance was made through the window “Against the will” -- This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. * To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.

* Prohibition is not necessary when violence or intimidation is employed by the offender * On violence, Cuello Calon opines that violence may be committed not only against persons but also against things. So, breaking the door or glass of a window or door constitutes acts of violence. Our Supreme Court followed this view in People v. Tayag. Violence or intimidation must, however, be anterior or coetaneous with the entrance and must not be posterior. But if the violence is employed immediately after the entrance without the consent of the owner of the house, trespass is committed. If there is also violence or intimidation, proof of prohibition to enter is no longer necessary.

* When there is no overt act of the crime intended to be committed, this is the crime * If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. But if the purpose is not shown and while inside the dwelling he was found by the occupants, one of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.

* May be committed even by the owner (as against the actual occupant) * Even if the house belonged to the accused, if the possession has been delivered to another by reason of contract or by a mere tolerance, his being the owner would not authorize him to enter the house against the will of the lawful occupant. His ownership is no authority for him to place the law in his hands. (People vs. Almeda, 75 Phil. 476)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Distinction between qualified trespass to dwelling and violation of domicile Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 – (1) entering the dwelling against the will of the owner without judicial order; (2) searching papers or other effects found in such dwelling without the previous consent of the owner thereof; and (3) refusing to leave the dwelling when so requested by the owner thereof, after having surreptitiously entered such dwelling.

Not applicable to: a. entrance is for the purpose of preventing harm to himself, the occupants or a third person b. purpose is to render some service to humanity or justice c. place is a café, tavern etc while open * Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will.

Medina case: when the accused entered the dwelling through the window, he had no intent to kill any person inside, but the intention to kill came to his mind when he was being arrested by the occupants thereof, the crime of trespass to dwelling is a separate and distinct offense from frustrated homicide

Article 281 OTHER FORMS OF TRESPASS ELEMENTS: 1. That the offender enters the closed premises or the fenced estate of another. 2. That the entrance is made while either of them is uninhabited. 3. That the prohibition to enter be manifest. 4. That the trespasser has not secured the permission of the owner or the caretaker thereof.

THREATS and COERCIONS Article 282 GRAVE THREATS Acts punishable:

1. By threatening another with the infliction upon his person, honor or property that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful and the offender (Note: threat is with condition) Elements a. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. b. That such wrong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unlawful. d. That the offender attains his purpose. 2. By making such threat without the offender attaining his purpose

3. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition (Note: threat is without condition)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Elements a. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. b. That such wrong amounts to a crime. c. That the threat is not subject to a condition Notes:

Intimidation is an indispensable element in the crime of threat. The very essence of threat is to sow fear, anxiety and insecurity in the mind of the offended party. It is done by threatening to commit the crime upon the person, honor and property of the offended party. There is a promise of some future harm or injury. Aggravating circumstances: if made in writing or thru a middleman Frustrated – if not received by the person being threatened * Art 284 bond for good behavior may be imposed (only in these offenses) Ortega Notes: Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime: (1)

Grave threats – when the wrong threatened to be inflicted amounts to a crime. The case falls under Article 282.

(2)

Light threats – if it does not amount to a crime. The case falls under Article 283.

But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 285. To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. It is, therefore, characterized by moral pressure that produces disquietude or alarm. The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition, whether lawful or not, and the offender shall have attained his purpose. So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. But if the purpose is not attained, the penalty lower by two degrees is imposed. The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation. Distinction between threat and coercion: The essence of coercion is violence or intimidation. There is no condition involved; hence, there is no futurity in the harm or wrong done. In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal. Distinction between threat and robbery: (1)

As to intimidation – In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional.

(2)

As to nature of intimidation – In robbery, the intimidation is personal; in threats, it may be through an intermediary.

(3)

As to subject matter – Robbery refers to personal property; threat may refer to the person, honor or property.

(4)

As to intent to gain – In robbery, there is intent to gain; in threats, intent to gain is not an essential element.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA (5)

In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the victim might offer; in threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate.

Article 283 LIGHT THREATS ELEMENTS: 1. That the offender makes a threat to commit a wrong. 2. That the wrong does not constitute a crime. 3. That there is a demand for money or that other condition is imposed, even though not unlawful 4. That the offender has attained his purpose or, that he has not attained his purpose * In order to convict a person of the crime of light threats, the harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful. Question & Answer Blackmailing constitutes what crime? It is a crime of light threat under Article 283 if there is no threat to publish any libelous or slanderous matter against the offended party. If there is such a threat to make a slanderous or libelous publication against the offended party, the crime will be one of libel, which is penalized under Article 356. For example, a person threatens to expose the affairs of married man if the latter does not give him money. There is intimidation done under a demand.

Article 284 BOND FOR GOOD BEHAVIOR * The law imposes the penalty of bond for good behavior only in case of grave and light threats. If the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat.

* Bond for good behavior means the posting of bond on the part of the accused in order to guarantee that he will not molest the offended party. It is in the nature of an additional penalty. * Bond to keep peace under Article 35 is applicable to all cases and is treated as a distinct penalty. If the sentenced prisoner fails to give the bond, he shall be detained for a period not exceeding six months if the crime for which he was convicted is classified as grave felony or for a period not exceeding thirty days if convicted for a light felony.

Article 285 OTHER LIGHT THREATS ELEMENTS: 1. Person shall threaten another with a weapon, or draw weapon in a quarrel unless in self-defense. 2. In the heat of anger, person orally threatens another with some harm constituting a crime, without persisting in the idea involved in the threat. Subsequent acts did not persist. 3. Person orally threatens another with harm not constituting a felony.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * In the crime of light threats, there is no demand for money and the threat made is not planned or done with deliberate intent. So threats which would otherwise qualify as grave threats, when made in the heat of anger or which is a product of a spur of the moment are generally considered as light threats. * Whether it is grave or light threats, the crime is committed even in the absence of the person to whom the threat is directed.

Article 286 GRAVE COERCIONS ELEMENTS: 1. That a person prevented another from doing something OR not to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, of force as would produce intimidation and control the will. 3. That the person that restrained the will and liberty by another had not the authority of law or the right to do so, or, in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right. Acts punished 1.

Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law;

2.

Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

* In grave coercion, the act of preventing by force must be made at the time the offended party was doing or was about to do the act to be prevented. * Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion. * If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. However, in case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. No person shall take the law into his own hands. Illustration: Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor, even if the obligation is long over due. * The violence employed in grave coercion must be immediate, actual, or imminent. In the absence of actual or imminent force or violence, coercion is not committed. The essence of coercion is an attack on individual liberty. * The physical violence is exerted to (1) prevent a person from doing something he wants to do; or (2) compel him to do something he does not want to do. Illustration: If a man compels another to show the contents of the latter’s pockets, and takes the wallet, this is robbery and not grave coercion. The intimidation is a means of committing robbery with violence or intimidation of persons. Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime. * Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore – it approximates violence.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * In Lee v. CA, 201 SCAR 405, it was held that neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. According to the court, the complainant may have acted reluctantly and with hesitation, but still, it was voluntary. It is different when a complainant refuses absolutely to act such an extent that she becomes a mere automaton and acts mechanically only, not of her own will. In this situation, the complainant ceases to exits as an independent personality and the person who employs force or intimidation is, in the eyes of the law, the one acting; while the hand of the complainant sign, the will that moves it is the hand of the offender.

Article 287 LIGHT COERCIONS ELEMENTS: 1. That the offender must be a creditor. 2. That he seizes anything belonging to his debtor. 3. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; 4. That the purpose of the offender is to apply the same to the payment of the debt.

UNJUST VEXATION * In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. * As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. * It is distinguished from grave coercion under the first paragraph by the absence of violence. Illustration: Persons stoning someone else’s house. So long as stoning is not serious and it is intended to annoy, it is unjust vexation. It disturbs the peace of mind. * The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws, not of men. The essence of the crimes is the attack on individual liberty.

Article 288 OTHER SIMILAR COERCIONS ELEMENTS OF NO. 1 Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; 1. That the offender is any person, agent or officer of any association or corporation. 2. That he or such firm or corporation has employed laborers or employees. 3. That he forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from his or from said firm or corporation. ELEMENTS OF NO. 2 Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects. 2. That those tokens or objects are other than the legal tender currency to the Philippines. 3. That such employee or laborer does not expressly request that he be paid by means of tokens or objects. * Under the Republic Act No. 602, known as the Minimum Wage Law , wages of laborers must be paid in legal tender. Accordingly, it is unlawful to pay the wages of the laborers in the form of promissory notes, vouchers, coupons, tokens, or any other forms alleged to represent legal tender.

Article 289 FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS ELEMENTS: 1. That the offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work 2. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. * Peaceful picketing is part of the freedom of speech and is not covered by this article. * Preventing employees or laborers from joining any registered labor organization is punished under Art. 248 of the Labor Code.

DISCOVERY AND REVELATION OF SECRETS Article 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE ELEMENTS: 1. That the offender is a private individual or even a public officer not in the exercise of his official function, 2.

That he seizes the papers or letters of another.

3.

That the purpose is to discover the secrets of such another person.

4.

That offender is informed of the contents or the papers or letters seized.

Notes: * This is a crime against the security of one’s papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication.

* Not applicable to parents with respect to minor children * The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them. The teachers or other persons entrusted with the care and education of minors are included in the exceptions. In a case decided by the Supreme Court, a spouse who rummaged and found love letters of husband to mistress does not commit this crime, but the letters are inadmissible in evidence because of unreasonable search and seizure. The ruling held that the wife should have applied for a search warrant.

* Contents need not be secret but purpose prevails * According to Ortega, it is not necessary that the offender should actually discover the contents of the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Circumstances qualifying the offense: when the offender reveals contents of such papers or letters of another to a 3rd person, the penalty is higher Distinction from estafa, damage to property, and unjust vexation: If the act had been executed with intent of gain, it would be estafa; If, on the other hand, the purpose was not to defraud, but only to cause damage to another’s, it would merit the qualification of damage to property; If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.

Article 291 REVEALING SECRETS WITH ABUSE OF OFFICE ELEMENTS: 1. That the offender is a manager, employee or servant. 2. That he learns the secrets of his principal or master in such capacity. 3. That he reveals such secrets. * An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. * The essence of this crime is that the offender learned of the secret in the course of his employment. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter. * If the matter pertains to the business of the employer or master, damage is necessary and the agent, employee or servant shall always be liable. Reason: no one has a right to the personal privacy of another.

Article 292 REVELATION OF INDUSTRIAL SECRETS ELEMENTS: 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment. 2. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned. 3.

That the offender reveals such secrets.

4.

That the prejudice is caused to the owner.

* A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292.

TITLE TEN CRIMES AGAINST PROPERTY Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Crimes against property 1. Robbery with violence against or intimidation of persons (Art. 294); 2. Attempted and frustrated robbery committed under certain circumstances (Art. 297); 3. Execution of deeds by means of violence or intimidation (Art. 298); 4. Robbery in an inhabited house or public building or edifice devoted to worship (Art. 299); 5. Robbery in an inhabited place or in a private building (Art. 302); 6. Possession of picklocks or similar tools (Art. 304); 7. Brigandage (Art. 306); 8. Aiding and abetting a band of brigands (Art. 307); 9. Theft (Art. 308); 10. Qualified theft (Art. 310); 11. Theft of the property of the National Library and National Museum (Art. 311); 12. Occupation of real property or usurpation of real rights in property (Art. 312); 13. Altering boundaries or landmarks (Art. 313); 14. Fraudulent insolvency (Art. 314); 15. Swindling (Art. 315); 16. Other forms of swindling (Art. 316); 17. Swindling a minor (Art. 317); 18. Other deceits (Art. 318); 19. Removal, sale or pledge of mortgaged property (Art. 319); 20. Destructive arson (Art. 320); 21. Other forms of arson (Art. 321); 22. Arson of property of small value (Art. 323); 23. Crimes involving destruction (Art. 324); 24. Burning one’s own property as means to commit arson (Art. 325); 25. Setting fire to property exclusively owned by the offender (Art. 326); 26. Malicious mischief (Art. 327); 27. Special case of malicious mischief (Art. 328); 28. Damage and obstruction to means of communication (Art. 330); 29. Destroying or damaging statues, public monuments or paintings (Art. 331).

Article 293 ROBBERY IN GENERAL ELEMENTS: 1. That there be personal property belonging to another. 2.

That there is unlawful taking of that property.

3.

That the taking must be with intent to gain, and

4.

That there is violence against or intimidation of any person, or force upon anything.

Notes: ROBBERY – This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything.

Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon things. Belonging to another – person from whom property was taken need not be the owner, legal possession is sufficient * The property must be personal property and cannot refer to real property.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Name of the real owner is not essential so long as the personal property taken does not belong to the accused except if crime is robbery with homicide * The owner of the property may be held liable for robbery where he forcible takes the property from the possession of the bailee with intent to charge the latter with its value. (U. S. vs. Albao, 29 Phil. 86) * In the absence of any explanation as to how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, the possessor must necessarily be considered the author of the aggression and death of the victim as well as of the robbery committed. (People vs. Rapuela. G. R. NO. 85178, March 15, 1990) Suppose the property is res nullus or without an owner? The crime of robbery or theft cannot be committed if the property is without an owner for the simple reason that no one can be prejudiced by the taking of the personal property, even though the intent to gain is present in the taking. Taking of personal property – must be unlawful; if given in trust – estafa * The taking of the property must be coupled with the intention to permanently deprive the offended party of his possession of the things taken. (People vs. Kho Choc, C. A., 50 O. G. 1667) As to robbery with violence or intimidation – from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unlawful taking is complete As to robbery with force upon things – thing must be taken out of the building Intent to gain – presumed from unlawful taking * Intent to gain may be presumed from the unlawful taking of another’s property. However, when one takes a property under the claim of ownership or title, the taking is not considered to be with intent to gain. (U. S. vs. Manluco, et al., 28 Phil. 360) * When there’s no intent to gain but there is violence in the taking – grave coercion * Violence or intimidation must be against the person of the offended party, not upon the thing General rule: violence or intimidation must be present before the “taking” is complete Except: when violence results in – homicide, rape, intentional mutilation or any of the serious physical injuries in par 1 and 2 of art 263, the taking of the property is robbery complexed with any of these crimes under art 294, even if taking is already complete when violence was used by the offender Use of force upon things – entrance to the building by means described in arts 299 and 302 (offender must enter) * The other kind of robbery is one that is committed with the use of force upon anything in order to take with intent to gain, the personal property of another. The use of force here must refer to the force employed upon things in order to gain entrance into a building or a house. (People vs. Adorno, C. A. 40 O. G. 567) * When both violence or intimidation and force upon things concur – it is robbery with violence Robbery and Theft, compared. 1. Both robbery and theft involve unlawful taking or asportation as an element; 2. Both involve personal property belonging to another; 3. In both crimes, the taking is done with intent to gain;

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. In robbery, the taking is done either with the use of violence or intimidation of person or the employment of force upon things; whereas in theft, the taking is done simply without the knowledge and consent of the owner. Robbery with violence Intent to gain Immediate harm

Grave threats

Grave coercion

No intent to gain Intimidation; promises some future harm or injury

None Intimidation (effect) is immediate and offended party is compelled to do something against his will (w/n right or wrong)

Robbery Bribery X didn’t commit crime but is intimidated to X has committed a crime and gives deprive him of his property money as way to avoid arrest or prosecution Deprived of money thru force or intimidation Giving of money is in one sense voluntary Neither Transaction is voluntary and mutual Ex. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm ANTI – CARNAPPING ACT ( RA # 6539 )

“Carnapping” is the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things. Any vehicle which is motorized using the streets which are public, not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. A tricycle which is not included in the enumeration of exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law, the stealing of which comes within its penal sanction. If the vehicle uses the streets with or without the required license, the same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs. People, 107 SCRA 118)

Article 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON Acts punished as robbery with violence against or intimidation of persons By reason or on occasion of the robbery, the following are committed: 1.

homicide

2. robbery accompanied with rape or intentional mutilation, SPI – insane, imbecile, impotent or blind 3. SPI – lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for work habitually engaged in 4. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution – SPI/deformity, or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the work for > 90 days; > 30 days 5.

Any kind of robbery with less serious physical injuries or slight physical injuries

Notes:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA SPECIAL COMPLEX CRIMES (specific penalties prescribed)

ROBBERY WITH HOMICIDE – a. if original design is robbery and homicide is committed – robbery with homicide even though homicide precedes the robbery by an appreciable time. b. If original design is not robbery but robbery was committed after homicide as an afterthought – 2 separate offenses. c. Still robbery with homicide – if the person killed was an innocent bystander and not the person robbed and if death supervened by mere accident. * The original criminal design of the culprit must be Robbery and the Homicide is perpetrated with a view to the consummation of the Robbery. * If death results or even accompanies a robbery, the crime will be robbery with homicide provided that the robbery is consummated.

* As long as the criminal objective or plan is to rob, whether the killing committed by reason or on occasion thereof is intentional or accidental, the crime is Robbery with Homicide. ( Pp vs. Pecato, 151 scra 14 ) As long as there was killing when Robbery was taking place, Robbery with Homicide was committed, the killing occurring on the occasion thereof. Problem: A, B, C and D robbed a bank. When they were about to flee, policemen came, and they traded shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latter’s action of arresting or trying to arrest the robbers, the crime is still Robbery with Homicide. * As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. (People vs. Tolentino, 165 SCRA 490). * Thus, as a member of the “agaw-armas” gang whose plan and design is to rob a policeman of his service revolver, but because he fears that said policeman may beat him to the draw, first shoots the policeman fatally and only after when the latter lies dead, does he get the gun – the crime is still considered Robbery with Homicide. * This is a crime against property, and therefore, you contend not with the killing but with the robbery. * As long as there is only one (1) robbery, regardless of the persons killed, the crime will only be one (1) count of robbery with homicide. The fact that there are multiple killings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law. * If, on the occasion or by reason of the robbery, somebody is killed, and there are also physical injuries inflicted by reason or on the occasion of the robbery, don’t think that those who sustained physical injuries may separately prosecute the offender for physical injuries. Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide. * This is not a complex crime as understood under Article 48, but a single indivisible crime. This is a special complex crime because the specific penalty is provided in the law. * The term “homicide” is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder. So, any kind of killing by reason of or on the occasion of a robbery will bring about the crime of robbery with homicide even if the person killed is less than three days old, or even if the person killed is the mother or father of the killer, or even if on such robbery the person killed was done by treachery or any of the qualifying circumstances. In short, there is no crime of robbery with parricide, robbery with murder, robbery with infanticide – any and all forms of killing is referred to as homicide. Illustration:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA The robbers enter the house. In entering through the window, one of the robbers stepped on a child less than three days old. The crime is not robbery with infanticide because there is no such crime. The word homicide as used in defining robbery with homicide is used in the generic sense. It refers to any kind of death. * Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the killing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide. * When two or more persons are killed during the robbery, such should be appreciated as an aggravating circumstance. * As long as there is only one robbery, regardless of the persons killed, you only have one crime of robbery with homicide. Note, however, that “one robbery” does not mean there is only one taking. Illustration: Robbers decided to commit robbery in a house, which turned out to be a boarding house. Thus, there were different boarders who were offended parties in the robbery. There is only one count of robbery. If there were killings done to different boarders during the robbery being committed in a boarder’s quarter, do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house, they are only impelled by one criminal intent to rob and there will only be one case of robbery. If there were homicide or death committed, that would only be part of a single robbery. That there were several killings done would only aggravate the commission of the crime of robbery with homicide. * In People v. Quiñones, 183 SCRA 747, it was held that there is no crime of robbery with multiple homicides. The charge should be for robbery with homicide only because the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294. All the killings are merged in the composite integrated whole that is robbery with homicide so long as the killings were by reason or on occasion of the robbery. * In another case, a band of robbers entered a compound, which is actually a sugar mill. Within the compound, there were quarters of the laborers. They robbed each of the quarters. The Supreme Court held that there was only one count of robbery because when they decided and determined to rob the compound, they were only impelled by one criminal intent to rob. * With more reason, therefore, if in a robbery, the offender took away property belonging to different owners, as long as the taking was done at one time, and in one place, impelled by the same criminal intent to gain, there would only be one count of robbery. * In robbery with homicide as a single indivisible offense, it is immaterial who gets killed. Even though the killing may have resulted from negligence, you will still designate the crime as robbery with homicide. Illustration: On the occasion of a robbery, one of the offenders placed his firearm on the table. While they were ransacking the place, one of the robbers bumped the table. As a result, the firearm fell on the floor and discharged. One of the robbers was the one killed. Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence, you do not separate the homicide as one of the product of criminal negligence. It will still be robbery with homicide, whether the person killed is connected with the robbery or not. He need not also be in the place of the robbery. * In one case, in the course of the struggle in a house where the robbery was being committed, the owner of the place tried to wrest the arm of the robber. A person several meters away was the one who got killed. The crime was held to be robbery with homicide. * Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers. It is enough that the homicide was committed by reason of the robbery or on the occasion thereof. Illustration: There are two robbers who broke into a house and carried away some valuables. After they left such house these two robbers decided to cut or divide the loot already so that they can go of them. So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him. Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter. Would that bring about the crime of robbery with homicide? Yes. Even if the robbery was already consummated, the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * In People v. Domingo, 184 SCRA 409, on the occasion of the robbery, the storeowner, a septuagenarian, suffered a stroke due to the extreme fear which directly caused his death when the robbers pointed their guns at him. It was held that the crime committed was robbery with homicide. It is immaterial that death supervened as a mere accident as long as the homicide was produced by reason or on the occasion of the robbery, because it is only the result which matters, without reference to the circumstances or causes or persons intervening in the commission of the crime which must be considered. * Remember also that intent to rob must be proved. But there must be an allegation as to the robbery not only as to the intention to rob. * If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft. If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed, then there are will be two separate crimes. Illustration: If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and took this, the crime would be not robbery with homicide because the primary criminal intent is to kill. So, there will be two crimes: one for the killing and one for the taking of the property after the victim was killed. Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead. * For robbery with homicide to exist, homicide must be committed by reason or on the occasion of the robbery, that is, the homicide must be committed “in the course or because of the robbery.” Robbery and homicide are separate offenses when the homicide is not committed “on the occasion” or “by reason” of the robbery. * Where the victims were killed, not for the purpose of committing robbery, and the idea of taking the money and other personal property of the victims was conceived by the culprits only after the killing, it was held in People v. Domingo, 184 SCRA 409, that the culprits committed two separate crimes of homicide or murder (qualified by abuse of superior strength) and theft. * The victims were killed first then their money was taken the money from their dead bodies. This is robbery with homicide. It is important here that the intent to commit robbery must precede the taking of human life in robbery with homicide. The offender must have the intent to take personal property before the killing. * It must be conclusively shown that the homicide was committed for the purpose of robbing the victim. In People v. Hernandez, appellants had not thought of robbery prior to the killing. The thought of taking the victim’s wristwatch was conceived only after the killing and throwing of the victim in the canal. Appellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the killing.

* However, if the elements of the crime of robbery with violence employed against persons, fail to meet the requirements of Article 294, as when the robbery resulted only in the commission of frustrated homicide, then Article 294 should be ignored and the general provision of the law should be applied, such as the provision of Article 48. * If robbery is proved but the homicide is not proven , the accused should be convicted of robbery only and the penalty shall not be based under paragraph 1 but on paragraph 5 of the same article, since only intimidation or violence was employed and it did not result in any of the situations mentioned in paragraphs 1 to 4. * If the robbery is not proven but the homicide is established , then the accused should be held liable only for homicide and the penalty shall be taken from Article 249, which deals with crimes against property, so, if several homicides are alleged in the information for robbery with homicide, and all of these homicides are proven beyond reasonable doubt, the court will impose a separate penalty for each of the homicide that is established by the evidence. (People vs. Barruga, 61 Phil. 318) * It is important to remember that the special complex crime of robbery with homicide is committed, where there exists a direct relation, an intimate connection between the robbery and the killing, irrespective of whether the killing be prior or subsequent to the robbery; or whether both crimes were committed at the same time. (People vs. Puesca, 87 SCRA 130)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Robbery with homicide need not be committed inside a building . What constitutes the crime as robbery with homicide is the killing of a person on the occasion or by reason of the taking of personal property belonging to another with intent to gain. * The killing on the occasion of robbery may come in different forms. 1) It may be done by the offender for the purpose of suppressing evidence, like when the victim is killed because he happens to know the person of the offender; or 2) when the killing is done in order to prevent or remove any opposition which the victim may put up as regards the taking of his personal belongings. 3) The killing may also result from the offender’s defense of his possession of the stolen goods. 4) Or it may be resorted to by the offender to facilitate his escape after the commission of the robbery. * In People vs. Macalalad, 9 Phil. (1907), the Supreme Court ruled that whenever homicide is committed as a consequence or on the occasion of a robbery, all those who took part in the commission of the robbery are guilty as principals in the crime of robbery with homicide unless it appears that the principal claiming innocence in the killing, has attempted or tried to prevent the killing. The burden of proving the attempt to prevent others from killing the victim rests on the co-principal of the crime who makes such assertion or claim. * The same principle has been applied by the Supreme Court where the crime committed is robbery accompanied by rape. The criminal liability of the person or persons who took no part in the commission of the rape which accompanied the robbery is the same as the robber or robbers who actually committed the rape unless the robber or robbers claiming innocence of the rape had endeavored to prevent the commission of the rape. (People vs. Tiongco, 37 Phil. 95)

ROBBERY WITH RAPE – * intent to commit robbery must precede rape. * Prosecution of the crime need not be by offended party – fiscal can sign the information. * When rape and homicide co-exist, rape should be considered as aggravating only and the crime is still robbery with homicide * Article 48 is not applicable to this crime because robbery is not a necessary means for the commission of rape. Neither is rape necessary to commit robbery. * This is another form of violence or intimidation upon person. The rape accompanies the robbery. In this case where rape and not homicide is committed, there is only a crime of robbery with rape if both the robbery and the rape are consummated. If during the robbery, attempted rape were committed, the crimes would be separate, that is, one for robbery and one for the attempted rape. * The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery, which is a crime against property. So, even though the robber may have married the woman raped, the crime remains robbery with rape. The rape is not erased. This is because the crime is against property which is a single indivisible offense. * If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of the robbers, that would not erase the crime of rape. The offender would still be prosecuted for the crime of robbery with rape, as long as the rape is consummated.

* Pardon by the offended party will not alter the criminal liability of the offender because in robbery with rape, the crime committed is not a crime against chastity but a crime against property. Even under the present amendment which classifies rape as a crime against person, the change has no legal effect on the provision of Article 294 since the special complex crime of robbery with rape is considered, by express provision of law, a single crime notwithstanding that there is a plurality of crimes committed. * If the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender, that would bring about a bar to the prosecution of the attempted rape. If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed. But if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed: attempted rape and theft. * There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa. * The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought.

* If the two (2) crimes were separated both by time and place, there is no complex crime of Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and was made to board a taxi; and before boarding, she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi, and that after alighting from the taxi, the two (2) companions left her, and the man who had grabbed her brought her to a motel, where by means of force and intimidation he was able to have sex with her, the crimes committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be complexed with Robbery. (People vs. Angeles, 222 SCRA 451). * In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victim’s money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offender’s prurient desires surfaced. They persisted in satisfying their lust. They would have forgotten about their intent to rob if not for the accidental touching of the victim’s ring and wristwatch. The taking of the victim’s valuables turned out to be an afterthought. It was held that two distinct crimes were committed: rape with homicide and theft. * In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes – rape and robbery were committed – not robbery with rape. In the latter, the criminal intent to gain must precede the intent to rape.

* If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed consent to the sexual intercourse, the accused is guilty of two distinct crimes: rape and unjust vexation. (People vs. Villarino, C. A. G. R. No. 6342-R, Nov. 26, 1951)

ROBBERY WITH INTIMIDATION – * acts done by the accused which by their own nature or by reason of the circumstances inspire fear in the person against whom they are directed * In the taking of personal property, it is necessary that violence must be employed by the offender in order that the taking may be considered as robbery. So, where the taking is without violence or intimidation and the same is complete, but the victim pursued the offender in order to recover the personal property taken and by the reason thereof, he suffers less serious or slight physical injuries in the hands of the offender, the violence employed on the victim which resulted to his injuries will not convert the taking of his personal property to robbery. In such a case, the offender is liable for two crimes, namely, theft and less serious or slight physical injuries. * The intimidation must be present at the time of the taking before it is completed . If the taking is completed without intimidation and it is employed by the offender only to prevent the owner from recovering his stolen property, two crimes are committed by the offender: theft and grave threat. * If violence is employed against the offended party in order to deprive him of his personal property and the violence resulted to the infliction of less serious or slight physical injuries, the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA crime committed would only be robbery. Hence, there is no crime of robbery with less serious or slight injuries. (U. S. vs. Barroga, 21 Phil 161)

On ROBBERY WITH PHYSICAL INJURIES * To be considered as such, the physical injuries must always be serious. If the physical injuries are only less serious or slight, they are absorbed in the robbery. The crime becomes merely robbery. But if the less serious physical injuries were committed after the robbery was already consummated, there would be a separate charge for the less serious physical injuries. It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery. The same is true in the case of slight physical injuries. Illustration: After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed, the owner of the house chased them and the robbers fought back. If only less serious physical injuries were inflicted, there will be separate crimes: one for robbery and one for less serious physical injuries. * But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed, the owner or members of the family of the owner chased them, and they fought back and somebody was killed, the crime would still be robbery with homicide. But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body, the crime would still be robbery with serious physical injuries. The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated. * In Article 299, it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 30 days that the law requires such physical injuries to have been inflicted in the course of the execution of the robbery, and only upon persons who are not responsible in the commission of the robbery. * But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263, even though the physical injuries were inflicted upon one of the robbers themselves, and even though it had been inflicted after the robbery was already consummated, the crime will still be robbery with serious physical injuries. There will only be one count of accusation. Illustration: After the robbers fled from the place where the robbery was committed, they decided to divide the spoils and in the course of the division of the spoils or the loot, they quarreled. They shot it out and one of the robbers was killed. The crime is still robbery with homicide even though one of the robbers was the one killed by one of them. If they quarreled and serious physical injuries rendered one of the robbers impotent, blind in both eyes, or got insane, or he lost the use of any of his senses, lost the use of any part of his body, the crime will still be robbery with serious physical injuries. * If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a deformity in his face, the crime will only be robbery and a separate charge for the serious physical injuries because when it is a deformity that is caused, the law requires that the deformity must have been inflicted upon one who is not a participant in the robbery. Moreover, the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 30 days, must have been inflicted in the course of the execution of the robbery or while the robbery was taking place. * If it was inflicted when the thieves/robbers are already dividing the spoils, it cannot be considered as inflicted in the course of execution of the robbery and hence, it will not give rise to the crime of robbery with serious physical injuries. You only have one count of robbery and another count for the serious physical injuries inflicted. * If, during or on the occasion or by reason of the robbery, a killing, rape or serious physical injuries took place, there will only be one crime of robbery with homicide because all of these – killing, rape, serious physical injuries -- are contemplated by law as the violence or intimidation which characterizes the taking as on of robbery. You charge the offenders of robbery with homicide. The rape or physical injuries will only be appreciated as aggravating circumstance and is not the subject of a separate prosecution. They will only call for the imposition of the penalty in the maximum period. * If on the occasion of the robbery with homicide, robbery with force upon things was also committed, you will not have only one robbery but you will have a complex crime of robbery with homicide and robbery with force upon things (see Napolis v. CA). This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Robbery with homicide, robbery with intentional mutilation and robbery with rape are not qualified by band or uninhabited place. These aggravating circumstances only qualify robbery with physical injuries under subdivision 2, 3, and 4 of Article 299. * When it is robbery with homicide, the band or uninhabited place is only a generic aggravating circumstance. It will not qualify the crime to a higher degree of penalty. * In People v. Salvilla, it was held that if in a robbery with serious physical injuries, the offenders herded the women and children into an office and detained them to compel the offended party to come out with the money, the crime of serious illegal detention was a necessary means to facilitate the robbery; thus, the complex crimes of robbery with serious physical injuries and serious illegal detention. * But if the victims were detained because of the timely arrival of the police, such that the offenders had no choice but to detain the victims as hostages in exchange for their safe passage, the detention is absorbed by the crime of robbery and is not a separate crime. This was the ruling in People v. Astor.

On ROBBERY WITH ARSON * Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery. The composite crime would only be committed if the primordial intent of the offender is to commit robbery and there is no killing, rape, or intentional mutilation committed by the offender during the robbery. Otherwise, the crime would be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that order, and the arson would only be an aggravating circumstance. It is essential that robbery precedes the arson, as in the case of rape and intentional mutilation, because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery. * Moreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294, but not of robbery by the use of force upon things in Articles 299 and 302. * So, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed.

Article 295 QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION Qualifying circumstances in robbery with violence or intimidation of persons, if any of the offenses defined in subdivisions 3, 4 and 5 of Art 294 is committed: a. in an uninhabited place or b. by a band or c. by attacking a moving train, street car, motor vehicle or airship, or d. by entering the passenger’s compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or e. on a street, road, highway or alley and the intimidation is made with the use of firearms, the offender shall be punished by the max period of the proper penalties prescribed in art 294 Notes: * Must be alleged in the information * Can’t be offset by generic mitigating * Art 295 will not apply to: robbery w/ homicide, rape or SPI under par 1 of art 263

Article 296 ROBBERY BY A BAND Notes:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA BAND is defined as consisting of at least four armed malefactors organized with the intention of carrying out any unlawful design. Their participation in the commission of the crime must be actual. The offender must be principal by direct participation, so that, a principal by inducement cannot be convicted of this crime where the aggravating circumstance of band shall be appreciated against him, since the law requires as a condition to its commission the actual participation of the offender in the execution of the crime. In such a case, the conviction of a principal by inducement will only be limited to his criminal liability as a co-conspirator. Liability for the acts of the other members of the band a. he was a member of the band b. he was present at the commission of a robbery by that band c. other members of the band committed an assault d. he did not attempt to prevent the assault Conspiracy to commit robbery with homicide – even if less than 4 armed men Conspiracy to commit robbery only but homicide was committed also on the occasion thereof – all members of the band are liable for robbery with homicide * Even if the agreement refers only to the robbery, nonetheless, where the robbery is committed by a band and a person is killed, any member who was present at the commission of the robbery and who did not do anything to prevent the killing of the victim on the occasion of the robbery shall be held liable for the crime of robbery with homicide. (People vs. Cinco, 194 SCRA 535) * Conspiracy is presumed when 4 or more armed persons committed robbery * Unless the others attempted to prevent the assault – guilty of robbery by band only * Band is a generic aggravating circumstance in the crime of robbery with homicide or rape. But in the other circumstances provided under Article 294 particularly paragraphs 3, 4 and 5, band is a special aggravating circumstance which must be alleged in the information. * Band is a special aggravating circumstance if the robbery results in the infliction of serious physical injuries. * The arms contemplated under this article refers to any deadly weapon and is not limited to firearms, whether long or short.

Article 297 ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE Notes: * Whether robbery is attempted or frustrated, penalty is the same * When the robbery is attempted or frustrated, Art. 294 has no application because the robbery and the homicide must be both consummated. * Where the homicide is only attempted or frustrated, Article 297 does not apply. In the same manner, where the attempted or frustrated robbery results in the commission of serious physical injuries, Article 297 has no application. In such a case, the crime shall be treated under the provisions of Article 48 on ordinary complex crimes. Consequently, the penalty prescribed by Article 48 shall be observed.

Article 298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION ELEMENTS:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. That the offender has intent to defraud another. 2. That the offender compels him to sign, execute, or deliver any public instrument or document. 3. That the compulsion is by means of violence or intimidation. * The element of intent to gain or fraudulent intent is what distinguishes this felony from grave coercion. Although both crimes share a common element which is the compelling of any person to do something against his will, nonetheless, in coercion, the fear created in the mind of the offended party is not immediate but remote. In this type of robbery, the fear is immediate and not remote. In coercion, there is no intent to gain whereas in this form of robbery, intent to gain is an indispensable element.

Article 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP ELEMENTS: 1. That the offender entered (a) an inhabited house, or (b) public buildings, or (c) edifice devoted to religious worship. 2. That the entrance was effected by any of the following means: a. Through an opening not intended for entrance or egress. b. By breaking any wall, roof, or floor or breaking any door or window. c. By using false keys, picklocks or similar tools or. d. By using any fictitious name or pretending the exercise of public authority. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. Notes: * In this kind of Robbery, no violence or intimidation against persons is ever used. * Includes dependencies (stairways, hallways, etc.) * A small store located on the ground floor of a house is a dependency of the house, there being no partition between the store and the house and in going to the main stairway, one has to enter the store which has a door. (U.S. vs. Ventura, 39 Phil. 523). INHABITED HOUSE – any shelter, ship or vessel constituting the dwelling of one or more person even though temporarily absent – dependencies, courts, corals, barns, etc. * NOT INCLUDED – ORCHARD, LANDS FOR CULTIVATION. * Important for robbery by use of force upon things, it is necessary that offender enters the building or where object may be found. NO ENTRY, NO ROBBERY * In the absence of evidence to show how bandits effected an entrance into the convent which they robbed, there can be no conviction under this article. The act would be treated as Theft. ( U.S. vs. Callotes, 2 PHIL 16 ) "FORCE UPON THINGS" has a technical meaning in law. Not any kind of force upon things will characterize the taking as one of robbery. The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed. In other words, the offender must have entered the premises where the robbery was committed. If no entry was effected, even though force may have been employed actually in the taking of the property from within the premises, the crime will only be theft.

* The term force upon things has a legal meaning. It means the employment of force to effect entrance into the house or building by destroying the door, window, roof, wall or floor of the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA aforesaid house or building. In other words, the force upon things has no reference to personal property but to a house or building which is ordinarily classified as real property. * Entrance is necessary – mere insertion of hand is not enough (whole body); not to get out but to enter – therefore, evidence to such effect is necessary Two predicates that will give rise to the crime as robbery: 1.

By mere entering alone, a robbery will be committed if any personal property is taken from within;

2.

The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises.

* If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. * Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a). Illustration: The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. Illustration: On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose. Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. * Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft. * Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.

Illustration: A found B inside his (A’s) house. He asked B what the latter was doping there. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A, he has already entered. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered.

P v. Lamahang – intent to rob being present is necessary Place: house or building; not car PUBLIC BUILDING – every building owned, rented or used by the government (though owned by private persons) though temporarily vacant * Not robbery – passing through open door but getting out of a window * If accused entered the house through a door, and it was while escaping that he broke any wall, floor or window after taking personal property inside the house – there is no Robbery committed, only Theft.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Outside door must be broken, smashed. Theft – if lock is merely removed or door was merely pushed * Breaking of the door under Article299 (b) – Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door. * Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft. But the ruling is now abandoned because the door is considered useless without the lock. Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence, the taking inside is considered robbery with force upon things.

FALSE KEYS – genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock PICKLOCKS – specially made, adopted for commission of robbery KEY – stolen not by force, otherwise, it’s robbery by violence and intimidation against persons * False key – used in opening house and not furniture inside, otherwise, theft (for latter to be robbery., must be broken and not just opened) * Use of picklocks or false keys refers to the entering into the premises – If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept.

GEN. RULE: outside door. EXCEPTION: inside door in a separate dwelling * If in the course of committing the robbery within the premises some interior doors are broken, the taking from inside the room where the door leads to will only give rise to theft. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door. * But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the breaking of the cabinet door would characterize the taking as robbery. Although that particular door is not included as part of the house, the cabinet keeps the contents thereof safe.

> E.g. pretending to be police to be able to enter (not pretending after entrance) * When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things.

* If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house, and because of that, the closed door was opened, or that they were NBI agents executing a warrant of arrest, and so the occupant opened the door, any taking personal property thereat with intent to gain, would be Robbery. Question & Answer Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person. They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there. The guard obliged. They went inside and broke in . They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away. What crime was committed? It is only theft because the premises where the simulation of public authority was committed is not an inhabited house, not a public building, and not a place devoted to religious worship. Where the house is a private building or is uninhabited, even though there is simulation of public authority in committing the taking or even if he used a fictitious name, the crime is only theft.

ELEMENTS OF ROBBERY WITH FORCE UPON THINGS, SUBDIVISION (B) ART. 299 Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it 2. That the offender takes personal property belonging to another with intent to gain, under any of the following circumstances. a. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or b. by taking such furniture or objects away to be broken or forced open outside the place of the robbery. Notes: * Entrance ( no matter how done) * If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept.

* Offender may be servants or guests * A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept, is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein. * When sealed box is taken out for the purpose of breaking it, no need to open – already consummated robbery Estafa – if box is in the custody of accused Theft – if box found outside and forced open

Article 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND * When the robbery with force upon things is committed in an uninhabited place and by a band, the robbery becomes qualified. In the same manner, where robbery with violence against or intimidation of persons is committed by a band or in an uninhabited place, the crime becomes qualified. * The place considered uninhabited when it is not used as a dwelling. It may refer to a building or a house which is not used as a dwelling. * If a house is inhabited and its owners or occupants temporarily left the place to take a short vacation in another place, their casual absence will not make the place or house uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

Article 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Notes: Inhabited house – Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Public building – Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same.

dependencies – are all interior courts, corrals, warehouses, granaries or enclosed places: a. contiguous to the building

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Elements and Notes in Criminal Law Book II by RENE CALLANTA b. having an interior entrance connected therewith c. which form part of the whole Garage – must have 3 requirements. Exception: orchards/lands

Article 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING ELEMENTS: 1. That the offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. 2. that any of the following circumstances was present: a. That entrance was effected through an opening not intended for entrance or egress. b. A wall, roof, floor, or outside door or window was broken. c. The entrance was effected through the use of false keys, picklocks or other similar tools. d. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken or e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere. 3. That with intent to gain the offender took therefrom personal property belonging to another. Notes: * Second kind of robbery with force upon things * It must be taken note of, that the entrance by using any fictitious name or pretending the exercise of public authority is not among those mentioned in Article 302 because the place is Uninhabited and therefore without person present. Likewise, in this class of Robbery, the penalty depends on the amount taken disregarding the circumstances of whether the robbers are armed or not as in the case in Robbery in Inhabited Place. UNINHABITED PLACE – is an uninhabited building (habitable, not any of the 3 places mentioned) Ex. warehouse, freight car, store. Exception: pigsty * A store may or may not be an inhabited place depending upon the circumstances of whether or not it is usually occupied by any person lodging therein at night. Although it may be used as a dwelling to sustain a conviction under Article 299, the information must allege that the same was used and occupied as a dwelling (People vs. Tubog, 49 Phil. 620), otherwise Art. 302 is applicable. * Same manner as 299 except that was entered into was an uninhabited place or a building other than the 3 mentioned in 299. Exception: does not include use of fictitious name or pretending the exercise of public authority * Breaking of padlock (but not door) is only theft False keys – genuine keys stolen from the owner or any other keys other than those intended by the owner for use in the lock forcibly opened

Article 303 ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING * Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * The word cereals however must be understood to mean “seedlings” or “semilla.” It does not include hulled rice. It may include palay or unhulled palay. * While the law uses the term uninhabited place, it however refers to uninhabited building and its dependencies. If the cereals, fruits or firewood were taken outside a building and its dependencies, the crime committed would only be theft even though the taking was done in an uninhabited place.

Article 304 ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS ELEMENTS: 1. That the offender has in his possession picklocks or similar tools. 2. That such picklocks or similar tools are specially adopted to the commission of robbery. 3. That the offender does not have lawful cause for such possession. Note: Actual use of the same is not necessary * The law also prohibits the manufacture or fabrication of such tools. If the manufacturer or maker or locksmith himself is the offender, a higher penalty is prescribed by law. Supposing that in the crime of robbery, the offender used a picklock to enter a building. Can he be charged of illegal possession of picklocks or similar tools? The answer is NO since the same possession of these tools is already absorbed in the graver crime of robbery.

Article 305 FALSE KEYS WHAT CONSTITUTES: 1. Picklocks, etc. 2. Genuine key stolen from owner. 3. Any key other than those intended by owner for use in the lock forcibly opened by the offender Notes: * Possession of false keys here not punishable * If key was entrusted and used to steal, not robbery (not stolen)

BRIGANDAGE Brigandage – This is a crime committed by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence.

Article 306 WHO ARE BRIGANDS BRIGANDS – more than three armed persons forming a band Elements of brigandage: 1. There are least four armed persons; 2.

They formed a band of robbers;

3.

The purpose is any of the following: a.

To commit robbery in the highway;

b.

To kidnap persons for the purpose of extortion or to obtain ransom; or

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

To attain by means of force and violence any other purpose.

Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them) b. possession of any kind of arms (not just firearm) BRIGANDAGE ROBBERY IN BAND Purposes are given Only to commit robbery, not necessarily in hi-way Mere formation of a band for If the purpose is to commit a part robbery the above purpose Necessary to prove that band actually committed robbery * There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage.

* The primary object on the law on brigandage is to prevent the formation of bands of robbers. Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes. * Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appears clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage. * It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not pre-determined victims.

* If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately.

Article 307 AIDING AND ABETTING A BAND OF BRIGANDS ELEMENTS: 1. That there is a band of brigands. 2. That the offender knows the band to be of brigands. 3. That the offender does any of the following acts: a. he in any manner aids, abets or protects such band of brigands, or b. he gives them information of the movements of the police or other peace officers of the government or c. He acquires or receives the property taken by such brigands. Notes: PD 532 – brigandage. > Seizure of any person for: (a) ransom; (b) extortion or other unlawful purpose; (c) taking away of property by violence or intimidation or force upon things or other unlawful means > Committed by any person > On any Phil hi-way

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Distinction between brigandage under the Revised Penal Code and highway robbery/brigandage under Presidential Decree No. 532: (1)

Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence. The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage.

(2)

Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway.

* Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code. * In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly. The Supreme Court pointed out that the purpose of brigandage “is, inter alia, indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim”. A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. * In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants. * Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.

THEFT Article 308 THEFT ELEMENTS: 1. That there be taking of personal property. 2. That said property belongs to another. 3. That the taking be done with intent to gain. 4. That the taking be done without the consent of the owner. 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. PERSONS LIABLE: 1. Those who a) with intent to gain

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Elements and Notes in Criminal Law Book II by RENE CALLANTA b) But without violence against or intimidation of persons nor force upon things c) take personal property of another d) without the latter’s consent

•

The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300)

2. Those who a) having found lost property b) fail to deliver the same to local authorities or its owner Notes: * Retention of money/property found is theft. Retention is failure to return (intent to gain) * The word “lost” is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475) * The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720) * Knowledge of owner is not required, knowledge of loss is enough * It is not necessary that the owner of the lost property be known to the accused. What is important is that he knows or has reason to know that the property was lost and for this fact alone, it is his duty to turn it over to the authorities. If he does otherwise, like, if he sells the thing to another, then the crime of theft is committed. * Finder in law is liable

Hidden Treasure Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. His duty is to tell the owner about the treasure. If he appropriates the other half pertaining to the owner of the property, he is liable for theft as to that share. (People vs. Longdew, C. A. G. R. No. 9380-R, June 4, 1953) 3. Those who a) after having maliciously damaged the property of another b) remove or make use of the fruits or object of the damage caused by them * Theft of damaged property occurs only after the accused has committed the crime of malicious mischief. In malicious mischief, the offender destroys the property of another because of hatred, resentment or other evil motive against the owner. So, a neighbor who shoots and kills a goat which has destroyed his flower plants and thereafter slaughters and eats the meat of the wandering goat is guilty of theft. 4. Those who a) enter an enclosed estate or a field where b) trespass is forbidden or which belongs to another and, without the consent of its owner c) hunts or fish upon the same or gather fruits, cereals or other forest or farm products

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Notes: Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could dispose of it at once (though no opportunity to dispose) i.e, the control test * In the crime of theft, the law makes only of the term “ taking” and not “taking away.” The non-inclusion of the word “away” is significant because it means that as soon as the culprit takes possession of the things taken by him, the crime of theft is already consummated since the law does not require that the thief be able to carry away the thing taken from the owner. (People vs. Jaranilla, 55 SCRA 563) * The consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing . The property need not be actually taken away by the thief. It is enough that he has obtained, at some particular moment, complete control and possession of the thing desired, adverse to the right of the lawful owner. (People vs. Naval, 46 O. G. 2641) P v. Dino – applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). Otherwise, P v. Espiritu – full possession is enough * Servant using car without permission deemed qualified theft though use was temporary Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner, therefore must exclude “joyride” Theft: if after custody (only material possession) of object was given to the accused, it is actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if juridical possession is transferred e.g., by contract of bailment

* Juridical possession of a thing is transferred to another when he receives the thing in trust or on commission or for administration, or under a quasi-contract or a contract of bailment. When possession by the offender is under any of these circumstances and he misappropriates the thing received, he cannot be held guilty of theft but of estafa because here, he has both the physical and juridical possession of the property. * Includes electricity and gas a. inspector misreads meter to earn b. one using a jumper

Personal Property Personal property in the crime of theft includes electric current or properties that may have no material or concrete appearance. The test is not whether the subject is corporeal or incorporeal but whether it is incapable of appropriation by another from the owner . Hence, checks, promissory notes, and any other commercial documents may be the object of theft because while they may not be of value to the accused, they are without doubt of value to the offended party. (U. S. vs. Raboy, 25 Phil. 1) In such a case, the penalty shall be based on the amount of money represented by the checks or promissory note since, while it may not of value to the thief, it is undoubtedly of value to the offended party. (People vs. Koc Song, 63 Phil. 369). * Selling share of co-partner is not theft

The personal property must belong to another. 1. A joint owner or partner who sells the palay to other persons or a co-owner or co-heir whp appropriates the whole property cannot be guilty of theft since the property cannot be said to belong to another. (U. S. Reyes, 6 Phil. 441)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. One who takes away the property pledged by him to another without the latter’s consent, does not commit theft for the simple reason that he is the owner of the thing taken by him. (L. B. Reyes) * Salary must be delivered first to employee; prior to this, taking of Php is theft * If offender claims property as his own (in good faith) – not theft (though later found to be untrue. If in bad faith – theft) * Gain is not just Php – satisfaction, use, pleasure desired, any benefit (e.g. joyride)

Gain means the acquisition of a thing useful for the purpose of life. It includes the benefit which in any other sense may be derived or expected from the act performed. * Actual gain is not necessary (intent to gain necessary) * Allege lack of consent in info is important

Consent as an element of the crime of theft must be in the concept of consent that is freely given and not one which is inferred from mere lack of opposition on the part of the owner. * Where the charge of theft under the first sentence of Article 308, the information must allege lack of consent. The allegation of “lack of consent” is indispensable under the first paragraph of Article 308 since the language or epigraph of the law expressly requires that the (unlawful) taking should be done without the consent of the owner. In view of the clear text of the law, an information which does not aver “lack of consent of the owner” would render the allegation insufficient and the information may be quashed for failure to allege an essential element of the crime. (Pua Yi Kun vs. People, G. R. No. 26256, June 26, 1968)

Robbery and theft distinguished. For robbery to exist, it is necessary that personal property be taken against the will of the owner; whereas in theft, it is sufficient that consent on the part of the owner is lacking.

Presumption: A person found in possession of a thing taken in the recent doing of a wrongful act is the taker of the thing and the doer of the whole act. * Possession is not limited to actual personal custody. One who deposits stolen property in a place where it cannot be found may be deemed to have such property in his possession.

ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED ESTATE (PAR. NO.3, ART. 308) 1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another; 2. That the offender enters the same. 3. That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products, and 4. That the hunting or fishing or gathering of products is without the consent of the owner. Note: Fish not in fishpond, otherwise, qualified Ortega Notes:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery. If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing. In People v. Judge de Guzman, it was held that fencing is not a continuing offense. Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, kept, or dealt with. The place where the theft or robbery was committed was inconsequential. Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established. The presumption does not offend the presumption of innocence in the fundamental law. This was the ruling in Pamintuan v. People, decided on July 11, 1994. Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling. When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price because of the presumption. Cattle Rustling and Qualified Theft of Large Cattle – The crime of cattle-rustling is defined and punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner. Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle-rustling. The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle. Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b). Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential Decree. Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling. It should only be an aggravating circumstance. But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada, February 13, 1991)

PENALTIES FOR QUALIFIED THEFT; (309) * The basis of the penalty is the value of the things stolen. * If the property has some value but is not proven with reasonable certainty, the minimum penalty shall be imposed under par. 6 of Art. 309 (People vs. Reyes, 58 Phil. 964). * When there is no evidence as to the value of the property stolen, the court is allowed to take judicial knowledge of the value of such property. (People vs. dela Cruz, 43 O. G. 3206) * When the resulting penalty for the accessory to the crime of theft has no medium period, the court can impose the penalty which is found favorable to the accused. (Cristobal vs. People, 84 Phil. 473).

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Article 310 QUALIFIED THEFT THEFT IS QUALIFIED WHEN: 1. Committed by domestic servant, or 2. With grave abuse of confidence, or 3. Property stolen is: a. motor vehicle b. mail matter c. large cattle d. coconut from plantation e. fish from fishpond or fishery, or 4. On occasion of calamities and civil disturbance. Notes: * When the theft is committed by a domestic servant, the offended party may either be the employer where the offender is working as a household help, or a third person as a guest in the house. The roomboy is a hotel is embraced within the term “domestic servant.” “GRAVE ABUSE” – high degree of confidence e.g. guests

* In the case of abuse of confidence, the latter must be “grave” in order to comply with the requirement of the law because abuse of confidence is not enough. There must be an allegation in the information that there is a relation between the accused and the offended party wherein the latter confided his security as to his person, life and property to the accused with such degree of confidence and that the accused abused the same. * Abuse of confidence is determined from the trust reposed by the offended party to the offender. It may also refer to the nature of the work of the offender which must necessarily involve trust and confidence. * Abuse of confidence is also an element of estafa. To avoid confusion between theft with abuse of confidence (qualified theft) and estafa with abuse of confidence, where the offender misappropriates a thing after he receives it from the victim, the student must remember that in qualified theft, only the physical or material possession of the thing is transferred. If the offender acquires the juridical as well as the physical possession of the thing and he misappropriates it, the crime committed is estafa. Juridical possession of the thing is acquired when one holds the thing in trust, or on commission, or for administration or under any other obligation involving the duty to deliver or to return the thing received. If the possession of the offender is not under any of these concepts, the crime is qualified theft. * no confidence, not qualified theft THEFT – material possession’ ESTAFA – juridical possession * Where only the material possession is transferred, conversion of the property gives rise to the crime of theft. Where both the material and juridical possession is transferred, misappropriation of the property would constitute estafa. When the material and juridical possession of the thing transfers ownership of the property to the possessor, any misappropriation made by the possessor will not result in the commission of any crime, either for theft of estafa. Qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers * novation theory applies only if there’s a relation

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * industrial partner is not liable for QT (estafa) * when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT * motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit system but under K of lease-estafa On carnapping and theft of motor vehicle

When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which uses the streets, with or without the required license, or any vehicle which is motorized using the streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123) * The taking with intent to gain of a motor vehicle belonging to another, without the latter’s consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.

* mail matter – private mail to be QT, Not postmaster – Art. 226 * theft of large cattle

Article 311 THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM USURPATION Article 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Acts punished: 1.

Taking possession of any real property belonging to another by means of violence against or intimidation of persons;

2.

Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.

ELEMENTS: 1. That the offender takes possession of any real property or usurps any real rights in property. 2. That the real property or real rights belong to another. 3. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation real rights in property. 4. That there is intent to gain.

* Since this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute Coercion. * Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. * Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * The possession of the land or real rights must be done by means of violence or intimidation. So, if the evidence of the prosecution shows that the accused entered the premises by means of strategy, stealth or methods other than the employment of violence, no crime was committed by the offender. (People vs. Alfeche, Jr., 211 SCRA 770) * Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender.

* There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. Hence, where threats are uttered to the owner of real property by one illegally occupying it, the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. (Castrodes vs. Cubelo, 83 SCRA 670) * The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only. On squatting According to the Urban Development and Housing Act, the following are squatters: 1.

Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway;

2.

Also the persons who were awarded lots but sold or lease them out;

3.

Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.

* Note that violation of Article 312 is punishable only with fine . So, if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights, the latter shall be punished separately for the crime of physical injuries. * Violence employed results to the death of the offended party. When such eventuality does occur, then the crime may rightfully be denominated as usurpation of real rights resulting to homicide, murder, parricide, or infanticide as the case may be.

Article 313 ALTERING BOUNDARIES OR LANDMARKS ELEMENTS: 1. That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. That the offender alters said boundary marks.

CULPABLE INSOLVENCY Article 314 FRAUDULENT INSOLVENCY (culpable insolvency) ELEMENTS 1. That the offender is a debtor; that is, he was obligations due and payable. 2. That he absconds with his property. 3. That there be prejudice to his creditors.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * To be liable for fraudulent insolvency, the disposal of the merchandise must be done with malice. The mere circumstance that a person has disposed of his merchandise by removing them from the place where they were kept would necessarily imply fraud. What is required is actual prejudice to the creditor. The intention of the accused alone is not enough. (People vs. Guzman, C. A. 40 O. G. 2655) * The law does not require the offender to be a merchant. The law says “any person,” and this refers to anyone who becomes a debtor and performs the acts made punishable by the law. * The property which the offender may abscond which consists of both real and personal property. (People vs. Chong Chuy Lingobo, 45 Phil. 372) * The law on fraudulent insolvency is different from the Insolvency Law. For the Insolvency Law to apply, the criminal act must have been committed after the institution of the insolvency proceedings against the offending debtor. But under the present article, there is no requirement that the accused should be adjudged bankrupt or insolvent.

SWINDLING AND OTHER DECEITS ESTAFA is embezzlement under common law. It is a well-known crime to lawyers and businessmen. It is a continuing crime unlike theft. Being a public crime, it can be prosecuted de officio.

Article 315 A. ELEMENTS OF ESTAFA IN GENERAL: (315) 1. That the accused defrauded another (a.) by abuse of confidence, or (b) or means of deceit and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person * The concept of damage under this article does not mean actual or real damage. It may consist in mere disturbance of the property rights of the offended party. However, the damage must be capable of pecuniary estimation. This requirement is important because in estafa, the penalty is dependent on the value of the property. * Since estafa is a material crime, it can be divided into consummated, attempted or frustrated stages. In the latter case, the damage can be in the form of temporary prejudice or suffering, or inconvenience capable of pecuniary estimation. B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315) 1. That the offender has an onerous obligation to deliver something of value. 2. That he alters its substance, quantity, or quality. 3. That damage or prejudice is caused to another. * The accused does not receive the goods but delivers a thing under an onerous obligation which is not in accordance with the substance, quantity or quality agreed upon. It is the altering of the substance, quality or quantity of the thing delivered which makes the offender liable for the crime of estafa. * The word “onerous” means that the offended party has fully complied with his obligations to pay. So, if the thing delivered whose substance was altered, is not yet fully or partially paid, then the crime of estafa is not committed. C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION

NO.1 PAR. (B), OF ART.315

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return, the same. 2. That there be misappropriation or conversion of such money or property by the offender, or dental on his part of such receipt. 3. that such misappropriation or conversion or dental is to the prejudice of another and 4. That there is a demand made by the offended party to the offender. (The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. [Tubb v. People, et al., 101 Phil. 114] ).

* It is necessary in this kind of estafa, for the money, goods or personal property to have been received by the offender in trust, or on commission or for administration. He must acquire both material or physical as well as juridical possession of the thing received. In these instances, the offender, who is the transferee, acquires a right over a thing which he may set up even against the owner. * A money market transaction however partakes of the nature of a loan, and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if there is allegation of fraud, the proper forum would be the Securities and Exchange Commission. (Sesbreno vs. Court of Appeals, et al., 240 SCRA 606). D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH

(B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING: 1. By misappropriating the thing received. 2. By converting the thing received. 3. By denying that the thing was received. Notes: Unfaithfulness or Abuse of Confidence a. by altering the substance b. existing obligation to deliver – even if it is not a subject of lawful commerce c. thing delivered has not been fully or partially paid for – not estafa c. no agreement as to quality – No estafa if delivery is unsatisfactory By misappropriating and converting a. thing is received by offender under transactions transferring juridical possession, not ownership

b. under PD 115 (Trust Receipts Law) – failure to turn over to the bank the proceeds of the sale of the goods covered by TR – Estafa c. same thing received must be returned otherwise estafa; sale on credit by agency when it was to be sold for cash – estafa d. Estafa – not affected by Novation of Contract because it is a public offense e. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors

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Elements and Notes in Criminal Law Book II by RENE CALLANTA f. Misappropriating – to take something for one’s own benefit g. Converting – act of using or disposing of another’s property as if it was one’s own; thing has been devoted for a purpose or use different from that agreed upon h.

There must be prejudice to another – not necessary that offender should obtain gain

* There is no estafa through negligence. There is likewise no estafa where the accused did not personally profit or gain from the misappropriation.

i. Partners – No estafa of money or property received for the partnership when the business is commercial and profits accrued. BUT if property is received for specific purpose and is misappropriated – estafa! j.

Failure to account after the DEMAND is circumstantial evidence of misappropriation

k. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof l.

In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him – otherwise, Estafa

m. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft •

When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa

ESTAFA WITH ABUSE OF CONFIDENCE

MALVERSATION

Offenders are entrusted with funds or property and are continuing offenses Funds: always private Offender: private individual, or public officer not accountable Committed by misappropriating, converting, denying having received money

offenders are entrusted with funds or property and are continuing offenses Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating, taking, misappropriating

E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315) 1. That the paper with the signature of the offended party be in blank. 2. That the offended party should have delivered it to offender. 3. That above the signature of the offended party a document is written by the offender without authority to do so. 4. That the document so written creates a liability of, or causes damage to, the offended party or any third person. * The element of this estafa is also abuse of confidence. The offended party leaves a blank paper with his signature to another, with specific instructions to make entries thereon according to the wishes of the offended party. But contrary to such instructions and wishes, the accused makes entries in writing which creates liabilities against the owner of the signature. * If the unauthorized writings were done by a person other than the one to whom the owner of the signature delivered the paper in blank, and it caused damage to the offended party, the crime committed by the third party is not estafa but falsification. Note: If the paper with signature in blank was stolen – Falsification if by making it appear that he participated in a transaction when in fact he did not so participate

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315) 1. that there must be a false pretense, fraudulent means must be made or executed prior to or 2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. 4. That as a result thereof, the offended party suffered damage. Notes: FALSE PRETENSES OR FRAUDULENT ACTS – executed prior to or simultaneously with delivery of the thing by the complainant * There must be evidence that the pretense of the accused that he possesses power/influence is false * The representation that accused possessed influence, to deceive and inveigle the complainant into parting with his money must however be false to constitute deceit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al., 265 SCRA 299). Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2) Acts punished under paragraph (a) 1.

Using fictitious name;

2.

Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or

3.

By means of other similar deceits.

* In the prosecution of estafa under Article 315, no. 2(a), it is indispensable that the element of deceit consisting in the false statement or fraudulent representation of the accused, be made prior to, before or at least simultaneously with the delivery of the thing by the offended party. The added requirement that such false statement or fraudulent representation constitutes the very motive or the only reason or cause which induces the offended party to part with the thing while they may be false representation after the delivery of the goods or the thing by the aggrieved party, such false statement or false representation, no matter how fraudulent and obnoxious it may appear, cannot serve as a basis for prosecution under this category of estafa. For the case to prosper against the accused, the prosecution must prove two indispensable elements: deceit and damage to another. (Celino vs. Court of Appeals, 163 SCRA 97) CREDIT means the ability to buy things or merchandise on the basis of one’s character, capacity to pay or goodwill in the business community. So, if it is used to deceive another and the deception is the principal reason for the delivery of the goods which results in damage to the offended party, the crime committed is estafa. Under paragraph (b) Altering the quality, fineness, or weight of anything pertaining to his art or business. Under paragraph (c) Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315) 1. That the offender postdated a check, or issued a check in payment of an obligation.

2. That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. Notes: Note that this only applies if – (1)

The obligation is not pre-existing;

(2)

The check is drawn to enter into an obligation; (Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.)

(3)

It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph

* The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. * The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation. * It must not be promissory notes, or guaranties.

* good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31) * dishonor for lack of funds - prima facie evidence of deceit or failure to make good within three days after notice of. * If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa. * Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.

* If check was issued in payment of pre-existing debt – no estafa * It is therefore essential that the check be issued in payment of a simultaneous obligation . The check in question must be utilized by the offender in order to defraud the offended party. So, if the check was issued in payment of a promissory note which had matured and the check was dishonored, there is not estafa since the accused did not obtain anything by means of said check. (People vs. Canlas, O. G. 1092)

* If a bouncing check is issued to pay a pre-existing obligation, the drawer is liable under B. P. Blg. 22 which does not make any distinction as to whether a bad check is issued in payment of an obligation or to guarantee an obligation. (Que vs. People, 73217-18, Sept. 21, 1987) * Offender must be able to obtain something from the offended party by means of the check he issues and delivers * The check must be issued in payment of an obligation . If the check was issued without any obligation or if there is lack of consideration and the check is subsequently dishonored, the crime of estafa is not committed. * If postdating a check issued as mere guarantee/promissory note – no estafa

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Elements and Notes in Criminal Law Book II by RENE CALLANTA H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1:

BP 22 1. That a person makes or draws and issues any check. 2. That the check is made or drawn and issued to apply on account or for value. 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. 4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF

SECTION 1: BP 22 1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.

2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon. 3. That the check is dishonored by the drawee bank. Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22: (1)

Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation. If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22.

(2)

Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.

(3)

In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial.

(4)

In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.

* When is there prima facie evidence of knowledge of insufficient funds? * There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored. Exceptions 1.

When the check was presented after 90 days from date;

2.

When the maker or drawer -a.

Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee;

b.

Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * The drawee must cause to be written or stamped in plain language the reason for the dishonor. * If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.

* If the drawer has valid reasons for stopping payment, he cannot be held criminally liable under B.P. Blg. 22. * The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check. On issuance of a bouncing check The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22. For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22. * The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.

* Each act of drawing and issuing a bouncing check constitutes a violation of B. P. Blg. 22. * In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made. * In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a promissory note, it is a check which have the word “memo,” “mem”, “memorandum” written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from depositing memorandum check in a bank. * Whatever be the agreement of the parties in respect of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the check bounces.

* Cross checks do not make them non-negotiable and therefore they are within the coverage of B. P. Blg. 22. * The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et al., 195 SCRA 722).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement. * The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawer’s funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation. * Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)

J. BY OBTAINING FOOD OR CREDIT AT HOTELS, INNS, RESTAURANTS ETC. Acts punished under paragraph (e) 1.

2.

3.

a.

Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house;

b.

Without paying therefor;

c.

With intent to defraud the proprietor or manager.

a.

Obtaining credit at any of the establishments;

b.

Using false pretense;

a.

Abandoning or surreptitiously removing any part of his baggage in the establishment;

b.

After obtaining credit, food, refreshment, accommodation;

c.

Without paying.

* Failure to pay food or accommodation in a hotel, restaurant or inn usually gives rise to civil liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel, or resorting to deceitful means to evade payment, the act shall be punished criminally as Estafa. K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS : (315) 1. That the offender induced the offended party to sign a document. 2. That deceit be employed to make him sign the document. 3. That the offended party personally signed the document. 4. That prejudice be caused. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document – falsification; but where the accused made representation to mislead the complainants as to the character of the documents - estafa Under paragraph (b) Resorting to some fraudulent practice to insure success in a gambling game;

L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING DOCUMENTS: (315) 1. That there be court records, office files, documents or any other papers.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. That the offender removed, concealed or destroyed any of them. 3. That the offender had intent to defraud another. * In order to commit a crime, the offender must have the intention to defraud. In other words, the removal, concealment or destruction of the court record should be done with the intent to defraud the victim. This is distinguished from the crime of removal, concealment or destruction of documents under Article 226 wherein fraud is not an element of the crime, and which is committed only by public officers. What is punished under this Article is the damage to public interest. * If the act of removing, concealing or destroying results from hatred, revenge, or other evil motive, the crime committed is malicious mischief under Article 327. Note: No intent to defraud – destroying or removal = malicious mischief When a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows the folder of the case, and removes or destroys a document which constitute evidence in the said case, said lawyer is guilty of Estafa under par. 3 (c) of Article 315, RPC.

SYNDICATED ESTAFA. A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act, transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks, cooperatives, samahang nayon or former’s association; or funds contributed by corporations or associations for the general welfare. M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION : (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. Disturbance in property right or 3. Temporary prejudice.

ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME: (316) N.

1. That the thing be immovable, such as a parcel of land or a building. 2. That the offender who is not the owner of said property represented that he is the owner thereof. 3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property). 4. That the act be made to the prejudice of the owner or a third person. ESTAFA Private individual was entrusted Intent to defraud

INFIDELITY IN THE CUSTODY OF DOCUMENTS Public officer entrusted No intent to defraud

O. ELEMENTS OF SWINDLING (PAR. 2) BY DISPOSING OF REAL PROPERTY AS

FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED: (316) Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. that the thing disposed of be real property. 2. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not. 3. That there must be express representation by the offender that the real property is free from encumbrance. 4. That the act of disposing of the real property be made to the damage of another. * In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon, is a misappropriation and conversion to the prejudice of the owner. Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another, resulting in the alteration of their condition or exclusion of the owner’s rights.

P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316) 1. That the offender is the owner of personal property. 2. That said personal property is in the lawful possession of another. 3. That the offender wrongfully takes it from its lawful possessor. 4. That prejudice is thereby caused to the possessor or third person.

Under paragraph 4 – by executing any fictitious contract to the prejudice of another Under paragraph 5 – by accepting any compensation for services not rendered or for labor not performed

Q. ELEMENTS OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR

ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY : (316) 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation with his real property or properties. 3. That he sells, mortgages, or, in any other manner encumbers said real property. 4. That such sale, mortage or encumbrance is (a) without express authority from the court, or (b) made before the cancellation of his bond, or (c) before being relieved from the obligation contracted by him.

R. ELEMENTS OF SWINDLING A MINOR: (317) 1. That the offender takes advantage of the inexperience or emotions or feelings of a minor. 2. That he induces such minor (a) to assume an obligation, or (b) to give release, or (c) to execute a transfer of any property right. 3. That the consideration is (a) some loan of money (b) credit or (c) other personal property. 4. That the transaction is to the detriment of such minor.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * The property referred to in this article is not real property. It is limited to personal property since a minor cannot convey real property without judicial intervention. So, if what is involved is real property, the crime of swindling a minor under this article is not committed even if the offender succeeds in inducing the minor to deal with such real property since no damage or detriment is caused against the minor. S. ELEMENTS OF OTHER DECEITS: (318) 1. not mentioned above; 2. interpretation of dreams, forecast, future-telling for profit or gain. * The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles. * Another form of deceit would be in the nature of interpreting dreams, or making forecasts, telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner, done for profit or gain.

CHATTEL MORTGAGE Article 319 A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED ELEMENTS: 1. That personal property is already pledged under the terms of the chattel mortgage law. 2. That the offender, who is the mortgagee of such property, sells or pledges the same or any part thereof. 3. That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY ELEMENTS: 1. that personal property is mortgaged under the chattel mortage law. 2. That the offender knows that such property is so mortaged. 3. That he removes such mortgaged personal to any province or city other than the one in which it was located at the time of the execution of the mortgage. 4. that the removal is permanent. 5. That there is no written consent of the mortgagee or his executors, administration or assigns to such removal. * It would be the mortgagor who is made liable if the personal property is transferred to the prohibited place. The liability extends to third persons who shall knowingly remove the mortgaged to another city or province. * If the chattel mortgage is not registered, there is no violation of Article 319

ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS (Note: PD 1613 expressly repealed or amended Arts 320-326, but PD 1744 revived Art 320)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA A. ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES 1. That an uninhabited hut, storehouse, barn, shed or any other property is burned 2. That the value of the property burned does not exceed 25 pesos 3. That the burning was done at a time or under circumstances which clearly exclude all danger of the fire spreading

B. ELEMENTS OF CRIME INVOLVING DESTRUCTION 1. That the offender causes destruction of the property 2. That the destruction was done by means of: a. explosion b. discharge of electric current c. inundation d. sinking or stranding of a vessel e. damaging the engine of the vessel f.

taking up rails from the railway track

g. destroying telegraph wires and posts or those of any other system h. other similar effective means of destruction

C. ELEMENTS OF BURNING ONE’S PROPERTY AS A MEANS TO COMMIT ARSON 1. That the offender set fire to or destroyed his own property 2. That the purpose of the offender in doing so was to commit arson or to cause a great destruction 3. That the property belonging to another was burned or destroyed

D. ELEMENTS OF ARSON 1. That the property burned is the exclusive property of the offender 2. That (a) the purpose of the offender is burning it is to defraud or cause damage to another or (b) prejudice is actually caused, or (c) the thing burned is a building in an inhabited place Palattao notes: Arson is defined as the intentional or malicious destruction of a property by fire. Legal effect if death results from arson. The crime committed is still arson. Death is absorbed in the crime of arson but the penalty to be imposed ranges from reclusion perpetua to death. (Sec. 5, P.D. No. 1613) How arson is established. Arson is established by proving the corpus delicti, usually in the form of circumstancial evidence such as the criminal agency, meaning the substance used, like gasoline, kerosene or other form of bustible materials which caused the fire. It can also be in the form of electrical wires,

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Elements and Notes in Criminal Law Book II by RENE CALLANTA mechanical, chemical or electronic contrivance designed to start a fire; ashes or traces of such objects which are found in the ruins of the burned premises. Notes:

* If the crime of arson was employed by the offender as a means to kill the offended party , the crime committed is murder. The burning of the property as the means to kill the victim is what is contemplated by the word “fire” under Article 248 which qualifies the crime to murder. (People vs. Villarosa, 54 O. G. 3482) * When the burning of the property was done by the offender only to cause damage but the arson resulted to death of a person, the crime committed is still arson because the death of the victim is a mere consequence and not the intention of the offender. (People vs. Paterno, 47 O. G. 4600) * There is no special complex crime of arson with homicide. What matters in resolving cases involving intentional arson is the criminal intent of the offender. * There is such a crime as reckless imprudence resulting in the commission of arson. When the arson results from reckless imprudence and it leads to death, serious physical injuries and damage to the property of another, the penalty to be imposed shall not be for the crime of arson under P. D. No. 1613 but rather, the penalty shall be based on Article 365 of the Revised Penal Code as a felony committed by means of culpa.

MALICIOUS MISCHIEF Article 326 MALICIOUS MISCHIEF ELEMENTS: 1. That the offender deliberately caused damage to the property of another. 2. That such act does not constitute arson or other crimes involving destruction. 3. That the act damaging another’s property be committed merely for the sake of damaging it. Notes: MALICIOUS MISCHIEF – willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive * No negligence Example. Killing the cow as revenge * If no malice – only civil liability Meaning of “damage” in malicious mischief. > It means not only loss but a diminution of the value of one’s property. It includes defacing, deforming or rendering it useless for the purpose for which it was made. * But after damaging the thing, he used it = theft * There is destruction of the property of another but there is no misappropriation. Otherwise, it would be theft if he gathers the effects of destruction.

* Damage is not incident of a crime (breaking windows in robbery)

Article 328 SPECIAL CASES OF MALICIOUS MISCHIEF Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. Obstruct performance of public functions. 2. Using poisonous or corrosive substances. 3. Spreading infection or contagious among cattle. 4. Damage to property of national museum or library, archive, registry, waterworks, road, promenade, or any other thing used in common by the public. * The cases of malicious mischief enumerated in this article are so-called qualified malicious mischief. The crime becomes qualified either because of the nature of the damage caused to obstruct a public; or because of the kind of substance used to cause the damage. The crime is still malicious mischief because the offender has no intent to gain but derives satisfaction from the act because of hate, revenge or other evil motive. Note: Qualified malicious mischief – no uprising or sedition (#1)

Article 329 OTHER MISCHIEF ELEMENTS: 1. Not included in 328 a. scattering human excrement b. killing of cow as an act of revenge * The offender is punished according to the value of the damage caused to the offended party. If the damages cannot be estimated, the minimum penalty is arresto menor or a fine of not more than 200 pesos shall be imposed on the offender.

Article 330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION done by damaging railways, telegraph, telephone lines, electric wires, traction cables, signal system of railways Notes: * removing rails from tracks is destruction (art 324) * not applicable when telegraph/phone lines don’t pertain to railways (example: for transmission of electric power/light) people killed as a result: a. murder – if derailment is means of intent to kill b. none – art 48 * If the damage was intended to cause derailment only without any intention to kill, it will be a crime involving destruction under Article 324. If the derailment is intentionally done to cause the death of a person, the crime committed will be murder under Article 248. * circumstance qualifying the offense if the damage shall result in any derailment of cars, collision or other accident – a higher penalty shall be imposed

Article 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS Article 332 Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Persons exempt from criminal liability 1.

Spouse, ascendants and descendants or relatives by affinity in the same line

2. The widowed spouse with respect to the property w/c belonged to the deceased spouse before the same passed into the possession of another 3.

Brothers and sisters and brothers-in-law and sisters-in-law, if living together

Offenses involved in the exemption 1. Theft ( not robbery ) 2.

Swindling

3.

Malicious mischief

Notes: * Exemption is based on family relations * For the exemption to apply insofar as brothers and sisters, and brothers-in-law and sisters-inlaw are concerned, they must be living together at the time of the commission of the crime of theft, estafa or malicious mischief. * Parties to the crime not related to the offended party still remains criminally liable Persons exempt include: a. stepfather/mother (ascendants by affinity) b. adopted children (descendants) c. concubine/paramour (spouse) d. common law spouse (property is part of their earnings) * Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief. Third parties who participate are not exempt. The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners. * Estafa should not be complexed with any other crime in order for exemption to operate.

TITLE ELEVEN CRIMES AGAINST CHASTITY Crimes against chastity 1. Adultery (Art. 333); 2. Concubinage (Art. 334); 3. Acts of lasciviousness (Art. 336); 4. Qualified seduction (Art. 337); 5. Simple seduction (Art. 338); 6. Acts of lasciviousness with the consent of the offended party (Art. 339); 7. Corruption of minors (Art. 340); 8. White slave trade (Art. 341); 9. Forcible abduction (Art. 342);

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

Consented abduction (Art. 343).

* The crimes of adultery, concubinage, seduction, abduction and acts of lasciviousness are the so-called private crimes. They cannot be prosecuted except upon the complaint initiated by the offended party. The law regards the privacy of the offended party here as more important than the disturbance to the order of society. For the law gives the offended party the preference whether to sue or not to sue. But the moment the offended party has initiated the criminal complaint, the public prosecutor will take over and continue with prosecution of the offender. That is why under Article 344, if the offended party pardons the offender, that pardon will only be valid if it comes before the prosecution starts. The moment the prosecution starts, the crime has already become public and it is beyond the offended party to pardon the offender.

Article 333 ADULTERY ELEMENTS: 1. That the woman is married (even if marriage subsequently declared void) 2. That she has sexual intercourse with a man not her husband. 3. That as regards the man with whom she has sexual intercourses, he must know her to be married. Notes: * There are two reasons why adultery is made punishable by law . Primarily, it is a violation of the marital vow and secondarily, it paves the way to the introduction of a spurious child into the family. * Adultery is a crime not only of the married woman but also of the man who had intercourse with a married woman knowing her to be married. Even if the man proves later on that he does not know the woman to be married, at the beginning, he must still be included in the complaint or information. This is so because whether he knows the woman to be married or not is a matter of defense and its up to him to ventilate that in formal investigations or a formal trial. * If after preliminary investigation, the public prosecutor is convinced that the man did not know that the woman is married, then he could simply file the case against the woman. * The acquittal of the woman does not necessarily result in the acquittal of her co-accused. In order to constitute adultery, there must be a joint physical act. Joint criminal intent is not necessary. Although the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may be complete. So, if the man had no knowledge that the woman was married, he would be innocent insofar as the crime of adultery is concerned but the woman would still be guilty; the former would have to be acquitted and the latter found guilty, although they were tried together. * A husband committing concubinage may be required to support his wife committing adultery under the rule in pari delicto. * For adultery to exist, there must be a marriage although it be subsequently annulled. There is no adultery, if the marriage is void from the beginning. * Adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery. Adultery is not a continuing crime unlike concubinage. Illustration: Madamme X is a married woman residing in Pasay City. He met a man, Y, at Roxas Boulevard. She agreed to go with to Baguio City, supposedly to come back the next day. When they were in Bulacan, they stayed in a motel, having sexual intercourse there. After that, they proceeded again and stopped at Dagupan City, where they went to a motel and had sexual intercourse. * There are two counts of adultery committed in this instance: one adultery in Bulacan, and another adultery in Dagupan City. Even if it involves the same man, each intercourse is a separate crime of adultery.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Mitigated if wife was abandoned without justification by the offended spouse (man is entitled to this mitigating circumstance)

* Abandonment without justification is not exempting but only a mitigating circumstance. One who invokes abandonment in the crime of adultery hypothetically admits criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil. 230) * While abandonment is peculiar only to the accused who is related to the offended party and must be considered only as to her or him as provided under Article 62, paragraph 3, nonetheless, judicially speaking, in the crime of adultery, there is only one act committed and consequently both accused are entitled to this mitigating circumstance. (People vs. Avelino, 40 O.G. Supp. 11, 194) Attempted: caught disrobing a lover * There is no frustrated adultery because of the nature of the offense.

* In the case of People vs. Pontio Guinucud, et al., (58 Phil. 621), a private agreement was entered into between the husband and wife for them to separate from bed and board and for each of them to go for his and her own separate way. Thereafter, the wife Rosario Tagayum lived with her co-accused Pontio Guinucud in a nearby barangay. Their love affair ultimately embroiled the spouses’ conservative and reputable families in a human drama exposed in legal battles and whispers of unwanted gossips. In dismissing the complaint, the Court ruled that while a private agreement between the husband and wife was null and void, the same was admissible proof of the express consent given by the condescending husband to the prodigal wife, a license for her to commit adultery. Such agreement bars the husband from instituting a criminal complaint for adultery. * After filing the complaint for adultery and while the case is pending trial and resolution by the trial court, the offended spouse must not have sexual intercourse with the adulterous wife since an act of intercourse subsequent to the adulterous conduct is considered as implied pardon . (People vs. Muguerza, et al., 13 C.A. Rep. 1079) * It is seldom the case that adultery is established by direct evidence. The legal tenet has been and still is “circumstancial and corroborative evidence as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will bring about conviction for the crime.” (U. S. vs. Feliciano, 36 Phil. 753)

Article 334 CONCUBINAGE ELEMENTS: 1. That the man must be married. 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling. b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA c. Cohabiting with her in any other place. 3. That as regards the woman she must know him to be married. Note: “Scandal” consists in any reprehensible word/deed that offends public conscience, redounds to the detriment of the feelings of honest persons and gives occasions to the neighbor’s spiritual damage and ruin * With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution. This is a crime committed by the married man, the husband. Similarly, it includes the woman who had a relationship with the married man. * It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows. The reason given for this is that when the wife commits adultery, there is a probability that she will bring a stranger into the family. If the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her. So even if the husband brings with him the child, it is clearly known that the child is a stranger. Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child. This is the reason why in the former crime the penalty is higher than the latter. * Unlike adultery, concubinage is a continuing crime.

* If the charges consist in keeping a mistress in the conjugal dwelling, there is no need for proof of sexual intercourse. The conjugal dwelling is the house of the spouse even if the wife happens to be temporarily absent therefrom. The woman however must be brought into the conjugal house by the accused husband as a concubine to fall under this article. Thus, if the co-accused was voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being a relative of the complaining wife, her illicit relations with the accused husband does not make her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G. 904). * It is only when a married man has sexual intercourse with a woman elsewhere that “scandalous circumstances” becomes an element of crime. * For the existence of the crime of concubinage by having sexual intercourse under scandalous circumstances, the latter must be imprudent and wanton as to offend modesty and sense of morality and decency. * When spies are employed to chronicle the activities of the accused and the evidence presented to prove scandalous circumstances are those taken by the detectives, it is obvious that the sexual intercourse done by the offenders was not under scandalous circumstances. (U.S. vs. Campos-Rueda, 35 Phil. 51)

* Causal sexual intercourse with a woman in a hotel is not concubinage. Likewise, keeping of a mistress in a townhouse procured and furnished by a married man who does not live or sleep with her in said townhouse does not constitute concubinage since there is no cohabitation. * The rule is that, if a married man’s conduct with a woman who is not his wife was not confined to occasional or transient interview for carnal intercourse but is carried n in the manner of husband and wife and for some period of time, then such association is sufficient to constitute cohabitation. (People vs. Zuniga, CA 57 O.G. 2497) * If the evidence of the prosecution consists of a marriage contract between the offender and the offended party, and the additional fact of the birth certificate of a child showing the accused to be the father of the child with the alleged cocubine, the same will not be sufficient to convict the accused of concubinage since the law clearly states that the act must be one of those provided by law.

Article 335. Rape This has been repealed by Republic Act No. 8353 or the Anti-Rape Law of 1997. See Article 266-A.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 336 ACTS OF LASCIVIOUSNESS ELEMENTS: 1. That the offender commits any act of lasciviousness or lewdness. 2. That it is done under any of the following circumstances: a. by using force or intimidation, or b. when the offended party is deprived of reason or otherwise unconscious, or c. when the offended party is under 12 years of age. 3. That the offended party is another person of either sex. Note that there are two kinds of acts of lasciviousness under the Revised Penal Code: (1) under Article 336, and (2) under Article 339. 1.

Article 336. Acts of Lasciviousness Under this article, the offended party may be a man or a woman. The crime committed, when the act performed with lewd design was perpetrated under circumstances which would have brought about the crime of rape if sexual intercourse was effected, is acts of lasciviousness under this article. This means that the offended party is either –

2.

(1)

under 12 years of age; or

(2)

being over 12 years of age, the lascivious acts were committed on him or her through violence or intimidation, or while the offender party was deprived of reason, or otherwise unconscious.

Article 339. Acts of Lasciviousness with the Consent of the Offended Party: Under this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled.

* Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a consequence thereof. * Intent to rape is not a necessary element of the crime of acts of lasciviousness. Otherwise, there would be no crime of attempted rape.

* In the crime of acts of lasciviousness, the intention of the wrongdoer is not very material. The motive that impelled the accused to commit the offense is of no importance because the essence of lewdness is in the act itself.

* What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The demarcation line is not always easy to determine but in order to sustain a conviction for acts of lasciviousness, it is essential that the acts complained of be prompted by lust or lewd designs and the victim did not consent to nor encouraged the act. * To be guilty of this crime however, the acts of lasciviousness must be committed under any of the circumstances that had there been sexual intercourse, the crime would have been Rape. Where circumstances however are such, indicating a clear intention to lie with the offended party, the crime committed as Attempted Rape. * This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviousness with Consent under Article 339. Thus, a lesbian who toyed with the private part of an eleven-year-old girl who enjoyed it since she was given $50 dollars before the act, is guilty of Act of Lasciviousness under this Article as the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA victim is below twelve year old; and had sexual intercourse been possible and done, the act would have been Rape.

SEDUCTION Article 337 QUALIFIED SEDUCTION OF A VIRGIN Two classes of qualified seduction: 1. Seduction of a virgin over 12 and under 18 years of age by certain persons, such as a person in authority, priest, teachers etc and 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age or reputation (incestuous seduction) Elements:

1.

That the offended party is a virgin, (presumed if she unmarried and of good reputation.)

2.That she must be over 12 and under 18 years of age. 3.That the offender has sexual intercourse with her.

4.

That there is abuse of authority, confidence or relationship on the part of the offender ( person entrusted with education or custody of victim; person in public authority, priest; servant) Persons liable: 1.

Those who abuse their authority: a. persons in public authority b. guardian c. teacher d. person who, in any capacity, is entrusted with the education or custody of the woman seduced

2.

Those who abused the confidence reposed in them: a. priest b. house servant c. domestic

3.

Those who abused their relationship: a. brother who seduced his sister b. ascendant who seduced his descendant

* This crime also involves sexual intercourse. The offended woman must be over 12 but below 18 years. * The distinction between qualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. It is enough that she is of good repute. * For purposes of qualified seduction, virginity does not mean physical virginity. offended party has not had any experience before.

It means that the

* The virginity referred to here, is not to be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of a good reputation. Thus, when the accused claims he had prior intercourse with the complainant, the latter is still to be considered a virgin (U.S. vs. Casten, 34 Phil. 808). But if it was established that the girl had a carnal relations with other men, there can be no crime of Seduction as she is not a virgin. * Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender – no matter how old she is or whether she is a prostitute – the crime of qualified seduction is committed. Illustration:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed. * In the case of a teacher, it is not necessary that the offended woman be his student. It is enough that she is enrolled in the same school. * Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent. Abuse of confidence here implies fraud.

* The fact that the offended party gave her consent to the sexual intercourse is not a defense. Lack of consent on the part of the complainant is not an element of the crime. * The term domestic refers to a person usually living under the same roof with the offended party. It includes all those persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. * A domestic should not be confused with a house servant. A domestic is not necessarily a house servant. * Where the offended party is below 12 years of age, regardless of whether the victim is a sister or a descendant of the offender, the crime committed is rape. * If the offended party is married and over 12 years of age, the crime committed will be adultery. * An essential element of a qualified seduction is virginity (doncella). It is a condition existing in a woman who has had no sexual intercourse with any man. It does not refer to the condition of the hymen as being intact. * One who is charged with qualified seduction can be convicted of rape. But one who is charged with rape cannot be convicted of qualified seduction under the same information. (People vs. Ramirez, 69 SCRA 144) * Even if the woman has already lost her virginity because of rape, in the eyes of the law, she remains a virtuous woman even if physically she is no longer a virgin.

Article 338 SIMPLE SEDUCTION ELEMENTS: 1. That the offended party is over 12 and under 18 years of age. 2. That she must be of good reputation, single or widow. 3. That the offender has sexual intercourse with her. 4. That it is committed by means of deceit.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * Deceit generally takes the form of unfulfilled promise to marry. The promise of marriage must serve as the inducement. The woman must yield on account of the promise of marriage or other forms of inducement. (People vs. Hernandez, 29 Phil. 109) * Where the accused failed to have sex with this sweetheart over twelve (12) but below eighteen (18) years old because the latter refused as they were not yet married, and the accused procured the performance of a fictitious marriage ceremony because of which the girlfriend yielded, he is guilty of Simple Seduction. (U.S. vs. Hernandez, 29 Phil. 109). Here, there was deceit employed. This act may now be considered Rape under R.A. 8353, Sec. 2 par. 6. * A promise of material things in exchange for the woman’s surrender of her virtue does not constitute deceit. * If a woman under 18 years of age but over 12 agrees to a sexual intercourse with a man who promised her precious jewelries but the man reneges on his promise, there is no seduction that the woman is of loose morals. (Luis B. Reyes)

Promise of marriage must precede sexual intercourse. > A promise of marriage made by the accused after sexual intercourse had taken place, or after the woman had yielded her body to the man by mutual consent will not render the man liable for simple seduction. * The offended woman must be under 18 but not less than 12 years old; otherwise, the crime is statutory rape. * Unlike in qualified seduction, virginity is not essential in this crime. What is required is that the woman be unmarried and of good reputation. Simple seduction is not synonymous with loss of virginity. If the woman is married, the crime will be adultery.

Article 339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ELEMENTS: 1. that the offender commits acts of lasciviousness or lewdness. 2. That the acts are committed upon a woman who is virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age. 3. that the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.

* When the acts of lasciviousness is committed with the use of force or intimidation or when the offended party is under 12 years of age, the object of the crime can either be a woman or a man. * Where the acts of the offender were limited to acts of lewdness or lasciviousness, and no carnal knowledge was had; but had there been sexual intercourse, the offense would have been Seduction, he is guilty of Acts of Lasciviousness under this article.

* The crime of acts of lasciviousness under Article 339 is one that is done with the consent of the offended party who is always a woman. The lewd acts committed against her is with her consent only because the offender took advantage of his authority, or there was abuse of confidence, or the employment of deceit, or the offender is related to the victim. * In the commission of the acts of lasciviousness either by force or intimidation, or with the consent of the offended party, there must be no sexual intercourse, or the acts performed are short of sexual intercourse. In the first situation, the crime would either be qualified seduction or simple seduction if the offender succeeds in having sexual intercourse with the victim. In these two cases, there is consent but the same is procured by the offender through the employment of deceit, abuse of confidence, abuse of authority or because of the existence of blood relationship.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Article 340 CORRUPTION OF MINORS Act punishable: By promoting or facilitating the prostitution or corruption of persons underage to satisfy the lust of another * It is not required that the offender be the guardian or custodian of the minor. * It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of promoting or facilitating the prostitution or corruption of said minor and that he acted in order to satisfy the lust of another.

* A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to constitute violation of this article. * What the law punishes is the act of pimp (bugaw) who facilitates the corruption of a minor. It is not the unchaste act of the minor which is being punished. So, a mere proposal to promote or facilitate the prostitution or corruption of a minor is sufficient to consummate the crime. * Young minor should enjoy a good reputation. Apparently, a prostitute above 12 and under 18 years of age cannot be the victim in the crime of corruption of minors.

Article 341 WHITE SLAVE TRADE Acts penalized: 1. Engaging in the business of prostitution 2. Profiting by prostitution 3. Enlisting the service of women for the purpose of prostitution * The person liable under Article 341 is the one who maintains or engages in the trade of prostitution. A white slave is a woman held unwillingly for purposes of commercial prostitution. A white slaver on the other hand is one engaged in white slave traffic, procurer of white slaves or prostitutes. * The most common way of committing this crime would be through the maintenance of a bar or saloon where women engage in prostitution. For each intercourse, the women pay the maintainer or owner of a certain amount in this case, the maintainer of owner of the bar or saloon is liable for white slave trade. (People vs. Go Lo, 56 O.G. 4056)

ABDUCTION Article 342 FORCIBLE ABDUCTION ELEMENTS: 1. That the person abducted is any woman, regardless of her age, civil status, or reputation. 2. That the abduction is against her will. 3. That the abduction is with lewd designs. Note: Sexual intercourse is NOT necessary

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Crimes against chastity where age and reputation of victim are immaterial: rape, acts of lasciviousness, qualified seduction of sister/descendant, forcible abduction Forcible abduction defined. > It is the taking away of any woman against her will, from her house or the place where she may be, for the purpose of carrying her to another place with intent to marry or corrupt her. * A woman is carried against her will or brought from one place to another against her will with lewd design.

* Unlike in Rape and Seduction, in the crime of Abduction, whether Forcible or Consented, there is no sexual intercourse. The acts are limited to taking away from a place the victim, but the same must be with lewd designs, that is, with unchaste design manifested by kissing and touching the victim’s private parts. * If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty.

* Where lewd design was not proved or shown, and the victim was deprived of her liberty, the crime is Kidnapping with Serious Illegal Detention under this Article 267, RPC. * The element of lewd designs, which is essential to the crime of abduction through violence refers to the intention to abuse the abducted woman. If such intention is lacking or does not exist, the crime may be illegal detention. It is necessary to establish the unchaste design or purpose of the offender. But it is sufficient that the intent to seduce the girl is present. The evil purpose of the offender may be established or inferred from the overt acts of the accused. * If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. * Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. In other words, where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore, the carrying of the woman is characterized with lewd design and would bring about the crime of abduction and not kidnapping. This is also true if the woman is deprived of reason and if the woman is mentally retardate. Forcible abduction is committed and not consented abduction. * Lewd designs may be demonstrated by the lascivious acts performed by the offender on her. Since this crime does not involve sexual intercourse, if the victim is subjected to this, then a crime of rape is further committed and a complex crime of forcible abduction with rape is committed.

* Lewd design does not include sexual intercourse. So, if sexual intercourse is committed against the offended party after her forcible abduction, the offender commits another crime separate and distinct from forcible abduction. In this case, the accused should be charged with forcible abduction with rape. (People vs. Jose, et al., 37 SCRA 450) * If the accused carried or took away the victim by means of force and with lewd design and thereafter raped her, the crime is Forcible Abduction with Rape, the former being a necessary means to commit the latter. The subsequent two (2) other sexual intercourse committed against the will of the complainant would be treated as independent separate crimes of Rape. (People vs. Bacalso, 210 SCRA 206).

* If the main object of the offender is to rape the victim , and the forcible abduction was resorted to by the accused in order to facilitate the commission of the rape, then the crime committed is only rape. (People vs. Toledo, 83 Phil. 777) * Where the victim was taken from one place to another, solely for the purpose of killing him and not detaining him for any legal length of time, the crime committed is murder. (People vs. Ong, 62 SCRA 174)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * True intention of the offender should be ascertained. If the detention is only incidental, the same should be considered as absorbed. Otherwise, it should be treated as a separate offense. When such a situation arises, we should consider the application of Article 48 on complex crimes. * The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. * The virginity of the complaining witness is not a determining factor in forcible abduction. * In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown. The intent to seduce a girl is sufficient. * If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion. Distinction between forcible abduction and illegal detention: When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. When the kidnapping is without lewd designs, the crime committed is illegal detention. > But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention.

* Forcible abduction must be distinguished from the crime of kidnapping. When the violent taking of a woman is motivated by lewd design, the crime committed is forcible abduction. But if the motive of the offender is to deprive the woman of her liberty, the crime committed is kidnapping. Abduction is a crime against chastity while kidnapping is a crime against personal liberty.

Article 343 CONSENTED ABDUCTION ELEMENTS: 1. That the offended party must be a virgin. 2. That she must be over 12 and under 18 years of age. 3. That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender. 4. That the taking away of the offended party must be with lewd designs. VIRGINITY may be presumed from the fact that the offended party is unmarried and has been leading moral life. Virginity or maidenhood should not be understood in such a matter of fact as to completely exclude a woman who has had previous sexual intercourse. If the previous sexual intercourse was the result of the crime of rape, the intercourse committed with her against he will and over her violent objection should not render her unchaste and a woman of bad reputation. * If the virgin in under 12 years old, the crime committed is forcible abduction because of the theory that a child below 12 years of age has no will of her own. * The purpose of the law on consented abduction is to punish the offender for causing disgrace and scandal to the family of the offended party. The law does not punish the offender for the wrong done to the woman since in the eyes of the law, she consented to her seduction. * The deceit which is termed by the law as solicitation or cajolery maybe in the form of honeyed promises of marriage. * In consented Abduction, it is not necessary that the young victim, (a virgin over twelve and under eighteen) be personally taken from her parent’s home by the accused; it is sufficient that he was

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Elements and Notes in Criminal Law Book II by RENE CALLANTA instrumental in her leaving the house. He must however use solicitation, cajolery or deceit, or honeyed promises of marriage to induce the girl to escape from her home. * In consented abduction, the taking away of the virgin must be with lewd design. Actual sexual intercourse with the woman is not necessary. However, if the same is established, then it will be considered as a strong evidence to prove lewd design. * Where several persons participated in the forcible abduction and these persons also raped the offended woman, the original ruling in the case of People v. Jose is that there would be one count of forcible abduction with rape and then each of them will answer for his own rape and the rape of the others minus the first rape which was complexed with the forcible abduction. This ruling is no longer the prevailing rule. The view adopted in cases of similar nature is to the effect that where more than one person has effected the forcible abduction with rape, all the rapes are just the consummation of the lewd design which characterizes the forcible abduction and, therefore, there should only be one forcible abduction with rape.

Article 344 PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION RAPE AND ACTS OF LASCIVIOUSNESS 1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed by: a. b. c. d.

offended party by her parents grandparents guardians in the order in which they are named above

* The crimes of adultery and concubinage must be prosecuted upon a complaint signed by the offended spouse. In the complaint, the offended party must include both guilty parties if they are both alive. * Distinguished between a private crime and a public crime. In the case of a private crime, the same cannot be prosecuted de oficio, meaning it cannot be initiated by any person except the offended party. These are the crimes against chastity such as seduction, adultery, concubinage and acts of lasciviousness. These are crimes which are initiated with the filing of an information. A public crime is one which can be prosecuted de officio, meaning it can be prosecuted by any person interested to prosecute the same. The accusation is usually initiated with the filling of an information. * The law requires that the complaint must be initiated by the said persons in order that they are named or enumerated in the article. If this legal requirement is not observed, the case should be dismissed for lack of jurisdiction over the subject matter. * If the offended party is of age and is in complete possession of her mental faculties, she alone can file the complaint (People vs. Mandia, 60 Phil. 372) * If the offended party cannot sign the complaint because of her tender age, the parents can do it for her. The same can be done either by the father or the mother. (U.S. vs. Gariboso, 25 Phil 171 ) * The word guardian as mentioned in the law refers to the guardian appointed by the court. (People vs. Formento, et al., 60 Phil. 434)

What is the meaning of “shall have consented” which bars the institution of criminal action for adultery or concubinage? The term “consent” has reference to the tie prior to the commission of the crime. In other words, the offended party gives his or her consent to the future infidelity of the offending spouse. > And so, while consent refers to the offense prior to its commission, pardon refers to the offense after its commission. (People vs. Schnekenburger, et al., 73 Phil. 413)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Note: Marriage of the offender with the offended party extinguishes the criminal action or remit the penalty already imposed upon him. This applies as well to the accomplices, accessoriesafter-the-fact. But marriages must be in good faith. This rule does not apply in case of multiple rape * In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by the offender with the offended woman generally extinguishes criminal liability, not only of the principal but also of the accomplice and accessory. However, the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage, he already left her, the marriage would appear as having been contracted only to avoid the punishment. Even with that marriage, the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability. * Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender. Therefore, that pardon must come before the prosecution is commenced. When the prosecution is already commenced or initiated, pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same.

* Pardon in crimes against chastity, is a bar to prosecution. But it must come before the institution of the criminal action. (See the cases of People vs. Villorente, 210 SCRA 647; People vs. Avila, 192 SCRA 635) To be effective, it must include both accused.

How about pardon declared by the offended party during the trial of the case? Such a declaration is not a ground for the dismissal of the case. Pardon is a matter of defense which the accused must plead and prove during the trial. (People vs. Riotes, C.A., 49 O.G.3403). * All these private crimes – except rape – cannot be prosecuted de officio. If any slander or written defamation is made out of any of these crimes, the complaint of the offended party is still necessary before such case for libel or oral defamation may proceed. It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party. The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone, because the indignity or dishonor brought about by these crimes affects more the offended party than social order. The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public.

Article 345 CIVIL LIABILITY OF PERSONS GUILTY OF RAPE, SEDUCTION OR ABDUCTION 1. To idemnify the offended women 2. To acknowledge the offspring, unless the law should prevent him from doing so 3. In every case to support the offspring * The civil liability of the adulterer and the concubine is limited to indemnity for damages caused to the offended spouse. The law does not mention the adulteress in the crime of adultery such that only the adulterer shall be held civilly liable. * There is likewise no mention of the offender in the crime of acts of lasciviousness, as being held liable for civil damages under Article 345, the law only mentioned the crimes of rape, seduction and abduction. * Under Article 2219 of the Civil Code, moral damages may be recovered in seduction, abduction, rape or other lascivious acts. The crimes of adultery and concubinage are also included. * In the crimes of rape, abduction and seduction, if the offended woman had given birth to the child, among the liabilities of the offender is to support the child. This obligation to support the child may be true even if there are several offenders. As to whether all of them will acknowledge the child, that is a different question because the obligation to support here is not founded on civil law but is the result of a criminal act or a form of punishment. * It has been held that where the woman was the victim of the said crime could not possibly conceive anymore, the trial court should not provide in its sentence that the accused, in case a child is born, should

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Elements and Notes in Criminal Law Book II by RENE CALLANTA support the child. This should only be proper when there is a probability that the offended woman could give birth to an offspring.

Article 346 LIABILITY OF ASCENDANTS, OTHER PERSONS ENTRUSTED WITH CUSTODY OF OFFENDED PARTY WHO BY ABUSE OF AUTHORITY OR CONFIDENCE SHALL COOPERATE AS ACCOMPLIES

TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS Crimes against the civil status of persons 1. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (art. 347); 2. Usurpation of civil status (Art. 348); 3. Bigamy (Art. 349); 4. Marriage contracted against provisions of law (Art. 350); 5. Premature marriages (Art. 351); 6. Performance of illegal marriage ceremony (Art. 352).

Article 347 SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD Acts Punished: 1. Simulation of births 2. Substitution of one child for another 3. Concealing or abandoning any legitimate child with the intent to cause such child to lose its civil status 1.

Requisites: The child must be legitimate

2.

The offender conceals or abandons such child

3.

The offender has the intent to cause the child to lose its civil status Elements of Simulation of Birth 1.Child is baptized or registered in the Registry of birth as hers 2.Child loses its real status and acquiires a new one 3.Actor’s purpose was to cause the loss of any trace as to the child’s true filiation

Simulation of birth takes place when a woman pretends to be pregnant when in fact she is not and on the day of the supposed delivery, she takes the child of another and declares the child to be her own. This is done by entering in the birth certificate of the child that the offender is the alleged mother of the child when in fact the child belongs to another. Illustration: People who have no child and who buy and adopt the child without going through legal adoption. If the child is being kidnapped and they knew that the kidnappers are not the real parents of their child, then simulation of birth is committed. If the parents are parties to the simulation by making it appear in the birth certificate that the parents who bought the child are the real parents, the crime is not falsification on the part of the parents and the real parents but simulation of birth.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Questions & Answers 1. A woman who has given birth to a child abandons the child in a certain place to free herself of the obligation and duty of rearing and caring for the child. What crime is committed by the woman? The crime committed is abandoning a minor under Article 276. 2. Suppose that the purpose of the woman is abandoning the child is to preserve the inheritance of her child by a former marriage, what then is the crime committed? The crime would fall under the second paragraph of Article 347. The purpose of the woman is to cause the child to lose its civil status so that it may not be able to share in the inheritance. 3. Suppose a child, one day after his birth, was taken to and left in the midst of a lonely forest, and he was found by a hunter who took him home. What crime was committed by the person who left it in the forest? It is attempted infanticide, as the act of the offender is an attempt against the life of the child. See US v. Capillo, et al., 30 Phil. 349.

Article 348 USURPATION OF CIVIL STATUS Committed by a person who represents himself as another and assumes the filiation or rights pertaining to such person Notes: * There must be criminal intent to enjoy the civil rights of another by the offender knowing he is not entitled thereto * The term "civil status" includes one's public station, or the rights, duties, capacities and incapacities which determine a person to a given class. It seems that the term "civil status" includes one's profession.

* Committed by asuming the filiation, or the parental or conjugal rights of another * Usurpation is committed by assuming the filiation or parental (when maternal, paternal or conjugal) claim of another. To be liable for usurpation of civil status, the offender must have the intent to enjoy the rights arising from the civil status of another. Circumstances qualifying the offense: penalty is heavier when the purpose of the impersonation is to defraud the offended party or his heirs

Article 349 BIGAMY ELEMENTS: 1.That the offender has been legally married. 2.That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the civil code. 3.That he contracts a second or subsequent marriage. 4.That the second or subsequent marriage has all the essential requisites for validity.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Notes: * The crime does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party PUBLIC CRIME •

For the crime of bigamy to prosper the first marriage must be valid. If the first marriage is void from the beginning, such nullity of the marriage is not a defense in a charge of bigamy. Consequently, when raised as a defense, the accused should be convicted since until and unless annulled, the bond of matrimony remains or is maintained.

•

Need for judicial declaration of nullity

•

The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage.

* A simulated marriage is not marriage at all and can be used as a defense for bigamy * Good faith is a defense in bigamy. * One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latter’s marriage is still valid and subsisting.

* In the crime of bigamy, the second spouse is not necessarily liable. The language of Article 349 indicates the crime of bigamy is committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. If the second wife knew of the previous marriage of the accused, she will be liable for the crime of bigamy but only as an accomplice. * There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage * Failure to exercise due diligence to ascertain the whereabouts of the 1st wife is bigamy through reckless imprudence * A judicial declaration of the nullity of a marriage void ab initio is now required * The language of the law is clear when it declared “before the former marriage has been legally dissolved.” The Supreme Court said the even if the accused, as plaintiff in the civil case prevails, and his first marriage is annulled, such pronouncement has no retroactive effect as to exculpate him in the bigamy case. Parties to a marriage should not be permitted to judge its nullity, for only competent courts have such authority. (Landicho vs. Relova, 22 SCRA 731, 735) * The civil case for annulment of the first marriage does not pose a prejudicial question as to warrant the suspension of the trial and proceeding in the criminal case for bigamy. (Roco, et al., Cinco, et al., 68 O.G.2952) * One convicted for bigamy may be prosecuted for concubinage as both are distinct offenses * One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.

* One who vouches that there is no legal impediment knowing that one of the parties is already married is an accomplice Distinction between bigamy and illegal marriage: Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same.

Article 350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ELEMENTS: 1. That the offender contracted marriage. 2. That he knew at the time that a. the requirement of the law were not complied with, or b. The marriage was in disregard of a legal impediment. Note: Circumstance qualifying the offense: if either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud The requirements of the law for a valid marriage are: 1. The legal capacity of the contracting parties; 2. Their consent freely given; 3. Authority of the person performing the marriage; and 4. Marriage license, except in marriage under exceptional circumstances. * The law further provides that for accused to be liable under this article, he should not be guilty of bigamy because otherwise, the crime punished under Article 350 is deemed absorbed in the bigamy. Marriages contracted against the provisions of laws 1. The marriage does not constitute bigamy. 2. The marriage is contracted knowing that the requirements of the law have not been complied with or in disregard of legal impediments. 3. One where the consent of the other was obtained by means of violence, intimidation or fraud. 4.

If the second marriage is void because the accused knowingly contracted it without complying with legal requirements as the marriage license, although he was previously married.

5. Marriage solemnized by a minister or priest who does not have the required authority to marriages.

solemnize

Article 351 PREMATURE MARRIAGE Acts punished: 1. A widow who within 301 days from death of husband, got married or before her delivery, if she was pregnant at the time of his death 2. A woman whose marriage having been dissolved or annulled, married before her delivery or within 301 days after the legal separation * The Supreme Court has already taken into account the reason why such marriage within 301 days is made criminal, that is, because of the probability that there might be a confusion regarding the paternity of

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Elements and Notes in Criminal Law Book II by RENE CALLANTA the child who would be born. If this reason does not exist because the former husband is impotent, or was shown to be sterile such that the woman has had no child with him, that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent.

* Article 84 of the Civil Code provides that no marriage license shall be issued to a widow until after 300 days following the death of her husband, unless in the meantime she has given birth to a child.

Article 352 PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY Act punished: performance of any illegal marriage ceremony by a priest or minister of any religious denomination or sect or by civil authorities

TITLE THIRTEEN CRIMES AGAINST HONOR Crimes against honor 1. Libel by means of writings or similar means (Art. 355); 2. Threatening to publish and offer to prevent such publication for a compensation (Art. 356); 3. Prohibited publication of acts referred to in the course of official proceedings (Art. 357); 4. Slander (Art. 358); 5. Slander by deed (Art. 359); 6. Incriminating innocent person (Art. 363); 7. Intriguing against honor (Art. 364).

Article 353 LIBEL ELEMENTS: 1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances. 2. That the imputation must be made publicly. 3. That it must be malicious. 4. That the imputation must be directed at a natural or juridical person, or one who is dead. 5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Notes: LIBEL is a public and malicious imputation of a crime, or a vice or defect, real or imaginary or any act, commission, condition, status or circumstances tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead Character of the words used to make it defamatory. Words calculated to induce suspicion are more effective in destroying reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearer to suppose and understand that the person against whom they are uttered is guilty of certain offenses, or are sufficient to

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Elements and Notes in Criminal Law Book II by RENE CALLANTA impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell, 37 Phil. 767) Malice has been defined as a term used to indicate the fact that the defamer is prompted by personal ill or spite and speaks not in response to duty but merely to injure the reputation of the person defamed. Kinds of Malice.

Malice in law – This is assumed and is inferred from the defamatory character of an imputation. The presumption of malice attaches to the defamatory statement especially if it appears to be insulting per se. The law presumes that the defamer made the imputation without good intention or justifiable motive. Malice in fact – This refers to malice as a fact. The presence and existence of personal ill-will or spite may still appear even if the statement is not defamatory. So, where the defamatory acts may be presumed from the publication of the defamatory acts imputed refer to the private life of the individual, malice may be presumed from the publication of the defamatory statement because no one has a right to invade another’s privacy. Distinction between malice in fact and malice in law Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory. It does not need proof. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. In the crime of libel, which includes oral defamation, there is no need for the prosecution to present evidence of malice. It is enough that the alleged defamatory or libelous statement be presented to the court verbatim. It is the court which will prove whether it is defamatory or not. If the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. Malice in fact becomes necessary only if the malice in law has been rebutted. Otherwise, there is no need to adduce evidence of malice in fact. So, while malice in law does not require evidence, malice in fact requires evidence. Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character. In law, however, the privileged character of a defamatory statement may be absolute or qualified. When the privileged character is said to be absolute, the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon. Illustration: As regards the statements made by Congressmen while they are deliberating or discussing in Congress, when the privileged character is qualified, proof of malice in fact will be admitted to take the place of malice in law. When the defamatory statement or utterance is qualifiedly privileged, the malice in law is negated. The utterance or statement would not be actionable because malice in law does not exist. Therefore, for the complainant to prosecute the accused for libel, oral defamation or slander, he has to prove that the accused was actuated with malice (malice in fact) in making the statement.

* Malice is presumed to exist in injurious publications * Where the imputation is based upon matters of public interest, the presumption of malice does not arise from the mere publication of the defamatory statement. A matter of public interest is common property. Malice in fact comes into play when the statement made is not defamatory per se, as when the offender resorts to underserved praises or satirical method of impeaching the virtue, honesty and reputation of the offended party. It can also appear in the form of innuendos. * This discussion leads to the conclusion that the determination of libelous meaning is left to the good judgment of the court after considering all the circumstances which lead to the utterance or publication of the defamatory statement. The question is not what the writer of an alleged libel means but what the words used by him mean. The meaning given by the writer or the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA words used by him is immaterial. The question is not what the writer meant but what he conveyed to those who heard or read him (People vs. Encarnacion, 204 SCRA 1) How to overcome the presumption of malice.

The presumption of malice is rebutted by showing : 1. that the accused published the defamatory imputation with good intention; 2. that there is justifiable motive for making it; 3. that the communication made is privileged; and 4. accused must prove the truth of the defamatory imputation in those cases wherein truth is a defense. PUBLICATION is the communication of the defamatory matter to some third person/s

Publication is the communication of the defamatory matter to a third person or persons. So, the delivery of a defamatory writing to a typesetter is sufficient publication. Writing a letter to another person other than the person defamed is sufficient publication. (See Sazon vs. Court of Appeals, 255 SCRA 692) > The crime is libel if the defamation is in writing or printed media. > The crime is slander or oral defamation if it is not printed.

* Person libeled must be identified. But the publication need not refer by name to the libeled party. If not named it must be shown that the description of the person referred to in the defamatory publication was sufficiently clear so that at least a 3rd person would have identified the plaintiff. * When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement, there will only be one count of libel. * If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many libels as there are persons dishonored. Illustration: If a person uttered that “All the Marcoses are thieves," there will only be one libel because these particular Marcoses regarded as thieves are not specifically identified. If the offender said, “All the Marcoses – the father, mother and daughter are thieves.” There will be three counts of libel because each person libeled is distinctly dishonored. * If you do not know the particular persons libeled, you cannot consider one libel as giving rise to several counts of libel. In order that one defamatory utterance or imputation may be considered as having dishonored more than one person, those persons dishonored must be identified. Otherwise, there will only be one count of libel. * Note that in libel, the person defamed need not be expressly identified. It is enough that he could possibly be identified because “innuendos may also be a basis for prosecution for libel. As a matter of fact, even a compliment which is undeserved, has been held to be libelous.

* To presume publication there must be a reasonable probability that the alleged a libelous matter was thereby exposed to be read or seen by 3rd persons. Republication of defamatory article is punishable. One is liable for publication of defamatory words against another although he is only repeating what he heard and names the source of his information. A person who repeats a slander or libelous publication heard or read from another is presumed to indorse it. (People vs. Salumbides and Reanzares, C.A., 55 O.G. 2638)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Criterion to determine whether statements are defamatory 1) words are calculated to induce the hearers to suppose and understand that the person against who they are uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue or reputation, or to hold the person up to public ridicule(US v O’Connel) 2 )construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer.(P v Encarnacion) * The test of libelous meanings is not the analysis of a sentence into component phrases with the meticulous care of the grammarian or stylist, but the import conveyed by the entirety of the language to the ordinary reader. (Lacsa vs. FAC, et al., 161 SCRA 427). * In libel cases, the question is not what the offender means but what the words used by him mean. ( Sazon vs. CA, 255 SCRA 692) Praises undeserved are slander in disguise. Where the comments are worded in praise of the plaintiff, like describing him with qualities which plaintiff does not deserve because of his social, political and economic status in the community which is too well known to all concerned, are which intended are intended to ridicule rather than praise him, the publication is deemed libelous (Jimenez vs. Reyes, 27 SCRA 52) * Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end. Poof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. Other than these, the imputation is not admissible. When proof of truth is admissible 1.

When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer;

2.

When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if its related to the discharged of his official duties.

Requisites of defense in defamation 1.

If it appears that the matter charged as libelous is true;

2.

It was published with good motives;

3.

It was for justifiable ends.

If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended party is necessary.

Libel -false accusation need not be made under oath

Perjury -false accusation is made under oath

Newsweek v IAC Newsweek portrayed the island province of Negros Occidental as a place dominated by big landowners. Plaintiffs are associations of sugarcane planters. HELD: Dismissed. To maintain a libel suit, the specific victim must be identifiable. Defamatory remarks directed at a group of persons are not actionable unless the statements are all-embracing or sufficiently specific for victim to be identifiable. An action for libel allegedly directed against a group of sugar planters cannot be done by resort to filing a class suit as each victim has his specific reputation to protect. In this case, each of the plaintiffs has a separate and distinct reputation in the community. Rule regarding Public Officers:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their official duties will not constitute libel if the accused proves the truth of the imputation. But any attack upon the private character of the public officers on matters which are not related to the discharge of their official functions may constitute Libel. * Where malice cannot be inferred from false defamatory statements, the ruling appears to be the true only if the offended party is a government employee, with respect to facts related to the discharge of his official duties. With his jurisprudence, it should now be emphasized that ‘actual malice” is now required to be proven. It is enough to rely on presumed malice in libel cases involving a public official or public figure.

* Malice is now understood to mean publication with knowledge of falsehood or reckless disregard of the statement’s veracity. The burden of proof has not only been shifted to the plaintiff in libel, but proof has not only been shifted to the plaintiff in libel, but proof of malice must now be clear and convincing. Case Doctrines: * The fact that a communication is privileged is not a proper ground for the dismissal of a complaint for libel. In the first place, it is a matter of defense. Secondly, the fact that a communication is privileged does not mean that it is not actionable. The privileged character simply does away with the presumption of malice which the prosecution has to prove in such a case. (Lu Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil. 669) * Libel in answer to another libel is not a defense. (Pellicena vs. Gonzales, 6 Phil. 50) * If the defamatory imputation is in the nature of self-defense under Article 11 of the Revised Penal Code such that the publication was done in good faith, without malice and just adequate enough to protect his good name, the statement may be considered privileged. (People vs. Baja, 40 O.G. 206; People vs. Mendoza, C.A. 74 O.G. 5607) * The fair and true report of official proceedings refer to proceedings in the three branches of government, to wit: judicial, legislative and executive. The publisher is limited only to the narration of what had taken place even if the report contains defamatory and injurious matter affecting another person, libel is not committed for as long as what is contained is a fair and true report of the proceedings. * Under Article 354, the publisher becomes liable when he makes comments or remarks upon the private character of person, which are not relevant or related to the judicial, legislative or executive proceedings. * Under our libel law, defamatory remarks against government employees with respect to facts related to the discharge of their official duties will not constitute libel, if defendant is able to prove the truth of the imputations. But any attack on the private character of the officer on matters which are not related to the discharge of his official functions may constitute libel since under our laws, the right of the press to criticize public officers does not authorize defamation. (U.S. vs. Bustos, supra; Sazon vs. Court of Appeals, supra).

Article354 REQUIREMENT OF PUBLICITY Kinds of privileged communication

a. ABSOLUTELY PRIVILEGED – not actionable even if the actor has acted in bad faith b. QUALIFIEDLY PRIVILEGED – those which although containing defamatory imputations could not be actionable unless made with malice or bad faith

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Elements and Notes in Criminal Law Book II by RENE CALLANTA * When the defamatory imputation comes under the criteria of an absolute privileged communication, the presumption of malice under Article 354 has no application. * The presumption of malice, however, comes into play when the defamatory statement is a conditional or qualified privileged communication. To overcome this presumption of malice in law, the defamer must prove during the proceeding that the defamatory imputation was committed because of a legal, moral or social duty. * Privileged communication as categorized in this discussion is a matter of defense. It is not a ground for a motion to quash after the arraignment of the accused. (See Mercado vs. CFI of Rizal, 116 SCRA 93). If after the prosecution has presented its evidence, it becomes evident that the defamatory statement was made by the accused because of a legal, moral or social duty, then the accused can file a demurrer to evidence, as in the meantime, there is absence of malice in law which is presumed in all defamatory imputations. GENERAL RULE: Every defamatory imputation is presumed malicious even if it be true, if no good intention and justifiable motive for making it is shown EXCEPTION: a. private communication in performance of legal, moral or social duty Requisites 1. that the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld 2. that the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter 3. that the statements in the communication are made in good faith without malice in fact b. fair and true report, made in good faith, without any comments and remarks Requisites 1. that the publication of a report of an official proceeding is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer 2.

that it is made in good faith

3.

that it is made without any comments or remarks

Doctrine of fair comment “A fair comment on matters of public interest is included and is covered by the mantle of privileged communication which constitutes a valid defense against libel and slander.” “If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might be reasonably inferred from the facts.” Further explaining the right to comment on a public issue, the Court said, “If a matter is a subject of public or general interest, it cannot become less so merely because a private individual is involved. The public primary interest is in the event; the public focus is on the conduct of the participants and not on their prior anonymity or notoriety. ( Borjal vs. CA, 301 SCRA 1 ) Santos v CA HELD: No malice, he simply furnished the readers with the info that a complaint has been filed against the brokerage firm and reproduced the pleading verbatim with no embellishments.

Article 355 LIBEL BY MEANS OF WRITING OR SIMILAR MEANS

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Elements and Notes in Criminal Law Book II by RENE CALLANTA A libel may be committed by means of – 1.

Writing;

2.

Printing;

3.

Lithography;

4.

Engraving;

5.

Radio;

6.

Photograph;

7.

Painting;

8.

Theatrical exhibition;

9.

Cinematographic exhibition; or

10.

Any similar means.

* In the enumeration above, television is not included, probably because at the time the Revised Penal Code was conceived, television had not yet been invented. However, the law provides, “or any similar means” which easily qualifies television is such species or category. (People vs. Casten, C.A., G.R. No. 07924-CR promulgated December 13, 1974)

Article 356 THREATENING TO PUBLISH LIBEL PUBLICATION FOR A COMPENSATION

AND

OFFER

TO

PREVENT

SUCH

Acts punished 1.

Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family;

2.

Offering to prevent the publication of such libel for compensation or money consideration.

* It involves the unlawful extortion of money by appealing to the fear of the victim, through threats of accusation or exposure. It contemplates of two offenses: a threat to establish a libel and an offer to prevent such publication. The gravamen of the crime is the intent to extort money or other things of value. Blackmail – In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime – hush money. (US v. Eguia, et al., 38 Phil. 857) Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356.

Article 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS ELEMENTS: 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine. 2. That he publishes facts connected with the private life of another. 3. That such facts are offensive to the honor, virtue and reputation of said person.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Note: * Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. * With its provisions, Article 357 has come to be known as the “ Gag Law.” It prohibits reporters, editors or managers of newspapers from publishing articles containing facts connected with the private life of an individual; facts which are offensive to the honor, virtue and reputation of persons. But these must refer to facts which are intimately related to the offended party’s family and home. Occasionally, it involves conjugal troubles and quarrels because of infidelity, adultery or crimes involving chastity. Lacsa v IAC Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be president. He wrote to the BOD and to Marquez. He caused to publish the second letter. HELD: Letter is not privileged communication. To be classified as such it must be free from malice. Granting that the letter was privileged communication, written out of a duty of an officer towards the members, such character was lost when it was published. * Under Republic Act No. 1477 , amending Rep. Act. No. 58, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report information appearing in the said publication which was related to him in confidence unless the court or a house or committee of Congress finds that such revelation is demanded by the security of the State.

Article 358 ORAL DEFAMATION / SLANDER Two Kinds of Oral Defamation:

1. action of a serious and insulting nature (Grave slander) 2. light insult or defamation – not serious in nature (simple slander) Factors that determine gravity of the offense: a) expressions used b) personal relations of the accused and the offended party c) circumstances surrounding the case Notes: * The gravity of oral defamation depends not only on the expressions but also on the personal relation of the accused with the offended party. Other circumstances like the presence of important people when the crime was committed, the social standing and position of the offended party are factors which may influence the gravity and defamatory imputation (Victorio vs. Court of Appeals, 173 SCRA 645). * Note that slander can be committed even if the defamatory remark was done in the absence of the offended party. (People vs. Clarin, C.A., 37 O.G. 1106) * Words uttered in the heat of anger constitute light oral defamation (P v Doronilla) * If the utterances were made publicly and were heard by many people and the accused at the same time levelled his finger at the complainant, oral defamation is committed (P v Salleque) * The word “ puta ” does not impute that the complainant is prostitute. (People vs.

Atienza, G.R. No. L-19857, Oct. 26, 1968 ) It is a common expression of anger or displeasure. It is seldom taken in its literal sense by the hearer. It is viewed more as a Sigma Rho ( ΣΡ ) reviewers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA threat on the part of the accused to manifest and emphasize a point. (Reyes vs. People, 27 SCRA 686) Article 359 SLANDER BY DEED ELEMENTS: 1. That the offender performs any act not included in any other crime against honor. 2. That such act is performed in the presence of other person or persons. 3. That such act casts dishonor, discredit or contempt upon the offended party. Notes: Slander by deed is a defamation committed by the offender against the complainant through the performance of any act which casts dishonor, discredit or contempt upon another person. * Slander by deed refers to performance of an act, not use of words. Two kinds of slander by deed 1.

Simple slander by deed; and

2.

Grave slander by deed, that is, which is of a serious nature.

* Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.

* The acts of slapping and boxing the woman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. (P v Costa) * If the acts committed against the offended party caused her physical injury which did not require medical attendance, then the crime would be maltreatment which is classified as slight physical injuries. P v Motita > Accused held a mirror between the legs of complainant to reflect her private parts. The crowd laughed. Guilty of slander by deed. Distinctions: a. Unjust Vexation-irritation or annoyance/anything that annoys or irritates without justification. b. Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt. c. Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in Art335 of RPC on rape i. use of force or intimidation ii. deprivation of reason or rendering the offended unconscious iii. offended party under 12 yrs of age+lewd designs

Article 360 PERSONS RESPONSIBLE FOR LIBEL Who are liable: a. person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means(par.1)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA b. author or editor of a book or pamphlet c. editor or business manager of a daily newspaper magazine or serial publication(par.2) d. owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication (US v Ortiz) * A defamatory statement by itself is not a crime. It is the undue publication of the defamatory imputation which makes it a crime. It is therefore in this concept that proprietors and editors of periodicals are also made responsible for the appearance of defamatory matters in any newspaper under their management. Venue of criminal and civil action for damages in cases of written defamation: a. where the libelous article is printed and 1st published OR b. where any of the offended parties actually resides at the time of the commission of the offense * Libel cases are within the original and exclusive jurisdiction of the Regional Trial Courts. Inferior courts have no jurisdiction to try written defamation. (People vs. Hechanova, 54 SCRA 101) Where one of the offended parties is a public officer: a. if his office is in the City of Manila - RTC of Manila OR - city/province where the article is printed and 1st published b. Otherwise - RTC of the city/province where he held office at the time of offense OR - where the article is 1st published Where one of the offended parties is a private individual: - RTC of province/city where he actually resides at the time of the crime - where article was printed or 1st published * In order to prevent controversies as to the venue of criminal actions for written defamation, the information or complaint must contain averments as to whether the offended party is a private or public officer at the time of the commission of the offense and whenever possible, the place where the written defamation was printed and first published. (Agbayani, et al., vs. Hon. Sayo, et al., L-47880, April 30, 1979) Note: Offended party must file complaint for defamation imputing a crime which cannot be prosecuted de oficio (e.g. adultery, concubinage, rape, seduction, abduction, and acts of lasciviousness) * Under the last paragraph of Article 360, only defamation consisting of the imputation of private offenses such as adultery, concubinage, seduction, abduction and acts of lasciviousness shall be prosecuted by the offended party by filing a complaint. Outside of this enumeration by law, the crime is considered a public crime which may be prosecuted de oficio. Soriano v IAC > The Philippines follows the multiple publication rule which means that every time the same written matter is communicated, such communication is considered a distinct and separate publication of libel. * Where the publication is libelous per se, actual damages need not be established. This is so because libel, by its very nature, causes dishonor, disrepute and discredit and injury to the reputation of the offended party. It is something inherent and natural in the crime of libel. (Lu Chu Sing vs. Lu Tiong Gui, 76 Phil. 669)

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 361 PROOF OF THE TRUTH Admissible when: a. the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer b. the offended party is a government employee, even if the act or omission imputed does not constitute a crime provided it is related to the discharge of his official duties Requisites for Acquittal: a. it appears that the matter charged as libelous is TRUE (for situations 1 and 2 above) b. it was published with good motives and for a justifiable end (for situation 1 only) Notes: The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion. It must rest upon positive direct evidence, upon which a definite finding may be made by the court (US v Sotto) * Admission on the part of the accused that he committed a mistake will not serve to free him from criminal liability. But it may serve to mitigate the penalty imposed on him or lessen his civil liability. ( Phee vs. La Vanguardia, 45 Phil 211 )

Article 362 LIBELOUS REMARKS Libelous remarks or comments on privileged matters (under Art. 354) if made with malice in fact will not exempt the author and editor. * This article is a limitation to the defense of privileged communication. * The main thrust of the law is to punish libelous remarks or comments on matters which are privileged, if made with malice in fact. So, a newspaper reporter who distorts facts connected with official proceedings or who adds comments thereon as to cast aspersion on the character of the parties involved, is guilty of libel even through the defamatory matter is published in connection with a privileged communication. (Dorr vs. U. S., 11 Phil. 706)

INCRIMINATORY MACHINATIONS Article363 INCRIMINATING INNOCENT PERSON ELEMENTS: 1.That the offender performs an act. 2.That by such act he directly incriminates or imputes to an innocent person the commission of a crime. 3.That such act does not constitute perjury.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA Two Kinds: a. making a statement which is b i. defamatory or ii. perjurious (if made under oath and is false) b. planting evidence Note: article is limited to planting evidence and the like * This crime cannot be committed through verbal incriminatory statements. It is defined as an act and, therefore, to commit this crime, more than a mere utterance is required.

* If the incriminating machination is made orally, the crime may be slander or oral defamation. * If the incriminatory machination was made in writing and under oath, the crime may be perjury if there is a willful falsity of the statements made.

* If the statement in writing is not under oath, the crime may be falsification if the crime is a material matter made in a written statement which is required by law to have been rendered.

* As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence.

* There is such a crime as incriminating an innocent person through unlawful arrest. (People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966)

Article 364 INTRIGUING AGAINST HONOR How committed: -by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person Notes: * The crime is committed by resorting to any form of scheme or plot designed to blemish the reputation of a person. The offender does not employ written or spoken words, pictures or caricatures to ridicule the victim. Rather, he uses some ingenious, crafty and secret ploy which produces the same effect. * Intriguing against honor is referred to as gossiping. The offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party. Who started the defamatory news is unknown. * Where the source of polluted information can be traced and pinpointed, and the accused adopted as his own the information he obtained, and passed it to another in order to cause dishonor to the complainant’s reputation, the act is Slander and not Intriguing Against Honor. But where the source or the author of the derogatory information can not be determined and the accused borrows the same, and without subscribing to the truth thereof, passes it to others, the act is one of Intriguing Against Honor. * Committed by saying to others an unattributable thing, if said to the person himself it is slander. Distinction between intriguing against honor and slander: When the source of the defamatory utterance is unknown and the offender simply repeats or passes the same, the crime is intriguing against honor. If the offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof, even though he repeats the libelous statement as coming from another, as long as the source is identified, the crime committed by that offender is slander. Distinction between intriguing against honor and incriminating an innocent person:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA In intriguing against honor, the offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person. In incriminating an innocent person, the offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime.

RA4200 The Anti - Wire Tapping Act Acts punished: 1) any person, not authorized by all the parties to any private communication or spoken word a) taps any wire of cable OR b) uses any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie talkie or tape recorder 2) any person, whether or not a participant in the above-mentioned acts: a) knowingly possesses any tape record, wire record, disc record, or any other such record or copies thereof of any communication or spoken word b) replays the same for any other person c)communicates the contents thereof, whether complete or partial, to any other person Notes: * Peace officer is exempt if acts done under lawful order of the court. You can only use the recording for the case for which it was validly requested. * Information obtained in violation of the Act is inadmissible in evidence in any hearing or investigation. Gaanan v IAC > An extension phone is not one of those prohibited under RA 4200. There must be either a physical interruption through the wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record the spoken words. The extension phone was not installed for such purpose.

CRIMINAL NEGLIGENCE Article 365 ELEMENTS OF RECKLESS IMPRUDENCE: 1. That the offender does or fails to do an act. 2. That the doing of or the failure to do that act is voluntary. 3. That it be without malice. 4. That material damage results.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 5. That there is inexcusable lack of precaution on the part of the offender, taking into consideration a. his employment or occupation b. degree of intelligence, physical condition, and c. other circumstances regarding persons, time and place.

ELEMENTS OF SIMPLE IMPRUDENCE: 1. That there is lack of precaution on the part of the offender. 2. That the damage impending to be caused in not immediate or the danger is not clearly manifest. Quasi-offenses punished 1.

Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony;

2.

Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony;

3.

Causing damage to the property of another through reckless imprudence or simple imprudence or negligence;

4.

Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.

Distinction between reckless imprudence and negligence: The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be simple.

* There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability. It is practically settled that criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa.

Notes: Test for determining whether or not a person is negligent of doing of an act which results in injury or damages to another person or his property.

Would a prudent man in the position of the person to whom negligence is attributed, foresee harm to the person injured? If so, the law imposes on the doer, the duty to refrain from the course of action, or to take precaution against such result. Failure to do so constitutes negligence. Reasonable foresight of harm, followed by ignoring the admonition borne of this provisions, is the constitutive fact of negligence. (Picart vs. Smith, 37 Phil. 809, 813)

Test of Negligence.

Did the defendant, in doing the alleged negligent act, use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, then he is guilty of negligence. The penalties under Article 365 has no application in the following cases: 1. When the penalty provided for the offense ifs equal or lower than that provided in pars.1 and 2 of Article 365. In this case, the penalty shall be that which is next lower in degree than that which should be imposed, in the period which the court may deem proper to apply.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. When by imprudence or negligence and with violation of the Automobile Law, the death of a person is caused, the penalty is prision correccional in its medium and maximum periods. 1) Art.64 on mitigating and aggravating circumstances not applicable. 2) Failure to lend on the spot assistance to victim of his negligence: penalty next higher in degree. 3) Abandoning usually punishable under Art 275, if charged under Art 365 is only qualifying and if not alleged cannot even be an aggravating circumstance. 4) Contributory negligence—not a defense, only mitigating * The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence. It is against public policy to invoke the negligence of another to escape criminal liability. (People vs. Quiñones, C.A., 44 O.G. 1520) * The above-mentioned doctrine should be reconciled with the doctrine of “ concurrent proximate cause of two negligent drivers.” * In the case of People vs. Desalis, et al., C.A., 57 O.G. 8689, the two accused were drivers of two speeding vehicles which overtook vehicles ahead of them and even encroached on the other’s lane without taking due precaution as required by the circumstances. The court found the concurrent or successive negligent act or omission of the two drivers as the direct and proximate cause of the injury caused to the offended party. The court could not determine in what proportion each driver contributed to the injury. Both were declared guilty for the injury suffered by the third person. * When negligence does not result in any injury to persons or damage to property, then no crime is committed. Negligence becomes punishable when it results in the commission of a crime. (Lantok, Jr. vs. Hon. Gorgonio, L-37396, April 30, 1979, 75 O.G. 7763) Last clear chance doctrine> The contributory negligence of the injured party will not defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party Emergency rule> An automobile driver, who, by the negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice. Doctrine of Pre-emption > It is a rule in collision cases which the driver of a motor vehicle to make a full stop when crossing a thru-street. Any accident therefore which takes place in said corner gives to rise to the presumption of negligence on the part driver of the motor vehicle running thru-street has already reached the middle part of the intersection. In such a case, the other driver who has the right of way has the duty to stop his motor vehicle in order to avoid a collision. (People vs. Taradji, 3 C.A. Rep. [25] 460) P v Cano > Negligence is a quasi-offense. What is punished is not the effect of the negligence but the recklessness of the accused. P v Carillo > 13 yr old girl dies 3 days after surgery due to an overdose of Nubain which triggered a heart attack that caused brain damage. HELD: Guilty of simple negligence resulting to homicide. Carillo was the anesthesiologist, he and his co-accused failed to monitor and provide close patient care, to inform the parents of the child’s true condition, to prove that they exercised necessary and appropriate degree of care and diligence to prevent the condition. Buearano v CA

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Elements and Notes in Criminal Law Book II by RENE CALLANTA > Conviction of the accused in the charge of slight and less serious physical injuries through reckless imprudence constitutes double jeopardy to the charge of the crime of damage to property through reckless imprudence. * Since this is the mode of incurring criminal liability, if there is only one carelessness, even if there are several results, the accused may only be prosecuted under one count for the criminal negligence. So there would only be one information to be filed, even if the negligence may bring about resulting injuries which are slight.

* Do not separate the accusation from the slight physical injuries from the other material result of the negligence.

* If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical injuries, do not join only the homicide and serious physical injuries in one information for the slight physical injuries. You are not complexing slight when you join it in the same information. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence.

* If you split the criminal negligence, that is where double jeopardy would arise. * Accused is not criminally liable for the death or injuries caused by his negligence to trespassers whose presence in the premises he was not aware of. In the case of People vs. Cuadra, C.A., 53 O.G. 7265, accused was a truck driver. Unknown to him, several persons boarded his truck and while driving along a slippery road which has a declinations of 25 degrees, the left front wheel of the truck fell into a ditch. In his effort to return the truck to the center of the road, the truck turned turtle, throwing off two of the passengers who boarded the truck without his knowledge. As a consequence, one of them died. Cuadra was acquitted of the crime of reckless imprudence resulting in homicide and physical injuries. * Overtaking of another vehicle is a normal occurrence in driving. But when the overtaking is done from right, it shows recklessness and disregard of traffic laws and regulations. It is likewise so when the overtaking is done while another vehicle is approaching from the opposite direction. This is a violation of Section 59(b) of the Motor Vehicle Law (People vs. Songalla, C.A., 67 O.G. 8330) * Driving within the speed limit is not a guaranty of due care. Speed limits impose the maximum speed which should not be exceeded. The degree of care required of a motorist is not governed by speed limits but by the circumstances and conditions obtaining in the place at the particular time. So, if the maximum speed limit is 80 kilometers per hour and the vehicle driven at 30 kilometers per hour, but because of the very slow pace of the vehicle, an accident occurs, the observation of the speed limit will not be acceptable evidence of due care. (people vs. Caluza, C.A., 58 O.G. 8060) Force majeure in relation to negligence. > Force majeure has reference to an event which cannot be foreseen or which being foreseen, is inevitable. It implies an extraordinary circumstance independent of the will of the actor or perpetrator. In negligence, the immediate personal harm or damage to property is perceivable and can be prevented by the exercise of reasonable care. As the event is foreseeable, the failure of the actor to use reasonable care to prevent harm or damage constitutes reckless imprudence or simple negligence. (People vs. Eleazar )

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