Criminal Law I - Amurao Notes

CRIMINAL LAW Lecture & Recitation Notes

Page 1 of 139 Atty. Maximo Amurao

CRIMINAL LAW 1 June 17, 2011

Introduction to Criminal Law Q: What is criminal law? CRIMINAL LAW – branch of law which defines crimes, treats of their nature and provides for their punishment Q: Suppose Congress enacted a piece of legislation, and any violation of that law, penalty will be payment of damages, is that criminal law? Q: Suppose the form of penalty will be confiscation of license, is that criminal law? Q: How will you define a crime? *what particular act constitutes the crime *what are the elements of the acts Q: What is criminal procedure? CRIMINAL PROCEDURE – body of rules that enforces or regulates criminal law, provides for the steps in the prosecution and/or conviction of an accused. Q: Is there any difference between criminal law and criminal procedure? Yes. Q: What are the differences? CRIMINAL LAW *substantive *GENERALLY prospective, unless favorable to the accused, provided accused is not a habitual delinquent *only comes from the legislative or law-making body; never from the executive or judiciary

CRIMINAL PROCEDURE *procedural/remedial *prospective, BUT CAN BE applied RETROACTIVE

*can be promulgated by the judiciary

*in favor of the ends of substantial justice Q: who is a habitual delinquent? A person who within a period of 10 years from the date of his last release or conviction of the crimes of 1) serious or less serious physical injuries, 2) robo, 3)hurto 4)estafa or 5) falsification, he is found guilty of any of said crimes a third time or oftener (Art 62, rpc) Q: Suppose accused is a HD, will there be prospective or retroactive application of criminal law?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 2 of 139 Atty. Maximo Amurao

Q: Is criminal law the same as the RPC? Yes Q: What is a crime? Generic term used to refer to a wrongdoing punished either in RPC or under a special law Q: Who has the power to enact laws? Congress (Legislative) Q: Is the power of Congress absolute? No. There are limitations. It should not violate the constitution Q: We call our penal code, the REVISED PENAL CODE, why, which penal code was revised? The Spanish Penal Code Q: How was it revised? *A committee was formed pursuant to Administrative Order No. 94 by the Department of Justice. *The committee was formed on Oct 18, 1827 *The committee was composed of Anacleto Diaz (head); Quintin Paredes; Alex Reyes and Mariano De Joya Q: How did the revision come about? *the RPC contains provisions of the Spanish penal code, US Penal Code and SC decisions of the Philippines before the creation of the RPC Q: What are the sources of criminal law? *Revised Penal Code *Special Penal Laws enacted or passed by the Philippine Commission, Philippine Assembly, Philippine Legislature, National Assembly, Batasang Pambansa, Congress of the Philippines *Penal Presidential Decrees issued during Martial Law (only because the President at that time had legislative power, but generally, the Executive branch cannot issue EO or PP that are penal in nature) *Spanish Penal Code *US Penal Code (we copied the ff crimes from the US Penal Code: estafa, malversation, etc) Q: Who has the power to define crimes? The State Q: Why does the State has the power to define crimes? Because of its police power. The right to prosecute and punish crimes is vested in the sovereign power, which is the Filipino people. Q: When did the RPC took effect? Jan 1, 1932 Q: Why is there a long lapse of time in the effectivity and approval of the RPC?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 3 of 139 Atty. Maximo Amurao

So that PH will be familiarized with the new provisions of the RPC Q: Who approved the RPC? US President Q: What are the theories in criminal law? Classical, Positivist, Mixed CLASSICAL -the objective is retribution - the emphasis is on the crime -consistent with the saying “an eye for an eye, a tooth for a tooth” - man has free will to do or not to do - the criminal liability arises from knowledge and freedom -man is a rational being -example: RA 9372 (Human Security Act of 2007) POSITIVIST -the objective is reformation -the emphasis is on the criminal -believes that crime is a social phenomenon -sees man as a moral/human being -man by nature is good -man is exposed to environment where man is compelled to do a crime -example: RA 9344 (Juvenile Justice and Welfare Act of 2006) Probation Law of 1976 Indeterminate Sentence Law MIXED -combines the classical and the positivist -applied classical theory for heinous crimes -applies the positivist for economic and social crimes Q: What do we apply in the Philippines? Mixed. Our system is a little bit of classical and a little bit of positivist. The RPC is classical and recent laws enacted by the legislature are positivist in nature. Q: What is the degree of proof needed to convict an accused of a criminal charge? Proof beyond reasonable doubt Q: Is this absolute? No. In the crime of treason, PBRD is not the only requirement. There is a requirement of the 2 witness rule Q: May a person be convicted by reason of the spirit of the law?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 4 of 139 Atty. Maximo Amurao

No. Only by the language of the law. It should be clear and in case of doubt, it should be favorable to the accused. June 21, 2011 Q: What are the kinds of repeals? 1. Absolute or Express -the effect is decriminalization -the obliteration of a crime -for pending cases, the case shall be dismissed -for those serving sentence, they shall be released because there is no more reason for the accused to serve sentence 2. Partial or Implied -the crime is still punishable, but modified (in terms of penalty) -example: the case of Robin Padilla, PD 1866 was partially repealed by RA 8294, which reduced the sentence for illegal possession of firearms, thus qualifying Robin Padilla for parole 3. Self-repealing -deemed repealed upon the expiration of the date specified by the law -the law dies a natural death -example: RA 1700 (Anti-Subversion Law) and Rent Control Law Q: What is the general characteristic of criminal law? Criminal Law is binding on all persons who live or sojourn in the Philippine territory, regardless of race, nationality, political affiliation. Q: Is this rule absolute? No. The exceptions are: 1. Treaties 2. Laws of preferential application Q: What is the territorial characteristic of criminal law? Only crimes committed within the Philippine territory may be prosecuted before Ph court Q: What is the rationale behind this? A crime is an offense against the dignity, authority and sovereignty of the Ph territory; and only the state in which the dignity, authority and sovereignty has been offended has the right to punish the offender. Q: Is the territoriality absolute? No. The exceptions are: 1. Treaties 2. Laws of preferential application Q: Other characteristic of criminal law? Prospective (non retroactivity)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 5 of 139 Atty. Maximo Amurao

Exception: favorable to the accused Exception to the exception: accused is a habitual delinquent Q: Can you give an example of a treaty that is an exception to the generality & territoriality principles of criminal law? VFA Q: Why is VFA an exception? Generality – because even if the accused sojourn in the Philippines, the accused will not be prosecuted in ph courts Territoriality – because even if the accused committed the crime in the Philippines, the accused will not be prosecuted in ph courts Q: Who are the parties to VFA? US and PH Q: who are covered by the VFA? US military personnel US civilian personnel connected to the US military operations in the Philippines Q: Who is a US military personnel? military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard Q: Is the American Red Cross personnel covered by the VFA? Yes. Is he is part of the US personnel Q: What are the types of jurisdiction in VFA? Exclusive and Concurrent Q: What do you mean by exclusive & concurrent jurisdiction? Exclusive – exclusive of other courts; vests jurisdiction on one court Concurrent – both countries have jurisdiction Q: When is it exclusive? PH have exclusive jurisdiction – crimes punishable under PH laws but not punishable under US laws. US have exclusive jurisdiction - crimes punishable under US laws but not punishable under PH laws. Q: When is it concurrent? Crimes punishable both under PH and US laws. Q: But, even if jurisdiction is concurrent, when will PH have primary jurisdiction? *Philippine authorities shall have the primary right to exercise jurisdiction over all offenses *Especially, when it is a threat to the security of the Philippines, a) treason b)espionage c)sabotage

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 6 of 139 Atty. Maximo Amurao

EXCEPT: *crime committed by a US personnel against the property and security of the US – Ph has no jurisdiction, these includes: 1. against the property of the US 2. against the security of the US 3. against the property of another military personnel 4. against the security of another military personnel 5. committed in the performance of official duties Q: Suppose US military personnel was driving at Roxas Blvd to deliver a confidential letter to the US embassy, while driving, he run over a pedestrian, which court has jurisdiction? US. Committed in the performance of official duties. Q: Suppose one night US military personnel went to the bar, after drinking and being so tipsy, raped a woman, which court has jurisdiction? PH. Not in the performance of official duties Q: Suppose 2 Filipino citizens working as US military personnel in the PH had a quarrel. Filipino 1 shoots Filipino 2. Who has jurisdiction? US. Citizenship is immaterial. What is important is attachment to the US military Q: Suppose the one who was injured filed a civil case for damages, will it prosper? No. VFA covers only criminal aspect Q: 1 US marine stole the wallet of another US marine, who has jurisdiction? US. Property of another military personnel Q: Suppose you are a judge, the US wrote a letter for you to waive jurisdiction, what will you do? Generally, the PH has to waive jurisdiction upon request of US. The request for waiver cannot be rejected. Q: Is this rule absolute? No. The request for waiver may be rejected if the crime is of particular importance RA 9659 (heinous crime) RA 7610 (child abuse cases) RA 9165 (dangerous drugs) Q: Suppose US military personnel committed kidnapping, who has jurisdiction? PH courts. This is a crime against personal security Q: Give an example of Laws of Preferential Application that is local in nature? Constitution *immunity suit of president *absolute immunity of Congress for privilege speeches *Congress immune from libel

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 7 of 139 Atty. Maximo Amurao

NOTE: Art 6, Sec 11, 1987 Consti is not an exception. BECAUSE Congress is only immune from arrest not from prosecution Q: What else? RA 75 – Public International Law Diplomatic immunity and cannot be sued, arrested or punished by the law of the country where they are officially assigned: Ambassadors Sovereign or other chief of State Ministers plenipotentiary or minister residents Charge d’affairs Domestic Servants of persons mentioned NOTE: Consuls and other consular officials are not exempt from criminal liability because they represent the business, commercial mercantile of their country; while, ambassadors, chiefs of State, etc. represent the political interests of their country of origin. WARSHIP RULE -warship of another country, even though docked in the PH is considered an extension of the territory of that country Q: suppose the warship of US is docked at Subic, one day, you went to Subic with your gf, brought her to the ship, and then raped her. Will you be prosecuted? No. Warship is an extension US territory Q: suppose after raping her, you brought your gf to her parents, will you be prosecuted? No. Warship rule Embassy Rule – same as warship rule Q: Suppose one day, you shut a person at Roxas Blvd, when the police officers were running after you, you jumped over the fence of US embassy. May the officers arrest you, while you are inside the US embassy? No. Q: What is then the remedy of the officers (Ph government)? Extradition Q: suppose a Filipina legally married had sexual intercourse with an American at the Ph embassy. Is there any crime committed? Yes. The crime of adultery, but she cannot be prosecuted under Ph courts because of the embassy rule. Q: who else is exempt/immune from criminal prosecution? Executive directors of WHO

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 8 of 139 Atty. Maximo Amurao

Members of the Constitutional Commission Justices of Supreme Court Q: How about consular officials? They are not covered. They are not exempt from criminal liability because they represent the business, commercial mercantile interests of their country of origin. Q: Suppose Ambassador of Japan to the US committed a crime in the Philippines, may he be prosecuted? Yes, because he is not a recognized diplomatic representative of his country to the Philippines.

Article 2 ^par 1-5 of Art 2 is not an exemption to the territoriality principle, it is EXTRATERRITORIALITY! Q: The first instance in Art 2? Should commit an offense while on Ph ship or airship Q: What is Ph ship or airship? Ship registered with MARINA Airship registered with Civil Aeronautics Board Q: What are the requirements in order a ship/airship be a Ph ship? It must be registered in accordance with Ph laws Q: Why not register in Bureau of Customs? The law requiring registration in Bureau of Customs had been repealed. Now its Marina and CAB Q: Does PH include warship? No. Warship has different rule Q: Suppose a cargo ship in Quezon going to Malaysia, within Ph territory, 1 crew committed homicide against another crew, who has jurisdiction? PH. The crime is committed in PH territory It is not important whether cargo ship is registered or not, because crime committed in Ph territory. (Territoriality principle) Q: Suppose that cargo ship traversed through international waters then reached the waters of Malaysia, 1 crew member committed homicide against another. Which court? Malaysia. Because the crime is committed in Malaysian waters ^Art 2, par 1 ceases to apply if the ship is in the territory of foreign country ^Art 2, par 1 applies only if the ship is in international waters

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 9 of 139 Atty. Maximo Amurao

Q: Suppose you live in a coastal town, then you hired an unregistered motorboat, then you went to int’l waters, then you shoot your gf because you are so depressed because of recitations in criminal law review, will you be liable? No. unregistered motorboat Q: suppose in the same motorboat, a married man with his new gf went on high seas, and there got married. Is the man liable for any crime? Yes. He is liable for bigamy. (because he contracted a second marriage) BUT he cannot be prosecuted because of the territoriality principle. The crime was committed outside Ph territory. Q: suppose after the wedding ceremony, you went to a resort, where there is a big reception. In that resort, you had your honeymoon; will you (married man) be liable for any crime? No. Not concubinage because mere sexual intercourse not punishable, it must be under scandalous manner Q: suppose after your honeymoon, you live together in a condo in Manila, will you be liable? Yes. Concubinage Cohabitation; living in a separate home as husband and wife Q: What are the 2 rules? English Rule – vessel is in the territory of another country, crimes committed in that area are triable in that other country, unless the crimes committed involve purely internal matters within the vessel; the emphasis is on the territoriality of the vessel; where the vessel is found French Rule – vessel is in the territory of another country, crimes committed in that area are not triable in that country, unless the crimes committed have endangered the peace and security of that country; the emphasis is on the nationality of the vessel; jurisdiction lies where the merchant vessel is registered. ^The PH adheres to the English rule Q: Cargo ship, registered in Panama while in Manila, 1 crew member shoot the other crew member, who has jurisdiction? Ph courts. Crime committed in manila Q: Cargo ship, registered in Panama, carried shabu, which court has jurisdiction? Ph courts. Q: Second instance in Art 2? Art 2 par 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands Q: what may be the subject of forgery?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 10 of 139 Atty. Maximo Amurao

Any coin, Currency Note, obligations and securities issued by the Government of the Philippine Islands Q: Suppose you have a printing press in Taiwan, and you printed Bagong Lipunan notes (martial law), liable? No. Because Bagong Lipunan notes are not legal tender Q: Suppose coins withdrawn from circulation, liable? Yes. The law does not distinguish. It says ANY COIN Q: Suppose in you tampered a lotto ticket, liable? Yes. Lotto ticket is obligations and securities issued by the GPI Q: give examples of obligations and securities of GPI Treasury bills, lotto tickets, bonds of the BSP ^Obligations and Securities of GSIS, SSS, Landbank are not of the GPI because they have their own charter Q: any other instance? Art 2, par 3 Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number ^those who introduced the counterfeited items are criminally liable, even if they were not the ones who counterfeited the obligations & securities ^on the other hand, those who counterfeited the items are criminally liable even if they did not introduce the counterfeit items Q: any other instance? Art 2, par. 4 While being public officers or employees, should commit an offense in the exercise of their functions Q: who is a public officer? (see Art 203) *taking part in the performance of public functions in the government, or performing in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; and *that his authority to take part in the performance of public functions or to perform public duties must be – a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 11 of 139 Atty. Maximo Amurao

Q: Suppose PH ambassador to Germany was given USD 200,000 as a fund to renovate the PH embassy building in Germany. He used only USD 50,000 for the renovation, and gave the USG 150,000 to his number 2 in Germany. Is he (ambassador) liable? Yes. He is liable for malversation of public funds. He may be prosecuted in Ph courts. He was in custody of the money by reason of his official functions Q: Suppose our AFP high officials were tasked to scout for firearms abroad, and while they are negotiating with foreign companies abroad, these companies inserted USD1000 in the proposal folder in anticipation that their company will be chosen by AFP to be the supplier of our firearms. May these AFP officials be liable? Yes. They are liable for bribery. Q: (follow-up) Even if the act of accepting the bribe was committed abroad, will they still be liable? Yes, because the act was committed in relation or while the AFP are in discharge of their official functions. Q: Suppose Chairman Abalos (comelec) while playing golf in Shanghai, China received USD50,000 in relation to the ZTE? Is there a crime committed? May he be liable? Crime – anti graft & corrupt practices act BUT, he cannot be liable/prosecuted before Ph courts because Abalos has nothing to do with ZTE (paki alamera lang siya). Therefore, he received the money not in connection with his official function. Q: Suppose the PH ambassador to Australia is legally married. Can he be prosecuted for concubinage? No. Crime was committed outside PH Crime was not in relation to official functions Elements of concubinage: 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. c. Cohabiting with her in any other place. 3. That as regards the woman she must know him to be married Q: Can the PH ambassador use immunity from suit as a defense against PH courts? No Q: PH ambassador, married, had sexual intercourse with her American boyfriend in the comfort room of PH embassy. May he be prosecuted? Yes. Ph embassy is an extension of Ph territory For what crime – adultery Q: may the American citizen bf be liable for any crime? Yes. Adultery Elements: *That the woman is married (even if marriage subsequently declared void)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 12 of 139 Atty. Maximo Amurao

*That she has sexual intercourse with a man not her husband. *That as regards the man with whom she has sexual intercourses, he must know her to be married. Q: Last instance? Art 2, par 5 Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. Q: Give example of crimes against national security? Treason, espionage, conspiracy to commit treason Q: How about rebellion? No. rebellion is crimes against public order Q: crimes committed by the MILF? No. Crime against public order Q: example of violation of the law of nations? Anti – terror law Crimes against humanity Genocide Q: what are the 2 kinds of piracy? Piracy under the RPC Piracy under PD 532 Q: what does Art 2 covers? Piracy under RPC only. Because piracy under PD532 is committed within PH waters

Article 3 Q: What are felonies? Acts and omissions punishable by law are felonies (delitos). Q: What do you mean by “punishable by law” Punishable by the RPC Q: how felonies are committed? Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). Q: What is dolo? What is culpa? There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 13 of 139 Atty. Maximo Amurao

^Violations of RPC – felony ^Violations of special penal law – offenses ^violations of ordinance – misdemeanor (minor infraction of the law) Q: What are the requisites of felony? 1. Act or omission 2. RPC 3. Voluntary a. Freedom b. Intelligence c. Intent ^ALL MUST BE PRESENT IN ORDER TO INCUR CRIMINAL LIABILITY Q: Is illegal possession of bladed weapon a felony? No. It is not under the Revised Penal Code Atty. Amurao Lecture Highlights: *To be considered as a felony there must be an act or omission; a mere imagination no matter how wrong does not amount to a felony. *An act refers to any kind of body movement that produces change in the outside world. For example, if you have in your mind that you will rape this beautiful lady, but you did not rape her, you will not be liable. *Actus non facit reum, nisi mens sit rea (an act of a criminal should be coupled by a criminal mind) *It does not mean that if an act or omission is punished under the Revised Penal Code, a felony is already committed. To be considered a felony, it must also be done with dolo or culpa. *If you do not have freedom, the act is not voluntary; the act is not a felony *These are amplified in the some provisions of the RPC, like… Intelligence – art 12 – insanity, imbecility, minority Freedom – art 12 – under compulsion of some irresistible force; fear of greater injury Intent – art 12 – by mere accident w/out fault or intent to cause harm *Mistake of fact is a valid defense Q: What are the differences between MALA IN SE and MALA PROHIBITA MALA IN SE *intent is essential *good faith is a valid defense

MALA PROHIBITA *intent is not essential *good faith is not a valid defense

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes *honest mistake of fact is a defense *punishable under RPC *condemned by society *act done must be criminal intent

Page 14 of 139 Atty. Maximo Amurao *honest mistake of fact is not a defense *punishable under special laws *injurious to public welfare *it is sufficient that the prohibited act was done

Q: give examples of Mala In se? RPC – homicide, murder, parricide, arson … and so on… Q: give examples of Mala prohibita Anti Fencing Law Bouncing Check Law Illegal Possession of Firearms Anti Human Trafficking Law Anti Hijacking Lack Q: Suppose your bf is a police officer, 1 day while you were having your date in Luneta Park, your bf had to answer the call of nature, so he handed to you his pistol, while you were holding it, the officers arrested you, may you be liable for illegal possession of firearms? No. Transient Possession not liable Although I was in possession, although I have no license to posses, Still not liable because I have no intent, and this is an exception to mala prohibita Q: Suppose the police officers are running after a man, then the man throw his .45 caliber, you were around the corner and you extended your arms, then the firearm fell on your hands, may you be liable for illegal possession? No. Transient possession Q: Suppose I (atty. Amurao) mortaged my firearm to you for 30 days, and on the 20th day, there was a raid in your house, may you be liable for illegal possession? Yes. There is animus possendi

an act or omission Act – any physical movement of the body (Amurao); any bodily movement tending to produce some effect in the external world (Reyes) Omission – means inaction; the failure to perform a positive duty which one is bound to do; there must be a law requiring the performance of an act and punishing the omission; eg. arbitrary detention; misprision of treason punishable by the Revised Penal Code ^When there is a conflict between special penal laws and the Revised Penal

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 15 of 139 Atty. Maximo Amurao

Code, in terms of the application of penalties, what to follow? ^What is important is the definition and the classification of the act (whether it is an offense or a felony) Special Penal Laws = penalties are stated in terms of years, months, days Revised Penal Code = penalties are stated in terms of degrees, with death as the highest penalty; classified as indivisible or divisible a. indivisible = death and public censure b. divisible (has 3 periods; what period to apply is dependent on the aggravating and mitigating circumstances present in the case) Penalties under the RPC (in descending order in terms of degree) Death or Capital Punishment - indivisible Reclusion Perpetua (20yrs & 1day – 40yrs) Reclusion Temporal (12yrs & 1day – 20yrs) Prision Mayor (6yrs & 1day – 12yrs) Prision Correccional divisible or Destierro (6mos&1day – 6yrs) Arresto Mayor (1mo & 1day – 6mos) Arresto Menor (1day – 30days) Fine Public Censure – indivisible the acts done should be voluntary (Amurao) voluntary - the concurrence of intelligence, freedom, intent (Ortega) ^all should be present in order to incur criminal liability (a) intelligence – no intelligence, no criminal liability; eg. children 15 yrs old & below are exempt from criminal liability (RA 9344) (b) freedom – no freedom, act is not voluntary, no criminal liability (c) intent – essential to a felony; prosecution has to prove intent; good faith is a defense Article 12 of the RPC (Exempting Circumstances) is amplified by the importance of the element of voluntariness: (a) intelligence – insanity/imbecility [Art.12(1)]; minority [Art.12(2&3)] (b) freedom – under the compulsion of some irresistible force [Art.12(5)]; fear of greater injury [Art.12(6)]; failure to perform an act required by law when prevented by some lawful or insuperable cause [Art.12(7)]

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 16 of 139 Atty. Maximo Amurao

(c) intent – by mere accident w/o fault or intent to cause harm [Art.12(4)] Alibi – used in defense saying that the act or omission was not done at all; intends to disprove the existence of an act or omission; weakest defense; can easily be fabricated; eg. Vizconde case – Webb’s alibi = he argued that he was in the US when the crime happened, therefore, he could not have killed the victims, claiming that he is innocent Actus non facit reum, nisi mens sit rea – an act of a criminal should be coupled by a criminal mind the defense of honest mistake of fact - the act done by the accused would have constituted: (a) a justifying circumstance (Art.11, RPC) - in all instances = no criminal liability; no civil liability (b) an absolutory cause [Art.247(2)] (c) an involuntary act Requisites for honest mistake of fact as a defense: 1. that the act done would have been lawful had the facts been as the accused believed them to be 2. that the intention of the accused in performing the act should be lawful 3. that the mistake must be without fault or negligence/carelessness on the part of the accused Cases on honest mistake of fact: 1. US v. Ah Chong (landmark case) - Ah Chong killed friend Pascual thinking he was a thief/ladron - there was sufficient warning on the part of accused; accused was acquitted 2. US v. Apego - accused killed her brother-in-law in fear of being raped; guilty of homicide 3. People v. Oanis - policemen killed the wrong person w/o warning; guilty of murder 4. People v. Bayambao - accused killed his brother-in-law thinking he was an outlaw - brother-in-law acted as if he going to attack; accused was acquitted Motive - special reasons that impel the accused to act (Amurao) - the moving power which impels one to action for a definite result (Reyes) - not an essential element of a felony - evidence of motive is necessary only in case of: (1) doubt in the identity of the accused (Amurao), (2) two conflicting versions of the crime - motive is established by the testimony of the witness - lack of motive may be an aid in showing innocence

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 17 of 139 Atty. Maximo Amurao

Discernment – ability of the accused to determine right from wrong

Exceptions to the general rule on malum prohibitum crimes (PLEASE REFER TO REYES BOOK) 1. Cuenca v. People - Cuenca was acquitted by the SC from the crime of illegal possession of an unlicensed firearm; it is said that the SC erred in its decision (Amurao) 2. People v. Landicho - convicted by the trial court; decision reversed by the Court of Appeals - the CA held that convicting the accused would be sacrificing substantial justice for mere technicality 3. People v. Mallare - case was about the delay of the issuance of the license - the accused convicted by the trial court; decision reversed by the CA - the CA held that the blame should be put on the government not on the applicant of the license 4. mere transient possession of unlicensed firearm - not criminally liable - in the crime of illegal possession of unlicensed firearm, for an accused to be criminally liable, there should be animus posidendi or “intent to possess”

Article 4 Concept of proximate cause – injury inflicted Q: What is proximate cause? Proximate cause is that cause which sets into motion other causes and which unbroken by any efficient supervening cause produces a felony without which such felony could not have resulted As a general rule, the offender is criminally liable for all the consequences of his felonious act, although not intended, if the felonious act is the proximate cause of the felony or resulting felony. A proximate cause is not necessarily the immediate cause. This may be a cause which is far and remote from the consequence which sets into motion other causes which resulted in the felony. Immediate cause – infection

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Q: What is efficient intervening cause? Efficient Intervening Cause – interrupted the natural flow of events leading to one’s death *Victim is under no obligation to submit to medical treatment to reduce or mitigate the liability of the accused.

Q: A, B, C hold up a bus, a passenger ran away, hit by the car, passenger died. Who is liable? ABC Q: Hold up in a nearby grocery store, old man suddenly collapsed seeing the commotion, old man eventually died, who is liable? Robbers Immediate cause – heart failure Q: Suppose Atty Amurao during recit, you collapsed, hit the table and massive bleeding, dead on arrival, is amurao liable? No. Recit is not a crime Q: suppose because of your wrong answers, amurao shouted defamatory words, liable? Yes. Amurao committed slander Q: Is it wrong to love a married person? No. As long as it does not go beyond that point Q: Sexual intercourse with a married woman, while doing the act, the woman had heart attack, will you be liable? Yes. You committed adultery Q: Man married, had a sexual intercourse with a single woman, the woman had heart attack, died. Will you be liable? No. Concubinage is not committed Q: If under a tree in Luneta? Yes. Liable for concubinage, under a scandalous manner Q: both single, man is a teacher, woman is a student, liable? No. There is no crime Q: If the student is under 18 years old, will your answer be the same? No. This time there is a crime. Qualified seduction or rape by grave abuse of authority Q: What is an impossible crime? Q: Give the case of Intod

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Q: Give the elements of impossible crime vis-à-vis facts of Intod Q: Give the case of PP v Jacinto? Q: do you agree with the decision? Q: How is theft committed? Q: Is it an element that the accused should make or actually profit? No Q: May a person be liable if he did not commit a crime? Yes. Impossible crime. Technically no crime, subjectively – there is a crime Q: What is the penalty? Arresto Mayor or a fine ranging from 200 to 500 ^Urbano case Q: what is the negligence committed by Javier? Causes which may produce a result different from that which the offender intended, as contemplated in Art. 4 (1) 1. there is a mistake in the identity of the victim - also known as error in personae; or napagkamalan - not a defense in a criminal case; not even a mitigating circumstance 2. there is a mistake in the blow - also known as aberration ictus - not a defense in a criminal case; not even a mitigating circumstance 3. the injurious result is greater than that intended - also known as praeter intentionem Article 4(1) contemplates that there should be a felony being committed - emphasis is not on the mere wrongful act; it should constitute a felony - eg. the act of committing suicide results to others being injured = punishable under Art.4(1) because although not intended, the injury was caused by means of culpa, which can constitute a felony Article 4(1) does not apply if the act committed constitutes a crime punishable by special law  Concubinage - instances - a husband bringing home a woman, that is not his wife, to the conjugal dwelling - having sexual intercourse under scandalous circumstances - cohabitation; living in a separate home as husband and wife Proximate Cause

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- there is a chain of causes from an original act that results to an injury - if the result can be traced back to the original act, then the doer of the original act can be held liable Efficient Intervening Cause – interrupted the natural flow of events leading to one’s death Q: What is impossible crime? What is the reason for punishing? Suppress criminal propensity Q: Suppose son forged signature of his father in a check, the deposited the check, but was dishonored, is this impossible crime? No. Falsification of commercial document. Forgery is a crime against public interest Give the elements of forgery Q: Your room mate kukunin yung jewelry na nasa cabinet na naka-lock, tapos wala pala yung jewelry dun sa cabinet, impossible crime? No. Theft of key ung tamang sagot ^woman lang ang pwede for forcible abduction

Instances when there is a proximate cause and when there is none When there is an intervening disease and the disease is: (a) closely related to the wound(s) = accused is criminally liable (b) unrelated to the wound(s) = accused is not criminally liable, because the disease not associated with the wound(s), eg. brain tumor (c) a combined force with the wound(s) = accused is criminally liable, because the mortal wound is a contributing factor to the victim’s death A mortal wound is a contributing factor when: i. the wound(s) is/are sufficient to cause victim’s death along with the disease ii. the mortal wound was caused by actions committed by the accused

2. When the death was caused by an infection of the wound due to the unskilled medical treatment from the doctors: (a) if the wound is mortal = accused is criminally liable, because the unskilled treatment + infection are not efficient intervening causes

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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mortal wound + unskilled medical treatment only = accused is criminally liable because the mortal wound naturally led to the death of the victim (b) if the wound is slight = accused is not criminally liable, because the unskilled treatment + infection are efficient intervening causes *In Urbano v. IAC, the wound caused by accused Urbano was already treated and was in the normal process of healing which is in approximately 4weeks; but because deceased Javier did not wait for the wound to heal and still worked by fishing, his wound got infected with tetanus which caused his death. The actions of the deceased when he still worked without waiting for his wound to heal was an efficient intervening cause, thus the accused is not liable for his death anymore. Q: What is the purpose for punishing an impossible crime? The purpose of punishing an impossible crime is to prevent or suppress the criminal tendency of the accused  Persons found guilty of impossible crimes are sentenced to arrestor mayor (1mo.1day to 6mos.) pursuant to Article 59 of the Revised Penal Code  Objectively, there is no crime Subjectively, the crime is present  Should there be a crime committed, in order to be held liable for an impossible crime? YES; the act(s) should constitute a crime against persons or property Requisites for an impossible crime under Article 4(2) 1. that the act performed would be an offense against persons or property 2. that the act was done with evil intent 3. that its accomplishment is inherently impossible or that the means employed is either inadequate or ineffectual 4. that the act performed should not constitute a violation of another provision of the Revised Penal Code  Rape used to be a crime against chastity; but because of RA 8353, rape was reclassified as a crime against persons, therefore, one can now be held liable for the impossible crime of rape In People v. Intod, the Court erred in its decision of considering the acts of the accused as an impossible crime under Art.4(2) of the RPC because the 4th element/requisite was not satisfied. The acts of the accused of shooting at the house and damaging the same, can constitute as malicious mischief, which is a crime against property. Therefore, the accused should have been charged with the latter instead of finding them guilty only of the impossible crime of murder. July 4, 2011 Q: Who incurs criminal liability?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Q: What is a proximate cause? Q: if there is a crime intended and a crime committed is different, what is the extent of criminal liability? The lesser penalty will be imposed. If the crime intended has a lesser penalty, then that will be charged If the crime committed has a lesser penalty, then that will be charged Q: Suppose you will rob a jeepney, because of fear, the passenger jumped of and died, will be liable? Yes. Because I am committing a felony, and I am liable for its effects. Q: Suppose Amurao during your recit, pointed a gun at you because of your wrong answers, then you collapsed and died. is amurao liable? Yes. There is grave threat Q: Suppose the gun was a toy gun, liable? Yes, still liable. There is still threat Q: Suppose because of your low grade in criminal law review, you break up with your boyfriend being so sad, your bf collapsed and died, liable? No. Breaking up is not a felony Q: Suppose while you and your boyfriend is doing the act itself (do I need to elaborate—alam mo na yan), your bf collapsed and died, will you be liable? No. The act of having sex is not a felony. Q: even if you are not married to each other? Yes sir Q: suppose your bf is married, are you liable? Yes. Concubinage Q: Suppose man had sexual intercourse with married woman, but the woman consented, crime? Adultery

Article 5 Article 5(1) Requirements: 1. the act committed by the accused appears to be not punishable by law 2. but the court deems it proper to repress such act 3. in that case, the court must render the proper decision by dismissing the case and acquitting the accused

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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4. the judge must then make a report to the Chief Executive through the Secretary of Justice stating the reasons which induce him to believe that the said act should be made the subject of penal legislation

Basis for Article 5(1): “Nullem crimen, nulla poena sine lege.”- There is no crime if there is no law that punishes the act Why dismiss? In the absence of a law that will punish the accused, the judge cannot impose a penalty because the duty of the judge is only to interpret or apply the law; the judge cannot reprimand or curse the accused because it would equate to public censure; the reprimand would be inconsistent with the acquittal Article 5(2) – Excessive Penalties Q: What are the requirements? 1. the court after trial finds the accused guilty 2. the penalty provided by law and which the court imposes for the crime committed appears to be clearly excessive because: (a) the accused acted with lesser degree of malice and/or (b) there is no injury or the injury caused is of lesser gravity 3. the court should not suspend the execution of the sentence 4. the judge should submit a statement to the Chief Executive through the Secretary of Justice, recommending executive clemency  The President has the power to grant executive clemency, through pardon, parole, commutation (reduction of sentence), reprieve or amnesty  Article 5(2) may not be invoked in cases involving acts mala prohibita because said article only applies to acts mala in se because the ruling is based on the phrase in the provision, takes into consideration the degree of malice

Article 6 Q: What are the stages in the commission of a felony? Consummated – a felony is consummated when all the elements necessary for its execution and accomplishment are present Frustrated - it is frustrated when the offender performs all the acts for execution which would produce the felony as a consequence but, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Attempted – there is an attempt when the offender commences the commission of the felony directly by overt acts and does not perform all the acts for execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance NOTE: Available only in RPC. Q: Give example of each (consummated, frustrated, attempted) Q: What are the phases? Subjective phase – from the time the offender commences the commission up to the performance of the last act where he still has control; an attempted felony is committed within the subjective phase and does not go beyond this phase Objective phase – frustrated and consummated felonies are within the objective phase (a) frustrated – the felony is complete but still is still not produced as far as the offender is concerned (b) consummated – when all the elements under the Revised Penal Code are present REMEMBER: in Arson (a) consummated = so long as a part of the building is burned, no matter how small (b) frustrated = if only the contents of the building (eg. chairs and tables) are burned (c) attempted = contents haven’t been burned ^Intent is always established. Kahit pa apprehended at the time ot in the act of bringing/getting gasoline – attempted pa din ^Indeterminate stage – intent is not yet established Q: Suppose built in cabinets, burned the clothes in the cabinet, including the cabinet? Consummated arson, deemed part of the bldg Q: Supposing, the accused brought gasoline into a building, with the intent to burn the building, but was apprehended by the security guard; did the crime of arson commence? YES, thus the accused is liable for attempted arson, because the bringing of gasoline was already an overt act while the apprehension was the reason other than his own spontaneous desistance. Q: Supposing, using the same set of facts above, but without the intent to burn the building, is there criminal liability? NO, in fact there is no crime, because the acts were only in an indeterminate stage. Q: Suppose the white board was burned? White board not an integral part

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Q: when is the crime in the attempted stage?  Indeterminate Stage – we do not know what crime is in the mind of the offender; the crime has not yet been determined; there are still two possibilities when the accused was caught  According to Prof. Amurao, when a person is accused of committing a felony, we have to first establish the crime in the mind of the offender to establish the commencement of the commission of the felony; otherwise, the situation when he was caught would be in an indeterminate stage, wherein the crime that the accused intended to do could not be determined Theft/Robbery - both these crimes are committed by taking the personal property of another and, with the intent to gain - the difference is that in robbery, there is the use of force or violence - so long as the act stated in the RPC is done, the crime is consummated - it does not matter how long the property was in the possession of the accused; it does not matter whether the property was disposed or not; what matters is whether or not there was “asportacion” = unlawful taking - momentary possession consummates the crime of theft or robbery - returning the item to the owner is immaterial; has no effect to the crime - upon consummation of the crime, criminal liability automatically attaches Q: you are walking in recto, cellphone was snatched, but it was return to you. What stage? Consummated Q: suppose in a private subdivision, with intent to commit robbery, you are tinkering with the lock of a gate, the security guard apprehended you. Liable? Yes. Attempted robbery Q: suppose you intent to commit robbery, then you place a ladder at the wall of the house, when you place the ladder, you were apprehended. Liable? Yes. Attempted robbery Q: if no intent? Not liable Q: accused trying to open your car, problem is silent with the intent, may you be liable for attempted theft?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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No. Opening the door of the car – only indeterminate stage Q: Supposing, the accused was tinkering with the lock of the gate of a neighbor’s house, without the intent to commit a felony; is he liable for anything? NO, because the situation was in an indeterminate stage wherein it could not be determined what the accused intended to do Q: Supposing, the accused jumped over the fence into another person’s house without the intent to commit robbery, is he liable for attempted robbery? NO, but he is liable for the crime of trespassing ^Same with arson, when a person is accused of committing a felony, we have to first establish the crime in the mind of the offender to establish the commencement of the commission of the felony; otherwise, the situation when he was caught would be in an indeterminate stage, wherein the crime that the accused intended to do could not be determined  In People v. Lamahang, the accused was able to open one board of the door to private respondent Tan Yu’s store, when the police caught him. The SC ruled that the accused is not liable for attempted robbery because the intent to rob Tan Yu’s store was not established, thus when accused was caught, it was in an indeterminate stage. But the Court held him liable for attempted trespass to dwelling  In People v. Salvilla, the accused were held liable for the crime of robbery with serious illegal detention and serious physical injuries, and not frustrated robbery, even without physical taking or possession of the money they demanded because the money was within the dominion, which the accused had control over and it was where the crime was being committed. During whole time when negotiations went on between the accused and the police, the crime of robbery was deemed consummated Q: suppose hold up in a grocery store, hold uppers asked the cashier to place the money inside a bag, no one hold the money. Is the crime consummated? Yes. There is constructive control July 5, 2011 Crimes involving the taking of human life/ Crimes against persons - these crimes are committed by killing a person (MHPI): i. Murder – killing a person with attending or aggravating circumstances ii. Homicide – killing a person without attending circumstances iii. Parricide – killing a relative, i.e. spouse, parent, child, sibling, etc. iv. Infanticide – killing a child less than three (3) days old

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- even without intent, the moment the victim dies, intent is presumed by operation of law and the crime is consummated - if the victim doesn’t die but the wound inflicted is mortal, it is frustrated - if the there is no intent to kill, but the wound inflicted is mortal or fatal, the crime is not either MHPI but serious physical injuries Mortal – when the wound inflicted can cause the death of the victim; when death will follow - for frustrated & attempted cases, it is important to determine intent to kill

Q: Supposing, in a car accident, the accused hits a person causing mortal wounds, but the victim does not die, is the driver-accused liable for frustrated homicide? NO, he is only liable for serious physical injuries Rules on crimes against persons (MHPI) and the stages of execution 1. victim dies, with or without the intention to kill, intent is conclusively presumed by operation of law, the crime is consummated MHPI 2. victim does not die, with the intent to kill, mortal wounds were inflicted, the crime is frustrated MHPI 3. victim does not die, with the intent to kill, non-mortal wounds were inflicted, the crime is attempted MHPI 4. victim does not die because there was only an overt act and no wound was inflicted, but there was intent to kill, the crime is attempted MHPI 5. victim does not die, without the intent to kill, mortal wounds were inflicted, the crime is serious physical injuries 6. victim does not die, without the intent to kill, non-mortal wounds were inflicted, the crime is less serious or slight physical injuries Illustration: Death (1) YES (2) NO

Intent presumed YES

Gravity of the wound

Crime

of course mortal!

Consummated MHPI

mortal wounds

Frustrated MHPI Attempted MHPI

(3) NO

YES

non-mortal wounds

(4) NO

YES

overt act only, no wound

Attempted MHPI

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes (5) NO (6) NO

NO NO

Page 28 of 139 Atty. Maximo Amurao mortal wounds

Serious physical injuries

non-mortal wounds

Less serious/Slight physical injuries

In People v. Trinidad, the trial court held the accused criminally liable of two counts of murder (for killing Soriano and Laroa) and frustrated murder (for shooting at Tan). The SC modified the decision by ruling that the accused was liable for two counts of murder and attempted murder, not frustrated, because the wound inflicted on Tan was not mortal or fatal In People v. Lim San, the trial court held the accused criminally liable of attempted murder for stabbing Keng Kin in the left eye. The SC modified the decision by ruling that the accused should be liable of frustrated murder because not only was it established that there was intent to kill, but also the wound inflicted was mortal. It just so happened that the victim did not die because of the prompt and efficient medical assistance given to the victim. The treatment was the cause independent of the will of the accused. In Mondragon v. People, the SC held that the accused was only guilty of less serious physical injuries because when the accused and the victim were hacking each other with their bolos, there was no intent to kill on neither party; and also because the victim did not die since the wounds were not mortal RAPE - the crime of rape is consummated by mere penetration of the male organ, no matter how slight Q: Supposing, the penetration was only 2 millimeters deep, consummated? YES, no matter how slight the penetration is, it is still consummated Q: Supposing, the rape was consummated because there was penetration, but according to the medical examination, the victim was still a virgin, can the accused still be held liable for consummated rape? YES, as long as there is penetration, the rape is consummated. In People v. Orita, the medical examiner testified that the victim was still a virgin therefore the rape may not have been consummated. But the SC ruled that the testimony of the victim herself should be given greater weight because she herself can feel whether or not there was penetration. Instances of attempted rape: - when the skirt of the victim has been lifted, no matter what position - when the accused mounted on the body of the victim - when there is epidermal touching of the genital organs of the accused and the victim The difference between attempted rape and acts of lasciviousness is that with the former, there is carnal knowledge or the intent to have sexual intercourse is established

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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There is no such thing as frustrated rape; the only exception was when the SC ruled in People v. Eriña that the accused was guilty of frustrated rape. Thereafter, no one has since been held guilty of frustrated rape. ESTAFA - the elements for the crime of estafa are (1) deceit, and (2) damage - without one of the two elements, estafa would not be consummated In US v. Dominguez, the SC ruled that the accused was guilty of frustrated estafa because before accused could cause damage by disposing of the money that he deceitfully took, he was apprehended by their store’s supervisor, which was the cause independent of the will of the accused. OTHER INSTANCES FOR HOMICIDE AND OTHER CRIMES Q: Supposing, with intent to kill, the accused pulls out a gun then points it at someone, what crime is the accused liable for? Attempted homicide Q: Supposing, with intent to kill, the accused fires a gun at someone but misses, what crime is the accused liable for? Attempted homicide

Q: Supposing, using the same set of facts, but without the intent to kill, what crime is the accused liable for? - for pulling out the gun and pointing it = grave threat - for firing the gun = illegal discharge of firearm (obsolete; must be deleted) Q: Supposing, with intent to kill, the accused fires a gun at someone, then accused leaves thinking that the victim is already dead. The accused did not know that he missed because the victim played dead. What crime is the accused liable for? Attempted homicide, attempted because there was no wound, but there was still intent to kill. What is important is that there was no wound Q: Supposing, with intent to kill, the accused fires a gun at someone, then accused leaves thinking that the victim is already dead. The victim is hit but it is not fatal or mortal. What crime is the accused liable for? Still Attempted homicide, because what is important is the extent or gravity of the wound. (People v. Orinaga) Q: suppose a sales lady in the department store, place the jewelry inside her bag, but the jewelry was recovered by the security guard, crime? Consummated qualified theft Q: will recovery affect the stage of the commission? No Q: Suppose the sales lady, voluntarily returned, crime? Still qualified theft.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Taking consummates the crime Q: suppose the sales lady, sold the jewelry and used the money, crime? Estafa Q: suppose the sales lady, sold the jewelry and returned the money at 6pm? Frustrated Estafa Q: suppose 2 crew members discovered the presence of a stow away and they want to eliminate the stow away, so they decided throw the stow away in the sea, where there is sharp object, but after you leave, a fishing vessel was there to help the stow away, there was no wound, crime? Frustrated murder INTENT TO KILL Q: 3 armarlite shots neighbor but did not hit? Attempted Q: distinguish from illegal discharge of firearm No intent to kill Q: distinguish from grave threat? There is intent to kill Q: suppose there are 99 wounds, but none was mortal? Attempted Q: what is an overt act? Something you see, feel, touch (do not relate to criminal offense at first)

Article 7 Q: What are light felonies? Light felonies are infractions of law which have the punishment of arresto menor or a fine not exceeding 200 pesos  General Rule: Light felonies are punishable only when they have been consummated Reason: involves insignificant moral and material injuries; if not consummated, the wrong done is so slight that a penalty is unnecessary  Exception: Light felonies committed against persons or property are punishable even if in the attempted or frustrated stage Reason: presupposes moral depravity  For light felonies, the only ones who can be held liable are the principals and accomplices.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 For grave or less grave felonies, those who can be held liable are principals, accomplices and even accessories, because the degree of the penalty to be imposed depends on 3 factors: (1) stages of execution (2) the degree of participation (3) the presence of attending circumstances Q: When punishable? Only when consummated Q: Is this absolute? No. If against persons or property Q: Reason…. Q: Who shall be criminally liable? Principals Accomplices NOT ACCESSORIES ^Penalty for accomplices -- one degree lower (censure) ^Penalty for accessories – two degrees lower (WALA NANG LOWE PA. KAYA NGA HINDI LIABLE ANG ACCESSORIES) Q: Who is a principal? An Accomplices? An Accessories?

Article 8 Q: what is conspiracy? - Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it - Proposal exists when the person who has decided to commit a felony proposes its execution to some other person or persons General rule: Conspiracy and proposal to commit a felony are not punishable Reason: because they are mere preparatory acts (Reyes) Exception: Conspiracy and proposal are punishable only in the cases in which the law specially provides a penalty thereof Q: give an example of conspiracy & proposal Q: the effects of conspiracy

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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There will be collective responsibility Q: effect of non-establishment of conspiracy? Accused will be liable only to the extent of participation Q: if established? Collective responsibility – act of one, act of all Q: degree of evidence needed to prove conspiracy? NOT beyond reasonable doubt Sufficient that the act is closely related to the crime/felony intended to commit Q: is it necessary that each participate? No. They must have common criminal design Q: what do you mean by common criminal design? Q: what is implied conspiracy? Q: from what factors may you imply conspiracy? Acts and words before and after the commission of the felony Q: is it enough that there is an agreement to commit felony? No. they must execute the overt act Q: how would you know if community of purpose exists? From the acts and remarks of the accused There must be unity of criminal though BEFORE, DURING, AFTER -- acts of each of the accused may be separate, independent of each other but must show close personal association; closely related to each other, there is coordination. Q: A B C D E (robbers) agreed and decided to commit bank robbery. A stayed in the getaway car 100 meters from the bank; B look-out C disarm the security guard D & E commit robbery. E shot to death the bank manager. Will A be liable for the death? YES. There is conspiracy. Act of 1, act of all Q: 1, 2, 3, 4, 5 met in safe house discussed, agreed and decided to commit robbery. When they were about to rob the bank, they saw the police around the bank. Liable? No. Mere conspiracy not punishable Q: 5 members of army decided to commit coup d etat, met in safe house to discuss plan, liable? Yes. Conspiracy to commit coup d etat is punishable Q: distinguish conspiracy as a felony and as manner of incurring criminal liability. FELONY – RPC punishes mere conspiracy

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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LIABILITY – There must be over act Q: 1, 2, 3, 4, 5, agreed to commit a felony when about to meet the next morning. 5 did not arrive for emergency purposes. 1, 2, 3, 4 commit the felony and was caught. Is number 5 liable? No. He is not a conspirator. A conspirator must agree, decide and execute the over act 5 was not present Q: suppose 5 drove for 1, 2, 3, 4 but went home early. Liable? Yes. Driving already an overt act Q: suppose 5 was not the driver, but he was sittig in front of the van, then after alighting went home, liable? No. There is no overt act (pasahero lang siya sa van) ^General Rule – if not present in the scene of the crime – NO liability ^Exceptions – presence is to provide for moral support or to ensure commission of the felony Cases of conspiracy punishable by law (i) Article 115 of the RPC – Conspiracy to commit treason (ii) Article 136 – Conspiracy to commit coup d’etat, rebellion or insurrection (iii) Article 141 – Conspiracy to commit sedition (iv) Article 186 – Monopolies and combinations in restraint of trade (v) Conspiracy to commit terrorism - under the Human Security Act (RA9372) (vi) Conspiracy to commit crimes under the Comprehensive Dangerous Drugs Act (RA 9165) Cases of proposal punishable by law (i) Proposal to commit treason (ii) Proposal to commit coup d’etat, rebellion or insurrection - there is no crime of proposal to commit sedition Q: What is the legal effect of the presence of conspiracy? - “the act of one is the act of all”, meaning everyone who participated is equally liable; there is collective responsibility  For conspiracy, take note of the word agreement  Agreement may be oral or written, express or implied

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 34 of 139 Atty. Maximo Amurao

 It is the burden of the prosecution to prove the existence of conspiracy through circumstantial evidence unless there is a confession or written agreement, which is seldom because criminals will usually deny their participation or the commission of the crime Q: What is Implied Conspiracy? - Implied conspiracy can be inferred from the acts of the perpetrators/accused before, during or after the commission of the crime Q: How about the use of words, remarks or language of the perpetrators, can conspiracy still be ascertained or established? YES Q: May there be conspiracy when the perpetrators perform separate, distinct and independent acts in the commission of a crime? YES Q:May there be conspiracy even if other conspirators do not know who the other conspirators are? YES *In People v. Manlolo, it was held that there was implied conspiracy on the part of the accused because they were acting in concert, one performing an act, the other doing another act, all aimed at the same object Rule on determining whether there is conspiracy - based on the (1) acts done before, during or after the commission of the crime, or, based on the (2) words, remarks or language used before, during or after the commission of the crime, it is necessary to determine after these acts were done whether the conspirators had the following: 1. concerted action 3. community of purpose 2. common criminal design

4. joint criminal objective

- all of which are geared towards the attainment of the felony or crime Suggested cases for conspiracy on this rule - People v. Salcedo; People v. Briones; Medija, Jr. v. Sandiganbayan Q: Supposing, only minor acts were done, will the actor still be liable? YES Q: Supposing, there was no conspiracy, what will happen? The perpetrators of the crime will be individually liable depending the extent of the degree of each one’s participation In People v. Agapinay, the SC ruled that there was no conspiracy in commission of the murder because the incident was only a spur of the moment or in this case, a “chance stabbing”, which cannot be considered conspiracy, thus they were held individually liable, some as principals and some as accomplices only

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 35 of 139 Atty. Maximo Amurao

Q: Supposing, there was only mere presence of a person when the crime was being committed, will he be liable? NO, that person not participating shall not be liable because he did not perform any overt act; there should be an overt act to establish the participation and liability of a person Q: Supposing, the person’s presence when the crime was being committed was to provide was to provide moral support, or to persuade the participants from performing the acts constituting the crime, will he be liable? YES, in both cases the person shall be held criminally liable In order to hold someone criminally liable, in addition to mere presence, there should be overt acts that are closely-related and coordinated to establish the presence of common criminal design and community of purpose in the commission of the crime. In People v. Taaca, the SC ruled to acquit Regalado because there was no evidence to prove that Regalado assisted his brother Herminio in the killing of Alfredo Gabuat; there was no proof to show that Regalado’s presence was accompanied by overt acts for the commission of the crime and that there was no proof of conspiracy between the Taaca brothers. In People v. De La Cruz, the SC also ruled that the mere presence of the Galaw-eys were not enough to prove that they conspired to the commission of the crime despite the fact Galaw-ey had a grudge against one of the victims; his participation in a conspiracy cannot be assumed especially when no acts by the Galaw-eys proved to be connected with the crime. In People v. Manero, however, the SC ruled that even though the accused-appellants were not present in the actual commission of the crimes, it was established that they met in an eatery and conspired to liquidate communist sympathizers; therefore they were still held criminally liable. Q: Supposing, one person desisted from participating in the actual crime and instead decided to stay inside the get-away car to wait for the others, is he liable? YES, he is still liable despite desistance to participate in the actual crime because he can still assist the others with the escape using the get-away car Q: Supposing, while committing the crime of robbery, an additional crime was committed that was not part of the original plan, eg. homicide; can all the participants be convicted of the crime of robbery with homicide, even though some of them performed very minor acts (i.e. look-outs or drivers, etc)? YES, they can all be held liable for that same crime, because it is not required that all the participants perform each and every detail in the commission of the crime; as long as the acts performed are closely coordinated and that they have the same criminal purpose. Q: mere presence will one be a co-conspirator? No Q: presence to give moral support? Liable

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Acts Implied conspiracy

Page 36 of 139 Atty. Maximo Amurao

before

separate and distinct

concerted action

during

closeness association, Coordination, personal association with each other

common criminal design

words, after remarks

community of crimes joint criminal objective

Article 9 Q: How do you classify felonies? According to Penalty 1. Grave Felonies – those that the law attaches the capital punishment or penalties that are afflictive based on Article 25 of the RPC 2. Less Grave Felonies – those that the law punishes with penalties whose maximum periods are correctional 3. Light felonies – infractions of law that are punishable by arresto menor or fines

 Illustration: Death

Grave felonies

Reclusion Perpetua

afflictive penalties

Reclusion Temporal Prision Mayor Prision Correccional

Less grave felonies

Arresto Mayor

correctional penalties

Suspension Destierro Arresto Menor

Light felonies

Fines

light penalties

Public Censure

 The classification in Article 25 of the RPC assumes significance on Article 91 of the RPC on Prescription:

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 37 of 139 Atty. Maximo Amurao

(i) Prescription of a crime – refers to the expiration of a certain period, after which a person cannot be prosecuted for the crime anymore; contemplates that there has been no judgment of conviction yet (ii) Prescription of penalty – refers to the expiration of a period of time after which the penalty imposed by the courts cannot be enforced anymore; contemplates that there has been a final judgment by the courts Q: Does classification applies to special laws? No

Article 10 - provisions of the Revised Penal Code shall not be applied with of violations of special laws, but if a special law is silent in terms of a penalty for example, the absence shall be provided by the Revised Penal Code.  But generally: - for violations of the RPC = what law governs? the Revised Penal Code - for violations of special law = what law governs? Special penal laws Examples of provisions in the RPC that have suppletory application pursuant to Article 10 of the RPC 1. Article 100 – Civil Liability; there are two sides of crime, the criminal liability and the civil liability, the former imposes the penalty prescribed for the crime, the latter is for the payment of damages 2. Article 22 – Retroactive Application; the law becomes favorable to the accused as long as he is not a habitual criminal and is convicted by final judgment 3. Article 17 – Principals; are classified into three: (1) by direct participation, (2) by inducement, (3) by indispensable cooperation 4. Article 45 – Forfeiture of instruments or tools used in the commission of the crime 5. Article 39 – Subsidiary imprisonment for failure to pay fines 6. Article 8 – Conspiracy; in violation of the Human Security Act(RA9372), Dangerous Drugs Act, sec 26 only (RA9165), Bouncing Checks Law (BP22) *If the Death Penalty was not abolished, it will also be given suppletory application allowed. Q: Circumstances affecting criminal liability? There are five circumstances affecting criminal liability: (1) Justifying circumstances; (2) Exempting circumstances; (3) Mitigating circumstances; (4) Aggravating circumstances; and (5) Alternative circumstances. NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 38 of 139 Atty. Maximo Amurao

There are two others which are found elsewhere in the provisions of the Revised Penal Code: (1) Absolutory cause; and (2) Extenuating circumstances. In justifying and exempting circumstances, there is no criminal liability. When an accused invokes them, he in effect admits the commission of a crime but tries to avoid the liability thereof. The burden is upon him to establish beyond reasonable doubt the required conditions to justify or exempt his acts from criminal liability. What is shifted is only the burden of evidence, not the burden of proof.

Article 11 Q: What is a justifying circumstances? Justifying Circumstances are those where the act of a person is said to be in accordance with law so that such person is deemed not to have transgressed the law and is free from criminal and civil liability Q: Is there civil liability? Generally no, except in Article 11 (4) Q: What element of voluntariness is lacking? Intent; without intent, there is no voluntariness; without voluntariness, there is no felony; without a felony, there is no criminal liability because there is no crime Article 11, par 1 – Self-Defense Q: What are the Elements of Self-defense? 1. Unlawful Aggression on the part of the offended party 2. Reasonable Necessity of the Means Employed by the person defending 3. Lack of Sufficient Provocation on the part of the person defending Q: What may be the subject of self-defense? Person, right, property, honor or home (i) defense of person – there is danger to the life or limb of the person (ii) defense of rights (iii) defense of property – should be coupled with danger to the person (iv) defense of honor Q: Burden of proof in self-defense? burden lies with the defense Q: How is self-defense established? through clear and convincing evidence Q: Is the accused required to admit having killed the victim?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 39 of 139 Atty. Maximo Amurao

YES; the accused has to admit having killed the victim before self-defense can be invoked by the accused * It is the obligation of the accused to prove self-defense through clear and convincing evidence; if the evidence is not clear, there will be a conviction  When all the elements of self-defense are present = the person defending himself is free from criminal liability and civil liability  When only a majority of the elements are present = privileged mitigating circumstance, provided there is unlawful aggression  When only a majority of the elements are present, there is an incomplete self-defense, but it is still necessary to have the element of unlawful aggression, because it is the most important element Unlawful Aggression - an indispensable element - a sudden unprovoked unlawful attack that exposes a person’s life or limb to actual, real, imminent danger; mere threatening, imagined or speculative danger is not enough  When there is no unlawful aggression, there is no need to defend oneself; when there is no need to defend oneself, there is no need for a reasonable defensive act; when there is no need for a reasonable defensive act, there is no need for reasonable means to prevent or repel something; therefore, without unlawful aggression, everything else will be erased  Because unlawful aggression produced a danger, there comes a need to eliminate that danger; that need is a response impelled by self-preservation; the means used to eliminate the danger should be reasonable and the means needed to be employed can be determined based on the extent of the unlawful aggression Q: Supposing, you wrested the knife from a robber. If he is still trying to get back the knife, there is unlawful aggression, because unlawful aggression is continuing if the attacker is trying to regain control over the situation ^The first principle in all criminal cases is that: “the accused will always be presumed innocent”  In the constitutional provision on presumption of innocence, it can easily be overthrown by contrary evidence, but it is different in criminal cases  The presumption of innocence principle, of all disputable presumptions, is the strongest because to overthrow it, the Court requires that the law proves the guilt of an accused beyond reasonable doubt  The burden or duty to prove guilt lies with the prosecution or the government and they should introduce evidence beyond reasonable doubt; the prosecution should rely on the strength of its own evidence and should not depend on the evidence of the defense; these principles, however, will change NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 40 of 139 Atty. Maximo Amurao

when the defense invokes, self-defense, defense of a relative, or defense of a stranger, because the accused must always admit first the fact of killing the victim, thus the burden is lifted from the prosecution and shifts to the defense  If the evidence for both sides is weak, the accused will be acquitted  The prosecution’s weakness is cured when the defense invokes, self-defense, defense of a relative, or defense of a stranger because there is an admission of the killing  If the evidence of the defense is not clear and convincing, conviction will be sure, as sure the sun rises at the East  The admission involved is only an admission of facts, backed up by clear and convincing evidence; it not an admission of guilt, because if so, the Court can stop the prosecution and render judgment  The Court should put itself in the shoes of the accused during the time when the accused allegedly defended himself Q: Supposing, after you wrested the knife from the robber (who is the obvious aggressor in this case), the robber/aggressor runs away, is there still unlawful aggression? NO, when the aggressor flees unlawful aggression no longer exists; and if you still kill the aggressor in this situation, self-defense cannot be invoked anymore Q: Supposing, using the same facts mentioned earlier, but the retreat of the aggressor was with the purpose to take a more advantageous position or to get a more effective weapon, to insure the success of his attack, is there still unlawful aggression? YES, when the purpose of retreating is to take a more advantageous position or to do something to insure the success of his attack, unlawful aggression is continuing, therefore the danger is still continuing; in this case, the accused or the person defending himself, does not have to wait for the aggressor to get another weapon Q: Supposing, there is an agreement to fight or a challenge to fight was accepted, is there unlawful aggression on one of the parties? NO, there is no unlawful aggression in agreements to fight because self-defense cannot invoked since both parties are assailant and assaulted Q: Supposing, using the same facts above, there is agreement, but one of the parties attacks the other even before the agreed time arrives, is there unlawful aggression? YES, when the attack is made ahead of the time agreed upon, there is unlawful aggression Q: Supposing, the aggressor used a toy gun and the person defending himself killed the aggressor, believing that the gun was real, is he still criminally liable? NO, assuming clear and convincing evidence is provided, and that the accused believed the weapon/gun to be real, then honest mistake of fact while in self-defense can be invoke

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 41 of 139 Atty. Maximo Amurao

 Reasonable Necessity of the Means Employed - there is a continuing necessity to eliminate the danger - involves two elements: 1. necessity for the course of action, necessity to eliminate danger 2. necessity of the means employed to prevent or repel that danger  Both should be reasonable  It is not necessary to have material equality or material commensurability between the danger and the means employed to prevent or repel that danger  In determining reasonable means, the some facts and circumstances can be considered as factors, such as: 1. emergency to which the person defending himself has been exposed to 2. presence of imminent danger 3. impelled by the instinct of self-preservation 4. nature of the weapon used by the accused compared to the weapon of the aggressor 5. size and/or physical character of the aggressor compared to the accused and other circumstances that can be considered showing disparity between aggressor and accused Factors: age, size, location, other circumstances, character or nature of weapon, physical character, reputation Q: What is Lack of Sufficient Provocation? - sufficient provocation should come from the person defending himself/accused - sufficient provocation should immediately precede the aggression - Insulting another or committing oral defamation is considered sufficient provocation - a challenge to fight is considered sufficient provocation Q: When is provocation sufficient? -proportionate to the act of aggression and adequate to stir the aggressor to its commission Q: Who has the duty to prove elements of self-defense? Accused Q: What is the effect of claim of self-defenses on burden of the prosecution? Shifting the burden of proof Prosecution is relieved of its duty to prove guilt of accused

Q: May accused be convicted even if evidence of prosecution is weak? Yes, if the self-defense not established by clear and convincing evidence Q: does admission of guilt amounts to confession of guilt? No. Only an admission of fact Accused must establish the element which is missing to prove that he is not guilty Q: What are the legal effects

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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Confession of guilt – no necessity for trial, except to prove mitigating & aggravating circumstances Admission of fact – necessity for trial Q: May there be self defense even without unlawful aggression? No. UA is the foundation Q: how about in incomplete self-defense? No. UA is always an indispensable element of self-defense, whether complete or incomplete Through reasonable means

Reasonable (needs to eliminate the danger) Under instinct of self-preservation

(Life & Limb) There is danger (actual, real, imminent ) – not merely imaginary, fanciful, false

Unlawful Aggression,- sudden, unprovoked, illegal attack Defending Property  Defense of property should be coupled with danger to the person defending oneself; if there is no danger to the person or the person's life or limb, defense of property cannot be invoked. Q: In defending property, when is killing the aggressor justified? *Necessity of unlawful aggression (upon the person defending his property) *Must be coupled with an attack on your own person *Such a case, you are not defending your own property, but your own person? Defense of OWN property not OF property Q: Suppose hitting only the lower portion of the body, not killing the aggressor, defense of property, may be claimed? YES. As long as not to the extent of killing ^pag napatay mo, dapat may assault on your own person, right to life is superior to right to property Q: Supposing, using a knife, someone slashed your bag to get its contents, after which you were able to wrest the knife from him, and you stabbed him, causing him to die, can you invoke defense of property? NO, because there was no imminent danger to your life or limb since you already have control of the knife

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 43 of 139 Atty. Maximo Amurao

Q: Supposing, you caught some people inside your house in the act of stealing your household items, assuming you have a gun, can you use the gun and shoot at them or even kill them?  YES (according to Prof. Amurao, you can even stage the crime scene to your favor) because if you do not shoot them, they will surely use their weapons against you and even try to kill you anyway. It’s better to hit them first. (Defense of home, check Reyes) Q: Supposing, a prostitute disagrees to have sexual intercourse with someone, but the latter still forces his way with the prostitute with carnal knowledge, tries to rape her, then the prostitute takes out a knife in her bag and stabs the guy, can she invoke defense of honor despite being a prostitute? YES, a prostitute is still entitled to the right of defense of honor and the knife was a reasonable means used. Defense of home Without assault of person, justified? NO. Q: In defending your car being stolen, fired at the tires, which hit a by-stander, liable? No. Justified for all consequences of the act – relate to art 4 (par1) not committing a felony Q: example of unlawful aggression against honor -slap on the face -repelled by revolver, reasonable means? No (no rational equivalence) *Use of the bolo against an unarmed aggressor? Depends on the circumstances Such as the size of the aggressor, built, reputation or accessibility of other means Factor of time interval Must be simultaneous with the attack or with appreciable interval of time Q: what is continuing danger? Q: what is continuing aggression? Q: example of defense of honor? Q: example of agreement to fight? Q: libel against libel, justified? Yes. Q: A and B are long standing enemies. Because of their continuous quarrel over the boundaries of their adjoining properties, when A saw B one afternoon, he approached the latter in a menacing manner with a bolo in his hand. When he was about five feet away from B, B pulled out a revolver and shot A on the chest,killing him. Is B criminally liable? What crime was committed, if any?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 44 of 139 Atty. Maximo Amurao

The act of A is nothing but a provocation. It cannot be characterized as an unlawful aggression because in criminal law, an unlawful aggression is an attack or a threatened attack which produces an imminent danger to the life and limb of the one resorting to self-defense. In the facts of the problem given above, what was said was that A was holding a bolo. That bolo does not produce any real or imminent danger unless a raises his arm with the bolo. As long as that arm of A was down holding the bolo, there is no imminent danger to the life or limb of B. Therefore, the act of B in shooting A is no justified. Article 11(2) – Defense of Relatives Q: Who are the relatives contemplated?(in the following order) - spouse - ascendants - descendants - brothers or sisters (legitimate, natural or adopted) - relatives by affinity in the same degrees (mentioned above) - relatives by consanguinity within the fourth (4th) civil degree  applies the same concept of unlawful aggression and reasonable necessity of means employed, as contemplated in Art. 11(1) on self-defense   Spouse – should be the legitimate husband or wife  common law marriages are not included; the common law spouse is considered a stranger  Who can determine being legitimate? the Court; the validity, legality, illegality of the parties cannot be determined by themselves Q: Supposing a husband defends a common law wife by killing an attacker, can he invoke defense of relative? NO, but he may invoke defense of a stranger Q: Supposing a husband defends a second wife by killing an attacker; considering that the marriage between him and his first wife is not null and void, thus making his second marriage bigamous, can he still invoke defense of relative? YES, the presumption is that all marriages are legal and valid. Even in the absence of a judicial declaration of nullity (JDN) of the first marriage, the second marriage is considered valid, thus defense of relative can be invoked. Q: Supposing the husband and his first wife are on legal separation, then he defends her from an attacker, can he invoke defense of relative? YES, because there is no JDN to say that their marriage is null and void. Q: Supposing, husband and wife successfully annuls their marriage and they have secured a JDN on the grounds of psychological incapacity, then incidentally, he defends her from an attacker, can he invoke defense of relative?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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NO, because there is no marriage anymore between them; the JDN, once it is approved by the RTC and is final and executory, it will have an effect wherein as if no marriage existed between the defender and the one defended; therefore, what can be invoked is defense of a stranger. Q: Supposing husband and wife has a pending case for annulment due to psychological incapacity of one of the parties, then incidentally, he defends her from an attacker, can he invoke defense of relative? YES, because there is no JDN that has nullified the marriage  Ascendants – includes parents, grandparents, great grandparents, even great(4x) grandparents  Descendants – includes children, grandchildren, great grandchildren, even great(4x) grandchildren  What do ascendants and descendants have in common? They are blood relatives Q: Supposing, a great, great, great, great grandfather is attacked and is defended by his illegitimate grandchild, can the grandchild invoke defense of relative? YES, because the no distinction in the Revised Penal Code whether the descendant should be legitimate or illegitimate; when the law does not distinguish, the courts cannot distinguish Q: Supposing, a father defends his adopted daughter from an attacker, can he invoke defense of relative? NO, defense of relative cannot be invoked because the law does not contemplate adopted children as descendants and also does not contemplate adoptive parents as ascendants, to qualify as relatives contemplated under Art. 11(2) RPC Brothers and Sisters or siblings 1. legitimate – siblings of the same parents who are married 2. natural – siblings, who at the time of their conception with the same parents, the parents are not married but are not disqualified by any legal impediment to marry each other; if parents are disqualified to marry by any impediment, the child is illegitimate 3. adopted – there should be a judicial proceeding in court validating the adoption in order to be considered under defense of relative as contemplated; an extrajudicial proceeding on the adoption is not enough  Relatives by affinity in same degrees - relatives by marriage  In same degrees – applicable to ascendants, descendants, siblings, even grandparents of one’s spouse, i.e. mother-in-law, father-in-law, brother-in-law, sister-in-law, etc.  Relatives by consanguinity within the fourth (4th) civil degree - relatives by blood     

Each generation is one degree One’s parents are in the first (1st) degree One’s grandparents are in the second(2nd) degree One’s uncles and aunts are in the third (3rd) degree One’s first cousins are in the fourth (4th) degree

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 46 of 139 Atty. Maximo Amurao

 Illustration: parent (2nd degree)

(1st degree) daughter-in-law-----son

child

(3rd degree) daughter-----son-in-law

child (4th degree)

(starting point, eg. this is you)  Requisites for Defense of Relatives - aside from (1) unlawful aggression and (2) reasonable necessity of the means employed to prevent or repel the aggression, there is 3rd requisite: if there was provocation arose from the relative being defended, the person defending should have had no part in that provocation Q: Supposing, your brother provoked someone and started a fight, when you came to his aid, you did not know that it was your brother who started the fight, but when you saw him, his enemy was on the verge of stabbing your brother, so you shot his enemy, can you effectively and validly invoke defense of a relative? YES, because at that very moment the life and limb of your brother was in actual, imminent and real danger; there was no time for you to investigate what really happened. The person defending has the right to act on mere appearance (Amurao) Q: Suppose man and woman living together without benefit of marriage, can claim self-defense? No. Common law spouse not contemplated They are entitled to claim defense of stranger Q: Husband and wife, Ph citizens married in hongkong. After marriage, discovered they were 1st cousins, solemnizing officer in hongkong not authorized, can they claim defense of relative? Yes. Absent a judicial declaration, marriage presumed existing Q: Suppose the action for judicial declaration is pending, can they claim defense of relative? Yes. There is no judicial declaration yet.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 47 of 139 Atty. Maximo Amurao

Q: suppose the lower court issued a decision? Not anymore. As if no marriage. Can claim defense of stranger Q: suppose what was filed was legal separation, and there is a decree of legal separation, can claim defense of relative? Yes. Legal separation doe not terminate marriage. Q: who are the descendants covered? Q: A killed a person to defend the honor of B, and illegitimate, defense of relative? Yes. The law does not distinguish Q: Who are the other relatives covered? Q: half blood brothers and sisters? Yes Q: Adoptive father defended the adopted daughter? No. (not contemplated by law) Q: stepbrother killed accused to defend life and honor of a stepsister? Yes. Relationship by affinity (brother or sister by reason of marriage) Q: relative by consanguinity, up to what extent? 4th degree Q: last element in defense of relative? Defense of stranger What are the elements? Give an example Who are strangers? - Anyone not enumerated and those not contemplated under Article 11(2)  Requisites: - same concept of unlawful aggression and reasonable necessity of the means employed to prevent or repel the aggression; aside from those two there is a 3rd requisite: the person defending should not be induced by revenge, resentment, or other evil motive Article 11(4) – Avoidance of greater evil or injury - Requisites: 1. the evil actually exists 2. the injury feared be greater than that done to avoid it 3. there be no other practical and less harmful means of prevention  The damage to another contemplated are: (Reyes) NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 48 of 139 Atty. Maximo Amurao

-injury to persons - damage to property  One’s own life is more important than anyone else (Amurao)  The greater evil should not be brought about by the negligence or imprudence of the person who committed the offense Q: criminal liability? No Q: Civil liability? Yes, should be borne by the persons benefited Example : Sinking ship -- jettison Article 11(5) – Fulfillment of Duty/Lawful Exercise of Right or Office - Requisites: 1. that the accused acted in the performance of a duty or in the lawful exercise of a right or office 2. that the injury caused or the offense committed be the necessary consequence of the due performance of duty or lawful exercise of such right or office  The fulfillment of duty must be done carefully, with due performance; no carelessness, no negligence/imprudence, no abuse  The exercise of public office was committed with negligence and abuse of authority = are not applicable, the exercise must be lawful! Q: Supposing, a raiding team tasked to confiscate drugs broke the class cabinets in search of the drugs, was there abuse of authority? YES, because due performance of duty should have been employed Q: Can this be invoked if there was negligence? No. Q: if there is abuse of authority? No Q: Prison guards escorting prisoners on the way to the court, one prisoner escaped, despite warning shots, prisoner still ran away, guard shot the prisoner at the back who died, liable? No Q: warrant of arrest, NBI to arrest criminal and bring before the RTC of Manila. When the officers are at the house of the accused, the accused refuse to open the door, NBI forcibly open and destroyed the doors, liable? No.

Q: proceeded directly without announcing their authority, liable? Yes. There is abuse, exceeding authority, did not follow procedure

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 49 of 139 Atty. Maximo Amurao

Q: example of lawful exercise of a right Doctrine of self help Article 11(6) – Obedience to a lawful order by a superior officer -Requisites 1. that an order has been issued by a superior 2. that such order must be for some lawful purpose 3. that the means used by the subordinate to carry out said order is lawful  When the order is not for a lawful purpose, the subordinate who obeyed it is criminally liable  The subordinate is not liable for carrying out an illegal order of his superior if he is not aware of the illegality of the order and he is not negligent  Battered Woman Syndrome (BWS) - refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Republic Act 9262: AntiViolence Against Women and Children Act)  Battery – refers to an act of inflicting physical harm upon a woman or child resulting to the physical, psychological or emotional distress (RA 9262) Q: Who can verify or confirm whether a woman suffers from Battered Woman Syndrome? Only a certified psychologist or psychiatrist can prove the existence of Battered Woman Syndrome in a woman Q: What is the legal effect of the proof of existence of BWS in a woman? Those found by the courts to be suffering from BWS do not incur criminal and civil liability notwithstanding the absence of any of the elements of the justifying circumstance of selfdefense under the Revised Penal Code (Section 26, Republic Act 9262)  The legal effect of BWS is of the same level with the justifying circumstances in Art.11 of the RPC, except par. 4.  Even without unlawful aggression on the part of the deceased husband or male partner, the act of the woman shall still not incur criminal and civil liability Q: Who are the women who can invoke Battered Woman Syndrome? - wife - any woman having a sexual relationship with a man - girlfriend - including dating women, if relationship is intimate - former wife

- common law wife

- former wife whose marriage with her has been annulled by a judicial declaration of nullity (JDN)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 50 of 139 Atty. Maximo Amurao

-children  It not necessary that the woman suffering from BWS is still in a relationship with the man that she killed or harmed. Doctrine of Stand your ground when in the right - The law does not expect you to run away - When in the right, defend your right or position, defend yourself - A total opposite of the old doctrine of retreating to the wall, where the law expects you to run away and avoid defending yourself Q: What is the legal effect of BWS? No criminal liability No civil liability Q: May a battered husband claim it as a defense? No. The law says only woman Q: What is a dating relationship? Q: You break up with your gf, she was emotionally & psychologically wrecked, is this battery? Yes. (hayden kho case) Q: Protection Order under RA 9262? -prevented from living in same community or house with the battered woman -it must be issued by court or baranggay Q: Can you file violation of RA 9262 together with parricide or physical injuries? Yes. RA 9262 without prejudice to the filing of any other civil or criminal action Q: woman suffering from BWS, killed husband, liable for parricide? No. it is not necessary that UA exist Q: how will court determine BWS? Certified psychiatrist or psychologist

Article 12 Q: What is an exempting circumstance? - a circumstance if present during the commission of the crime will free the accused from criminal liability - there is a crime, but there is no criminal

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- burden of proof to prove the existence of an exempting circumstance: lies with the defense

Q: Distinguish justifying from exempting Justifying - there is neither a crime nor a criminal - the act is justified and the actor is not criminally liable - there is no civil liability except in paragraph 4

Exempting - there is a crime but there is no criminal - the act is not justified but the actor is not criminally liable - there is civil liability except in paragraphs 4 and 7

Article 12(1) – Imbecility and Insanity - an imbecile or an insane is entitled to be exempted, unless the latter acted during a lucid interval  Imbecile – one who is deprived completely of reason or discernment and freedom of will when committing a crime; exempted in all cases; mentality is comparable to a child 2-7 years old  Insanity – not so exempt because during a lucid interval, the person can act with intelligence Q: what is permanent sickness? Imbecility Q: Which is not permanent? Insanity Q: Insanity before the commission of the crime, legal effect? Not exempt During – exempt After – not exempt, but proceeding will be suspended *insanity must be at the time of the commission of the offense unless is proven to subsist until commission Q: What is the test for the degree of insanity for it to count as an exempting circumstance? The tests of the degree of insanity are the existence of: 1. complete deprivation of intelligence 2. total deprivation of freedom of will

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 52 of 139 Atty. Maximo Amurao

 Mere abnormalities of the mental facilities are not enough Q: Supposing, a man suddenly just stabs another person, he then began to run away because he knew he committed a crime, then as the authorities tried to catch him, as they got closer to him, he ran even faster, can he invoke insanity as an exempting circumstance? NO, the fact that he was running away was an indication that he was not deprived of intelligence because he knew he did, and by running faster to avoid the authorities was an indication of not being totally deprived of his freedom of will because of his intention to escape Q: Who has the Burden to prove insanity: lies with the defense, (According to Reyes, through circumstantial evidence if clear and convincing)  Evidence of insanity must refer to the time preceding the act or at the very moment of execution Q: Supposing, the offender becomes insane only after the commission of the crime or during trial, can he still invoke the exempting circumstance of insanity? NO, because what is counted and considered in determining whether there was insanity, is the time preceding the act or the moment of execution  Feeblemindedness – not exempting because s/he can still distinguish right from wrong; not equivalent to insanity  Somnambulism or sleepwalking – must be clearly proven to be considered an exempting circumstance under this Article; acts of the sleepwalker should not be voluntary  Malignant malaria – can cause insanity, therefore, can be considered as an exempting circumstance under this Article  Basis for exemption – complete absence of intelligence Temporary Insanity – yes, exempting Article 12(2 & 3) – Minority (repealed by Republic Act 9344 or the Juvenile Justice and Welfare Act)  RA 9344, Section 6 – a child 15 years of age or below at the time of the commission of the crime shall be exempt from criminal liability but will undergo an intervention program; a child above 15 years of age or below 18 years of age shall be exempt and be subjected to an intervention program unless s/he acted with discernment in which case such child will be subject to the appropriate proceedings in accordance with this Act  Children falling under this Act are referred to as a child in conflict with the law; normally minor offenders are referred to as the accused, juvenile delinquent, prisoner, respondent, etc. but it is contemplated that these terms refer to persons who have committed crimes; RA 9344 prohibits the use of these terms to refer to minor offenders, only the abovementioned term can be used  For a child in conflict with the law – there is a presumption of the absence or lack of intelligence

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Offenders are free from criminal liability but are still civilly liable  The legal effect of the exemption: the child shall be given to the custody of the parent or guardian; in their absence, the custody is given to the following, according to their order of availability: (a) registered non-governmental organization (b) registered religious organization (c) member of the Barangay Council for the Protection of Children (BCPC) (d) local office of the Dept. of Social Welfare & Development (DSWD) (e) national office of the Dept. of Social Welfare & Development (DSWD)  Another effect is that the minor is subjected to an intervention or diversion program which involves: seminars and classes on family and mediation, skills improvement, emotional management, etc.; other diversion programs are for reformation and rehabilitation, in which the public prosecutor usually initiates the recommendation for the minor to be subjected under the program Q: What is a child at risk?  General Rule for minors above 15 or below 18 years of age: exempted, because the presumption is that they acted without intelligence  Exception: the minor acted with discernment  How is discernment determined? (Reyes) (1) manner of committing the crime (2) conduct of the offender  Discernment can also be determined by the words uttered by the minor attendant to the commission of the act, eg. the words, “Buti nga sa’yo!”, which indicates an expression of accomplishment, victory or satisfaction When the case has been decided by the court…  If the judgment is an acquittal, the decision shall immediately take effect without suspension, and the decision shall be promulgated and pronounced  What is the significance of promulgation? - it is full of significance; the decision is read in open court - immediately after the reading the judgment of acquittal becomes immediately final and executory, which cannot be subject for any motion of reconsideration, hence the decision cannot be either reversed or modified  If the judgment is conviction, the promulgation of the decision and the sentence shall be suspended by the court; the minor shall be ordered to undergo intervention, which shall have the following effects:

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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(a) If after the intervention, there is reform on the part of the minor, the minor shall be returned to the court to dismiss the criminal case and dismiss the charges against the minor (b) If after the intervention, there is no reform, the minor shall be returned to the court for the promulgation of the decision against the minor; then, the court shall either decide on the sentence or extend the intervention  Only when there is refusal to be subjected to reformation or when there is failure to reform can the child be subjected to criminal prosecution and the judicial system  Other effects of Republic Act 9344 (i) decriminalizes the sniffing of rugby by a minor (ii) decriminalizes the violation of a minor of the Anti-Mendicancy Law, which prohibits begging or beggars (iii) decriminalizes vagrancy and prostitution, punished under the RPC, when committed by a minor 15 years old or below; the minor will not be criminally liable (iv) criminal records of minors above 15 or below 18 years of age are kept confidential in order to protect the honor and reputation of the minor (v) exempts minors from the offense of refusing to acknowledge the fact that s/he had been involved or convicted in a criminal case before (vi) minors can deny under oath their criminal involvement or conviction; cannot be charged with perjury or falsification or misrepresentation, for concealing the criminal involvement or conviction; purpose: to give the minor a new lease in life and to prevent the stigma of conviction which extends in a long-term basis, i.e. in looking for job or protecting the families’ reputation (vii) retroactive application of RA 9344 on persons who were convicted and are currently serving time for crimes they committed when they were minors above 9 or below 15 years of age when they committed the offense, because minors who acted with discernment under this age bracket, were not exempted from criminal liability before under the RPC, but has already been repealed by RA 9344; their criminal liability is erased therefore they shall be released Q: Supposing, a 10-year old, who is apparently very intelligent, commits a crime, will he be exempted from criminal liability considering the high level of intelligence of the child? YES, he is still exempted; what is important is the age of the child at the time of the commission of the crime; it doesn’t matter whether the child was extremely intelligent  Status Offenses (under RA 9344) – refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts; these shall include curfew violations, truancy, parental disobedience and the like

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Status offenses when committed by a minor are punishable, but are not punishable anymore under RA 9344  Status offenses when committed by an adult are not punishable  The Dangers of Republic Act 9344 (Amurao) - can be abused or taken advantage of by crime syndicates that use minors as instruments for the commission of crimes - The effect of the liberal exemptions of RA 9344 – what will happen to the victims if the offenders, who are minors, will be exempted all the time? Victims will take the Filipino way = taking the law into their own hands  With reference to RA 9344, the Philippines is not yet ready for that kind of law. (Amurao)  Basis for the exemption of a minor: absence or lack of intelligence

Article 12(4) - Accident - Elements: 1. a person is performing a lawful act 2. the act is done with due care 3. causes an injury to another by mere accident 4. injury was done without fault or intention of causing it Q: What is an Accident? Q: What are the Requisites? Q: What are the Legal Effects of Accident? No civil liability No criminal liability Examples of exceptions Q: Driver with an expired license? NOT exempt Q:Not registered 1 year delinquent? NOT exempt- not lawful act With defective breaks, w/n Speed limits proper lane? Not exempt-fault or negligence Tires of car already worn out? Not exempt In tiptop condition, brand new tires? Not exempt Of 7 passengers in the car- overloading

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 56 of 139 Atty. Maximo Amurao

Right lane empty, overtook the car? Not exempt Left lane is for overtaking Overtaking on the left lane, hit a child who suddenly crossed the road? Yes, exempt. Absolutory cause (Art.247) Par.1 not exempt from criminal liability. There is a penalty-destierro. It is still an unlawful act.  If all the elements are present, the legal effect is that the accused shall incur no criminal liability and no civil liability  If not all the elements are present, Article 67 of the RPC will apply and the penalty prescribed is arresto mayor to prision mayor for grave felonies  There is negligence when = the accused tried to overtake another vehicle on the right side of the road because this is a violation of traffic laws  Speeding along the road is an example of an act done without due care  Basis for exemption – absence of intent Article 12(5) – Compulsion of Irresistible Force -Elements: 1. compulsion to commit the crime is by means of physical force or violence 2. physical force or violence is irresistible 3. the physical force or violence must come from a 3rd person Presupposes that a person is compelled by means of force or violence  Irresistible Force – degree of force which is external or physical force which reduces the person to a mere instrument and the acts produced are done without his will and against his will (Amurao)  Basis for exemption – absence of freedom Article 12(6) – Impulse of an Uncontrollable Fear - Requisites: (Reyes) 1. that the threat which causes the fear is of an evil greater than or at least equal to that which he is required to commit 2. that it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it  Presupposes intimidation or threat, not force or violence - Elements: 1. the existence of an uncontrollable fear 2. the fear must real and imminent 3. the fear of an injury is greater than or equal to that committed  All the elements must concur NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Basis for exemption - absence of freedom Q: What element of voluntariness is absent? Intent, Freedom Q; Par.6 Distinguish 6 and 5. Nature of threat –greater or equal? Difference between irresistible force and uncontrollable fear: Irresistible Force – involves the use of violence or physical force to compel Uncontrollable Fear – involves the use of threat or intimidation to compel Article 12(7) – Failure to Perform a Lawful Act Due to Lawful or Insuperable Cause - Elements: 1. an act is required by law to be done 2. that a person fails to perform such act 3. that the failure to perform such act was due to some lawful or insuperable cause  Failure to deliver arrested persons to the proper authorities due to problems regarding distance and transportation is a lawful or insuperable cause  A typhoon causes the failure to perform the lawful act is an insuperable cause  Basis for exemption – absence of intent  Absolutory Causes – those where the act committed is a crime but for reasons of public policy and sentiment, there is no penalty imposed  Instigation – is an illegal act because the public officer plants the seed of criminality in the mind of the person or offender (Amurao); the public officer induces an innocent person to commit the crime which the public officer conceived (Reyes)  Entrapment – is a legal act because the purpose is to capture or trap the lawbreaker  Buy-bust operations are forms of entrapment, hence they are legal

Arbitrary Detention with warrant Art. 125 (Warrantless arrest) Instigation vs. Entrapment- e.g. buy bust operation Give examples Private individual both Effects of criminal liability of: Instigator-liable as principal by inducement

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Instigated- principal by direct participation Put absolutory as to direct participation

Article 13 Q: what is mitigating circumstance? - those which, if present in the commission of the crime, do not entirely free the actor from criminal liability but serve only to reduce the penalty Q: What are the Kinds? Ordinary Privileged Par.1 of Art. 13 becomes a privileged mitigating circumstance because of Art.69 (Amurao) Art.69 makes par.1 of Art.13 a priv. mit. Circumstance. Classification: ORDINARY

PRIVILEGED

- offset by a generic aggravating

- cannot be offset by a generic

circumstance - penalty lowered to minimum

aggravating circumstance - penalty lowered by degree

 Mitigating and aggravating circumstances are not applied to special penal laws because the penalties in special penal laws cannot be divided into three periods Article 13(1) – Incomplete Justifying or Exempting Circumstances - is considered a privileged mitigating circumstance, provided, majority of the elements required to justify or exempt are present - for the justifying circumstances of self-defense, defense of relative and defense of stranger = the element of unlawful aggression should always be present *All elements of JC or EC present – exempt or justified *IE elements but not majority –ordinary mit. Circ. *Majority of the elements are present- priv. mit. Circ. Provided that in self defense, defense of relative or defense of stranger, Unlawful aggression is present. Q: Give an example.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 59 of 139 Atty. Maximo Amurao

Example of mitigating circumstance of incomplete accident (see page 259 of book) There was fault. Q: Woman sleeping in her room. Janitor happened to enter the room to clean. He accidentally touched the hand of the woman. Believing her honor was in danger, shot the janitor using a gun under her pillow? (US vs. Apego) Mit. Circ.- Mistake of fact of the woman. Priv. Mit. Circ. Of self-defense (N.B. Unlawful Agression + either of requisites 2 or 3) Q: 50 meters away- privileged? No, considering the distance UA not present

Article 13(2) – Minority - covers minors above 15 years but below 18 years of age (16-17 years old), who acted with discernment - shall be entitled to the benefits of a privileged mitigating circumstance  Basis for mitigation: diminution of intelligence Bet. 15 or 18 with discernment- mit (reduced by one degree) Without discernment- exempting RA 9344 did not amend Art. 68 Refuse to submit Diversion program Violation of conditions Not for best interest Diversion program- commencement of criminal action- if eventually sentenced to conviction Art. 68 will apply. Article 13(3) – Praeter Intentionem - offender did not intend to commit so grave a wrong - disproportion of the means employed to execute the crime and the consequences produced; there should have been an intent at the moment  Basis for mitigation: lack or diminution of intent

Factor to determine existence of praeter intentionem, intent being a state of mind. 1) weapon used 2) nature of injury; number of injury NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 60 of 139 Atty. Maximo Amurao

3) part of the body injured (location of injury) 4) manner of inflicting injury Treachery - External Yes. Qualifying aggravating if external in nature can co-exist with praeter intentionem which is internal. CLEAR? Q: A intend to injure AMurao hit in the right shoulder Did not submit to medical treatment. Amurao died. 1st question: Is A liable? Yes, par. 1 Art.4 Was there treachery? Yes—hence murder (qualified by treachery) Because Amurao died, intent to kill is by law conclusive. Q: People v. Enriquez (Abuse of superior strength) Intent to threaten only How would you classify? Ordinary. Legal effect? Minimum Except- if cancelled by generic aggaravating circ. Q: Claim par. 3 in violation of special penal laws? No, intent is immaterial in offenses. Q: True or false: All mitigating circ. Can be appreciated in special penal laws? No, penalties not graduated and divisible into min, med, max periods, In general) Except: Age Article 13(4) – Presence of Sufficient Provocation or Threat Q: What are the requisites? 1. provocation must be sufficient 2. must originate from the offended party 3. that the provocation must be immediate to the act or crime committed by the person who is provoked Q: What is provocation? Provocation – any unjust or improper conduct or act of the offended party capable of exciting, inciting or initiating anyone Q: When is provocation Sufficient – adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- depends on: (1) the act constituting the provocation (2) the social standing of the person provoked (3) the place and time when the provocation was made  Threats should immediately precede the act  Basis of the mitigation: diminution of intelligence and intent

Q: Elements: (SOI) Q: Test to determine whether provocation can be considered mitigating. What kind of provocation? Sufficient. Q: When is provocation sufficient? P. 273 Q: How soon must the crime be committed? No time to regain his reason and to exercise self-control -meaning of immediately is not with reference to the lapse of time per se *Relate to RATIO OF THE LAW But lapse of time to regain self-control -personal to you (the provocation) Q: What is the determining factor? Influence or effect of the provocation (w/c means that lapse or interval of time is allowed depending on gravity of offense) Q: Acts of lasciviousness committed against you (2pm); Borrowed knife (230 pm) Mitigating under par. 4? Yes. Q: Under par. 6? Yes. Q: May you consider both together? No, alternatively arising from the same facts. Q: Is acts lasciviousness a grave offense? Yes.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 62 of 139 Atty. Maximo Amurao

Article 13(5) Immediate Vindication of Relatives/Himself - Requisites: 1. that a grave offense has been done on the one committing the felony or on his relatives 2. felony committed in vindication of such grave offense; a lapse of time is allowed between the vindication and the doing of the grave offense  Difference between PROVOCATION and VINDICATION Provocation Vindication - it is made directly only to the person - the grave offense may be committing the felony committed also against the offender’s relatives - the cause that brought about the - offended party must have done provocation need not be a grave a grave offense to offender or offense his relatives - it is necessary that the provocation or - vindication of the grave offense threat immediately precedes the act may be proximate which allows an without interval of time interval of time  Reason for the difference: vindication concerns the honor of a person  To determine whether the personal offense is grave, the ff. are considered: - social standing of the person - time when the insult was made - place where the insult was made - sometimes, even the age may be considered  Basis for the mitigation: diminution of the conditions of voluntariness Q: There are 3 mit. Circ. Present. Will you be entitled to the benefits of these MC? No. Arose only out of 1 fact/ set of facts. Q: 9:30 mother informed you that your sister was raped. You searched for him with a revolver. Did not find him. Found him after 3 days. Passion or obfuscation? No. Provocation? No. Vindication? Yes. Q: What is required in vindication? Lapse of time Q: What if after one week, vindication? Law says immediate

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Q: Difference of meaning of immediate in par. 4 and 5? Yes. 8 months, vindicating? Q: Chinaman eloped with sweetheart. Parent of sweetheart considered it an offense against family. Father looked ofr daughter. Found her in the house of the chinaman. Then father knocked, Chinaman ran and refused to talk with father. Father enraged shot chinaman. 1) How many mit. Circ.? Vindication of grave offense Passion or obfuscation 2) Must grave offense constitute a crime? No. Q: Supposing you have a first cousin, girl, so close to you, who was raped by neighbor. You looked for neighbour and shot him dead. What mit. Circ? Vindication? No, first cousin not contemplated under vindication (relatives) Q: Requirements of passion or obfuscation? Q: Common law husband ask common law wife to return home. Wife refused. Husband was humiliated by reason of which he stabbed common law wife. May claim passion or obfuscation? No. Vindication of grave offense? No, not enumerated by law. Q: Humiliation, slandered in public, is it a crime? Yes. Q: It is a grave offense against you? Q: What is the crime committed? Slander, Q: May be committed by a common law wife against a common law husband? Yes. Q: Presence of P&O, V, and SP- Yes Q: Can you consider all of these in your favour? P&O- No, not lawful sentiment; not lawful legitimate relation SP- Yes V- Yes

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 64 of 139 Atty. Maximo Amurao

Q: Old man has his own family already but not contented with wife went out every night . Met an attractive woman in a prostitution house, he convinced woman to leave the prostitution house and they lived together as husband and wife. Wife left. After several days, she was found in another prostitution house, convinced her to to go back. Woman adamant in her refusal. Woman said Ayoko na sayo, Matanda ka na. Mahina na tuhod mo. Old man was enraged, stabbed her. Q: May old man claim P&O? No. People v. Bello is an exception (p. 290-291) 4,5,6 are interrelated because they can exist in a single act but not necessarily appreciated separately. Article 13(6) – Passion or Obfuscation - Elements: 1. the accused acted upon impulse 2. the impulse must be so powerful that it naturally produced passion or obfuscation in the accused  Reason: these are causes naturally producing in a person powerful excitement that he loses reason and self-control thereby diminishing the exercise of willpower  Rule: the passion or obfuscation should arise from lawful sentiments in order to be mitigating - Requisites: 1. that there be an act, both unlawful and sufficient to produce such a condition of mind 2. that said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his natural equanimity Difference between PASSION or OBFUSCATION and IRRESISTIBLE FORCE Passion or Obfuscation Irresistible Force - a mitigating circumstance - an exempting circumstance - cannot give rise to irresistible force - requires physical force because passion or obfuscation has no physical force - the passion or obfuscation is in the - must come from a third person offender himself - must arise from lawful sentiments - is unlawful Difference between PASSION or OBFUSCATION and PROVOCATION Passion or Obfuscation Provocation - produced by an impulse which may - must come from the injured party be caused by provocation - the offense which engenders - must immediately precede the perturbation of mind need not be commission of the crime

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes immediate; it is only required that the influence thereof lasts until the moment the crime is committed - the effect is loss of reason and self-control on the part of the offender

Page 65 of 139 Atty. Maximo Amurao

- the effect is also loss of reason and self-control on the part of the offender

 Article 13(7) – Voluntary Surrender/Voluntary Confession of Guilt Voluntary Surrender - Requisites: 1. that the offender had not been actually arrested 2. that the offender surrendered himself to a person in authority or to the latter’s agent 3. that the surrender was voluntary  “Voluntary” – to be appreciated, voluntary surrender must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because (1) he acknowledged his guilt or (2) because he wishes to save them the trouble and expense necessarily incurred in his search and capture  Intention to surrender without actually surrendering is NOT mitigating  Voluntary Confession of Guilt - Requisites: 1. that the offender spontaneously confessed his guilt 2. that the confession of guilt was made in open court that is before the competent court that is to try the case 3. that the confession of guilt was made prior to the presentation of evidence for the prosecution  Even after arraignment, voluntary confession can still be mitigating, when with the consent of the public prosecutor, there is an amendment in the information = still voluntary confession (as was held in the midterms)  Voluntary confession is usually done during arraignment  What has been admitted need not be proven by evidence; judgment can already be rendered but both sides can still present evidence to prove aggravating or mitigating circumstances  Arraignment – charges are being read to the accused in open court in a language known to him; if the charges are read in a language not known to him, the arraignment or plea is void.  It is the duty of courts to read charges in a language known to him  Promulgation – physical and actual reading of the sentence to the accused - can be limited to just the dispositive portion (the “wherefore” clause) - if there is an acquittal, the decision is final and executory and not appeallable because of the risk of double jeopardy

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 66 of 139 Atty. Maximo Amurao

- if there is a conviction, the accused has 15 days to avail of legal remedies, if not availed after, the conviction becomes final and executory  Basis for mitigation: lesser perversity of the offender

Q: How many MC? two 1) Voluntary surrender- Ordinary (not generic) 2) Voluntary confession of guilt Paragraphs 3 to 10 are all ordinary mitigating Reason for considering voluntary surrender mitigating? 1. Act of repentance and 2 respect for law, and 3. saves time, resources and energy for his search and capture To whom must VS be done? Person-in-authority, Define (p.305) Agent e.g. of P-I-A Brgy. Chairman City Mayor Judge, Governor Prosecutor, Congressman President, Professors, Teachers Agents Police officers Members of AFP Brgy. Tanods NBI agents Sheriffs Killd neighbor, surrender to Amurao, voluntary surrender? Yes. Board members of GSIS? Yes. Of Landbank? Yes. DBP? Yes. SSS? Yes. PAGCOR? Yes.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 67 of 139 Atty. Maximo Amurao

Q: Supposing accused after killing neighbour just stayed in his house. When police officers arrived, went with them voluntarily- mit? No. Voluntary surrender not synonymous with non-flight. Direct, positive, unequivocal act showing an intention to submit himself voluntarily either save the govt from the time and expenses or as a sign of acknowledgment of guilt or repentance (Amurao) Offender on radio that he was #1 suspect in slaying of politician, he came to the police to clear his name, he has a pending case for rape. Voluntary surrender? No. Will surrender only if 1) He is given special treatment 2) ref 3) aircon Voluntary surrender? No. After committing crime, accused went into hiding. He was found after several months. Hiding place surrounded by authorities. He came out saying I surrender. VS? No ( Internal) Meaning of spontaneous. Voluntary Confession –Par. 10 of Art.14. A case for homicide filed against accused in Batanes. Upon learning, the accused hiding in Tawi-tawi surrendered to Brgy. Chairman of Tawi-tawi? Yes. Place of surrender not significant. It need not be the place where the case is filed. Q: Phil. Ambassador to Australia, if accused is in Australia upon learning of the case filed? Yes. Q: If surrendered to Australian Prime Minister? No, not a P-I-A or agent under the Phil laws Q: On the way to the police precinct, was apprehended? Yes. Q: Did not offer resistance? No. Q: Issued warrant, surrendered to Brgy. Tanod? Yes. Even if warrant is already issued? Yes, as long as not served.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 68 of 139 Atty. Maximo Amurao

10 months after issuance, surrendered? No. No longer spontaneous. Surrender to mother-in-law? No. Q: Requisites of VCG: Competent court- meaning? Court trying the case Open court- meaning? Even if doors are closed? Yes. Reason behind VCG? Act of repentance, Acknowledgment of guilt Accused willing to plead guilty with condition Ref, aircon, computer set? No. When to plead? Arraignment. Pre-trial? (There is presentation of witnesses, documents, and gist of testimony) After inspection of evidence and conclusion, the evidence against him is strong. Stages Arraignment Pre-trial Trial ONLY SUBMISSION, NOT PRESENTATION Prosec presented 1st eyewitness, clear & convicning testimony After 1st witness, concluding that he would be convicted , withdrew guilty plea. Mitigating? No. N.B. NOT prior to “termination” Witness only sworn-in, no testimony yet mitigating? Yes. Amend info to a lesser offense w/o protest willing to plea guilty, mitigating? Yes.

Article 13(8) – Deafness and Dumbness - must restrict the means of action, defense or communication with others

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 69 of 139 Atty. Maximo Amurao

 Basis for mitigation: offender does not have complete freedom of action; diminution of freedom and voluntariness Bald? No. Blind? Yes. Partial blindness? Yes. Deaf by one ear? Yes. Crippled? Yes. Toothless? Yes! When must the physical defect be present? At the time of the commission of the crime. ORDINARY MIT. Legal effects. Article 13(9) – Illness - the offender has diminished exercise of willpower; loss of willpower may even be exempting - deprivation of consciousness  Basis for mitigation: diminution of intelligence and intent  

Accused prosecuted for simple theft (shoplifting in a mall) During trial, it was proved that he was a kleptomaniac. Mitigating? Yes.

 

If prosecuted for frustrated homicide? No, not related to the offense committed.



Accused prosecuted for rape. During trial proved to be sex maniac, Mitigating? Yes.



NO CONTROL OF THEIR OWN WILL AS FAR AS THE OFFENSE IS CONCERNED



Same fact-sex maniac. Prosecuted for Robbery? No.

Article 13(10) – Other Analogous Circumstances Example? Blind, 60 years old-70 years of age Restitution- voluntary surrender. Creditor, debtor. Running away and refuses to pay. Victim brought to the hospital for treatment- voluntary surrender. Giving victim a certain amount for…- voluntary confession.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 70 of 139 Atty. Maximo Amurao

Jealousy. You saw your girlfriend walking hand-in-hand with another man, you inflicted physical injuries? Passion or obfuscation. Other mit. Circ. In the RPC? Infanticide or abortion to conceal disgrace or dishonor. Adultery- there is abandonment by the offended party. (Unjustified)

Article 14 Q: What are aggravating circumstances? - those if present, are not automatically offset by mitigating circumstances - may increase the penalty provided by the law without exceeding the maximum penalty or it changes the nature of the crime - Classification: 1. Generic – those that generally apply to all crimes, eg. Recidivism, Aid of Minors, Advantage taken by Public Position, etc 2. Specific – those that apply to particular crimes, eg. Ignominy, Treachery 3. Qualifying – Those that change the nature of the crime, eg. Treachery, Evident Premeditation, Cruelty, etc. 4. Inherent – necessity accompanies the commission of the crime, eg. sex is inherent in crimes against chastity  Difference between Generic and Qualifying GENERIC QUALIFYING - can be offset by an ordinary mitigating circumstance

- cannot be offset by an ordinary mitigating circumstance

- the legal effect is to increase - it changes the nature of the crime the penalty to the maximum without exceeding the limit

- give the crime its proper and exclusive name

 Both qualifying and generic circumstances must be alleged in the information; the prosecution can’t prove an aggravating circumstance during trial (p.326 #3 in the comparison part in the Reyes book is wrong)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 71 of 139 Atty. Maximo Amurao

 Article 14(1) – Advantage Taken of Public Position - a generic aggravating circumstance - based on Republic Act 7659, in crimes committed by a public officer, the penalty prescribed by law is always at the maximum, regardless of the mitigating circumstances presented and regardless of the nature of these mitigating circumstances  Public Officer – for advantage taken to be appreciated, s/he must use the influence, prestige or ascendancy which his office gives him as the means by which s/he realizes his purpose.  There should be a deliberate intent to use the influence, prestige or ascendancy  Is it enough that the offender is a public officer? NO, he has to use the influence, prestige or ascendancy given to him by his office  Supposing, a police officer enters the house then ties up the residents and robs them, can the aggravating circumstance of advantage taken of public position be appreciated? YES  Supposing, a traffic enforcer take over the car of a driver and speeds away, he is convicted of robbery, can the aggravating circumstance of advantage taken of public position be appreciated? YES  Supposing some members of the barangay council asked for financial sponsorship for the education of the community, then the project turned out to be false, can the aggravating circumstance of advantage taken of public position be appreciated? YES  Supposing, if these crimes were attendant of negligence, passion or obfuscation, vindication, or sufficient provocation, can the aggravating circumstance of advantage taken of public position be appreciated? NO, because these circumstances are incompatible with advantage taken of public position since deliberate intent is absent in these instances.  Supposing, a police investigator asked a rape victim to enter a room where he committed acts of lasciviousness on the rape victim, can the aggravating circumstance of advantage taken of public position be appreciated? YES  The aggravating circumstance of advantage taken of public position is NOT appreciated when the public position is an integral element or inherent in the offense; In the ff crimes, public position is inherent: - bribery - malversation of public funds - indirect bribery

- falsification of public documents

- RA 3019

- other crimes against public officers under the RPC

 Basis for the aggravation: the greater perversity of (1) personal circumstances of the offender, and (2) means used to secure commission of the crime  Article 14(2) – Contempt or Insult to Public Authorities - Requisites:

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 72 of 139 Atty. Maximo Amurao

1. the public authority is engaged in the exercise of his official functions 2. the public authority is not the victim of the crime 3. offender knows him to be a public authority 4. his presence has not prevented the offender from committing the crime  Supposing, one Sunday, the mayor just finished mass, he saw two people fighting, he mediated upon introducing himself, can the aggravating circumstance of contempt or insult of public authorities be appreciated? YES, because regardless of the day, even if Sunday is not a working day, the official function of the mayor, in this case to maintain peace and order, does not stop as long as he is within his jurisdiction  Supposing, using the same facts above, the two people attacked the mayor, can the aggravating circumstance of contempt or insult of public authorities be appreciated? NO, because the public authority should not be the offended party  Supposing, using the same facts, but the mayor attended the mass in another town, can the aggravating circumstance of contempt or insult of public authorities be appreciated? NO, because mediating would not be part of his official functions in that other town.  Supposing, using the same facts above, but the two people did not know that the one mediating was in fact the mayor, can the aggravating circumstance of contempt or insult of public authorities be appreciated? NO, the offenders have to know that he is the mayor or a public authority

Q: Supposing mayor of town X attending wedding in town Y. A crime was committed. Aggravating? No. Must be within his jurisdiction. Not engaged in official duties.  Article 14(3) – Disregard of Rank, Age, Sex or Dwelling of the Offended Party - there are FOUR circumstances in this paragraph - rank, age, sex have a common denominator = respect due to offended party  Disregard of rank of the offended party - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation, vindication or those with sufficient provocation = because of the lack of intent - this can be done to a person in authority or his agent - there should be deliberate intent to disregard or insult = accompanied with the difference in rank, and manifested by deliberate acts - inherent in the crime of direct assault

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 73 of 139 Atty. Maximo Amurao

 Supposing, a sergeant was driving a jeep in a careless manner, then he hit a general, can the aggravating circumstance of disregard of rank be appreciated? NO, there was no deliberate intent to disregard the rank of the general  Supposing, physical injuries were made against Prof. Amurao by his student, can the aggravating circumstance of disregard of rank be appreciated? YES, because Prof. Amurao is a person in authority and ranks higher than the student.  Supposing, a sergeant sees his wife embracing a general, then he ran over them, can the aggravating circumstance of disregard of rank be appreciated? NO, because this circumstance was attendant of passion or obfuscation  Disregard of age of the offended party - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation, vindication or those with sufficient provocation = because of the lack of intent - for this circumstance to be appreciated, the disparity of age between offender and victim can be determined if the victim can be the father of the accused; a disparity of 15 years or more - tender age = for children; old age = for old people  Supposing, the offender was 90 years old when he stabbed the 105-year old victim, can the aggravating circumstance of disregard of age be appreciated? YES, even if the offender was also very old, the disparity of their ages still matters  Disregard of sex of the offended party - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation, vindication or those with sufficient provocation = because of the lack of intent - the victim contemplated in this paragraph should be a woman - the offender should act with deliberate intent to disrespect the woman - disregard of sex is absorbed in treachery - dwelling may mean temporary dwelling  Dwelling - a place or structure that satisfies the requirements of domestic life of a person NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 74 of 139 Atty. Maximo Amurao

- a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - there no provocation on the part of the offended party - all the ingredients of the crime should be done in the dwelling - if the offender and offended are both occupants of the same house, dwelling cannot be appreciated  Supposing, the crime was committed in the garage of the house, can the aggravating circumstance of dwelling be appreciated? YES, because the garage is part of the dwelling  Supposing the crime was done in the roof? YES  Supposing, a child was kidnapped while at the stairs of the dwelling, there was no ransom but the child was killed in Cavite, can the aggravating circumstance of dwelling be appreciated? YES, because the stairs is still part of the dwelling  Supposing, a husband kills his wife in their conjugal dwelling, can the aggravating circumstance of dwelling be appreciated? NO  Supposing, the housemaid killed the employer’s child, can the aggravating circumstance of dwelling be appreciated? NO  Supposing, the accused was on the road when he shot the victim who was at the stairs, can dwelling be appreciated? YES  Supposing, if the victim was in the yard going to the direction of the stairs, can the aggravating circumstance of dwelling be appreciated? NO  Supposing, the victim was about to step on the stairs? can the aggravating circumstance of dwelling be appreciated? YES  Supposing, the employer raped their maid, can the aggravating circumstance of dwelling be appreciated? NO  Supposing, the houseboy killed the housemaid, can the aggravating circumstance of dwelling be appreciated? NO  Supposing, the wife killed her husband in the conjugal house, can the aggravating circumstance of dwelling be appreciated? NO  Supposing the wife commits adultery, can the aggravating circumstance of dwelling be appreciated? YES  Supposing, the owner of the house and the dwelling of the victim, where the victim was a tenant, can the aggravating circumstance of dwelling be appreciated? YES, because dwelling may mean temporary dwelling  Supposing, the owner was killed in the toilet, can the aggravating circumstance of dwelling be appreciated? YES, because the toilet is part of the dwelling  Supposing, the owner of the house was killed 500 meters from the toilet which was situated outside the house, can the aggravating circumstance of dwelling be appreciated? NO, because if you destroy the toilet, the house remains intact

Basis of the aggravation: Place of the commission of the crime; the sanctity of privacy that the law provides the human abode Q: How many AC’s? 4

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes 1.) 2.) 3.) 4.)

Page 75 of 139 Atty. Maximo Amurao

Rank Sex Age Dwelling

Q: Rank and abuse of public functions can co-exist? Yes w/ SP? No, incompatible w/ P/O? No Q: Is it enough that the offended oarty be of higher rank? No. Deliberate intent and with disregard - Same with age - Same with sex (not enough that offended party is a woman) Q: Disregard of rank. Felony committed with negligence? No. Deliberate intent and negligence are incompatible - With P/O? No. - Provocation? No - Vindication? Yes Q: General has illicit relations with a wife of a Sergeant. Sergeant saw them in tight embrace, shoots the General. Aggravating? No. with passion and obfuscation (p/o) Vindication of grave offense with disregard of rank? Yes they are not inconsistent. Age Q: Accidental meeting between offender and offended? No. must have deliberate intent Q: Spur of the moment? No. same reason. Applies also to Rank By accident? No. Rank is a generic Q: what is the Legal effect? – Not offset by any ordinary mitigating circumstance. Raises the penalty to the maximum - Can be offset by mit circumstance Q: When there are 2 or more generic agg, not offset by ordinary mit, can the penalty go beyond the max prescribed by law? No. When there are 10? No.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 76 of 139 Atty. Maximo Amurao

Must not exceed the penalty prescribed by law for the offense What is the required age difference? 15 years at least (could be the father) Legal effect? – Not offset by any ordinary mitigating circumstance. Raises the penalty to the maximum -

Can be offset by mit circumstance

When there are 2 or more generic agg, not offset by ordinary mit, can the penalty go beyond the max prescribed by law? No. When there are 10? No. Must not exceed the penalty prescribed by law for the offense

What is the required age difference? 15 years at least (could be the father) Age is generic 95- offended; 90- offender – age aggravating? No. Old man humiliated you in public. You stabbed him. Aggravating? No. Sufficient provocation is incompatible. You attacked a 60 yo man who filed a criminal case against you. Aggravating? Yes. No passion or obfuscationg. -Passion or obfuscation must arise from unlawful action. You stabbed an old man who aimed a revolver at you. Not aggravating. No sufficient provocation. Age is generic 95- offended; 90- offender – age aggravating? No. Old man humiliated you in public. You stabbed him. Aggravating? No. Sufficient provocation is incompatible. You attacked a 60 yo man who filed a criminal case against you. Aggravating? Yes. No passion or obfuscationg. -Passion or obfuscation must arise from unlawful action. You stabbed an old man who aimed a revolver at you. Not aggravating. No sufficient provocation.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 77 of 139 Atty. Maximo Amurao

Sex Q: Considered in rape as aggravating? No. inherent Generic Can be appreciated in crimes against person? Yes but not in rape (inherent) Accused intended to kill husband.Saw husband and wife walking. Fired at the husband but hit the wife. Not aggravating. No deliberate intent. Why is sex aggravating? Wemen belong to the weaker sex. If the woman is a black belter? No longer aggravating. Reason for law don’t exist anymore. Rank, Age, Sex and Dwelling – common element? RESPECT (deliberate disregard of the respect) Dwelling What is dwelling? (*Lloyd used the definition in the book. MALI) Generic Comfor room a dwelling? No. Dwelling – a place of structure which satisfies the requirements of domestic life of a person Is it enough that the crime be committed in the dwelling? No. deliberate disregard of the respect due to the offended party in the dwelling. - Incomapatible with negligence - Incompatible with p/o - Incompatible with sufficient provocation -Vindication can co-exist with dwelling? Yes. They are not incompatible. Accused shot the victim while on the roof. Dwelling is aggravating Accused was in the middle of the road. Victim was brushing his teeth by the window of the house. Dwelling is aggravating, regardless of the location of the offender Accused under the house of victim. Victim on the upper portion. Aggravating? Yes. - Carport? Yes - Comfort room of house? Yes - If the CR is 500 meters from the house? No. no longer an integral part of the house. Victim inside car. Car is in carport? Yes.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 78 of 139 Atty. Maximo Amurao

Son of owner of house, raped housemaid. Not aggravating. Must not be living in the same house. -Maid only reports from 6 am to 9 pm. Then goes home to family. No. Family driver reports from 6am to 8pm. Employer was out, driver raped thestay-in housemaid. This is aggravating. Siblings – brother killed brother? No. Husband killed paramour in conjugal room. Aggravating against the husband? No Wife had sex with a stranger in the conjugal room. Aggravating against wife? Yes. See page 354. Exception to the rule that dwelling is not aggravating if both is living inside. If the owner is the offender? No, as a general rule -

Exception: lease – “temporary dwelling”

 Article 14(4) – Abuse of Confidence/Obvious Ungratefulness - this paragraph contemplates TWO aggravating circumstances  Abuse of Confidence – exists only when the offended party has trusted the offender who later abuses such trust by committing the crime. The abuse of confidence must be a means of facilitating the commission of the crime. The culprit taking advantage of the offended party’s belief that the former would not abuse said confidence - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; can be raised to the maximum  There are instances where abuse of confidence is qualifying: - qualified theft - qualified rape - qualified seduction  Requisites: 1. offender had trusted the offended 2. offender abused such trust with the commission of the crime 3. abuse of confidence facilitated the commission of the crime  There should be direct relationship and trust  Confidence must be immediate and personal  Abuse of Confidence is inherent in the ff: - malversation - qualified theft

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes - estafa

Page 79 of 139 Atty. Maximo Amurao

- qualified seduction

 Supposing, lovers broke off 1 week before their encounter, can the aggravating circumstance of abuse of confidence be appreciated? NO  Supposing, a nanny killed 2 yr.old child under her care, can the aggravating circumstance of abuse of confidence be appreciated? NO, because there is no direct relationship and trust between the nanny and child  Supposing, the nanny killed the mother of that child under her care, can the aggravating circumstance of abuse of confidence be appreciated? YES, because there is direct relationship and trust between the nanny and the parents of the child  Ungratefulness – must be obvious, manifest and clear - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; can be raised to the maximum - applicable to domestic servants, “katiwalas”, security guards - not applicable to if offender and offended both live in the same house  Basis for aggravation: greater perversity of the ways and means employed Abuse of confidence in estafa? Inherent. Obvious ungratefulness Employer attempted against the honor of housemaid. After several day, employer invited housemaid to farm. Raped housemaid. No. Abuse of confidence? Confidence broken.  Article 14(5) – Palace and Places of Commission of Offense - this paragraph contemplates FOUR aggravating circumstances - offender must have the intention to commit a crime when he entered the place - all the four circumstances are not applicable to cases attendant of passion or obfuscation, immediate vindication or those with sufficient provocation = because of the lack of intent - not applicable to cases involving spurs of the moment or chance meetings  Wisdom behind this circumstance: Why aggravate? What’s with the place? Because the place deserves respect (applies to all the places mentioned under this paragraph)  Crime committed in the Palace of the Chief Executive - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 80 of 139 Atty. Maximo Amurao

- Is it necessary that the Chief Executive be there? NO - the palace contemplated here is the Malacanang Palace  Supposing, the chef of the Chief Executive killed a janitor, can the aggravating circumstance of palace of the Chief Executive be appreciated? YES, the Chief Executive need not be there  Supposing, a guest shot to death FG Mike Arroyo, can the aggravating circumstance of palace of the Chief Executive be appreciated? YES  Supposing, using the same facts above, the crime was committed in the lawn, can the aggravating circumstance of palace of the Chief Executive be appreciated? NO, because the lawn is not part of the palace  Supposing, using the same facts above, the crime was committed in the presidential mansion, can the aggravating circumstance of palace of the Chief Executive be appreciated? NO, because the mansion is not the palace  Crime committed in the Presence of the Chief Executive - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum - requires the personal presence of the Chief Executive - Is it necessary that the crime be committed in the Presidential palace? NO  Supposing, the president personally saw the crime, can the aggravating circumstance of in the presence of the Chief Executive be appreciated? YES  Supposing, the president, while watching television, saw the crime? can the aggravating circumstance of palace of the Chief Executive be appreciated? NO  Supposing, on-board a helicopter, the Chief Executive saw the crime from a distance, can the aggravating circumstance of palace of the Chief Executive be appreciated? YES  Supposing, the offender had no knowledge that the Chief Executive was present or near the place of the commission of the crime, can the aggravating circumstance of palace of the Chief Executive be appreciated? NO  Crime committed in the Place where Public Authorities are in the Discharge of their Duties - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum - emphasizes the place of the commission of the crime - the public authority must be in the exercise or performance of one’s official function  Crime committed in a Place Dedicated for Religious Worship - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum - emphasizes the respect that should be afforded to the place

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 81 of 139 Atty. Maximo Amurao

 Supposing, there was no ceremony in the church when the crime was committed, can the aggravating circumstance of place dedicated for religious worship be appreciated? YES  Supposing, there was no priest in the church, can the aggravating circumstance of place dedicated for religious worship be appreciated? YES  Supposing, the crime was committed in a chapel inside a cemetery (the chapel is used only when there are masses to be held for purposes of funeral services), can the aggravating circumstance of place dedicated for religious worship be appreciated? NO, the place of religious worship should hold religious ceremonies there regularly Basis for aggravation: greater perversity shown by the place of the commission of the crime, which must be respected Generic Emphasis of par 5? PLACE of the commission of the crime. (respect due to the place) Pres Noynoy in Times St. Crime committed in Malacanang grounds. (garden). No, must be in palace itself, not garden. If the convoy was caught in heavy traffic. Accused knew it was the president’s convoy. Committed holdup in the streets. Aggravating? Yes Incompatible with negligence, p/o and sp. President noynoy in helicopter hovering over the projects. Two workers had a fight. One stabbed another to death within view of president noynoy. Aggravating? Yes. Place devoted for religious worship. Generic. Is it enough that the crime be committed in a place decoted to religious worship? No. deliberate intent. Accused rape victim while praying in San Beda Abbey? Yes If in a private chapel in your house? No. 1.) regular worship. Regular religious worship. 2.) must be open to the public. Chapels in cemeteries? No.

Public authorities are engaged in the performance – generice Not necessary that the PA must be engaged in the performance of functions. Why? Emphasis is in the place. Reason is the respect due to the place.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 82 of 139 Atty. Maximo Amurao

Chief justice asleep in his house. The Office of Chief Justice was robbed. Aggravating? Yes Office of Senate Pres while SP was sleeping in his house in the middle of the night? Yes BOOK IS WRONG. It will collide with par 2 if it will be required that the PA should be in the exercise of his functions.  Article 14(6) – Nighttime, Uninhabited Place or Band - this paragraph contemplates THREE aggravating circumstances - all the three circumstances are not applicable to cases attendant of passion or obfuscation or those with sufficient provocation  Applicable in cases where: 1. the circumstance facilitated the commission of the crime 2. the circumstance was especially sought for by the offender to insure the commission of the crime or for the purpose of impunity - to commit the crime with more ease - contemplates a planned attack; not a mere encounter 3. the offender took advantage of the circumstance for the purpose of impunity - to prevent being recognized or to secure himself against detection  Nighttime - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - nighttime means: beginning at the end of dusk and ending at dawn - it is not enough that it was nighttime - what is especially sought for by the offender is the darkness of the night - this circumstance is not applicable to cases involving accidents, accidental meetings, chance encounters, or spurs of the moment  Supposing, the crime was committed inside a dark movie house at around 4pm, can the aggravating circumstance of nighttime be appreciated? NO, because was should be especially sought for is the darkness of night, not the darkness of the movie house when the lights were only off because it was only 4 in the afternoon  Supposing, the crime was committed inside a movie house when the lights were still open and the time then was 9pm, can the aggravating circumstance of nighttime be appreciated? NO, because even though it was nighttime, the place of the commission was well-lighted when it was committed  Supposing, the crime was committed in a place where it was well-lighted by a Meralco lightpost, can the aggravating circumstance of nighttime be appreciated? NO  Uninhabited Place

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 83 of 139 Atty. Maximo Amurao

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - there should be intent  Spur of the moment – Not applicable  What is considered is the reasonable possibility for the victim to receive some help; the degree of difficulty of giving assistance or help  Solitude (must be sought for to better attain criminal purpose) - for an easy and uninterrupted accomplishment of their criminal design - to insure concealment of the offense; security against detection and punishment  Band - more than three malefactors - shall have acted together - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  What do you mean by “armed”? only guns? NO, knives are considered; anything that can kill a person  Aggravating in crimes against property and crimes against persons; NOT applicable in crimes against chastity  Basis for aggravation: time & place of the commission & means employed

How many AC? 3 Nighttime – generic (with jurisprudence) Nighttime as absorbed in treachery qualifies homicide to murder What is nighttime? P. 365 8pm. Met in the classroom. Stabbed amurao. Aggravating? No. classroom is well lighted. Incompatible with: accidental meeting, negligence, p/o, s/p, spur of the moment. Started the crime at 5pm (sunset) finishes at 11 pm – aggravating? No. unset not dark yet. Started at 3 am – 530 pm – sunrise? No. Deliberate intent. If the crime was finished only at nighttime – not aggravating Moviehouse. Lights off? No. Announcement of total eclipse causing total darkness from 3pm to 5 pm. You plan to kill your neighbor when the eclipse set in. not aggravating \killed during full moon.no clouds covered the moon. NO - Nighttime to be aggravating, the accused must have sought the darkness of the night. In crimes against person – may be an indicia of treachery. Uninhabited place Generic Legal effect? Why aggravating? No possibility of receiving help (TEST)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 84 of 139 Atty. Maximo Amurao

Deliberate intent Incompatible with negligence, sp, p/o, chance encounter, spur of the moment, Can treachery absorb this ac? Yes. By Band Generic Absorbed by treachery? Yes Synonymous with syndicate? No - 2 or more - Not necessarily armed 5 persons commirtted robbery, only 3 armed. Bya band? No. at least 4 armed.

Article 14(7) – On occasion of calamity or misfortune - that the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - there should be deliberate intent to take advantage - this circumstance is not applicable to cases involving accidents, accidental meetings, chance encounters, or spurs of the moment - this circumstance is not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation or those with sufficient provocation  Reason: in the midst of great calamity, instead lending aid to the afflicted, the offender adds to the victims’ suffering by taking advantage of their advantage of their misfortune to despoil  The offender must seek for the calamity as an opportunity to take advantage or to commit the crime  Supposing, the offender saw his mortal enemy in a flood, then he killed his mortal enemy, can the aggravating circumstance of be appreciated? NO  Basis for aggravation: time of the commission of the crime

PARAGRAPH 7 - Qualifying - Legal effect - Deliberate intent – must take advantage of the calamity Incompatible with negligence

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 85 of 139 Atty. Maximo Amurao

Conflagration Retrieving your property. Accidentally met your mortal enemy. Stabbed him. Not aggravating Incompatible with: p/o, spur of the moment, sp Conflagration - A stranger took your properties, what is the crime. Qualified theft.  Article 14(8) – Aid or Armed Men, etc. - that the crime be committed with the aid of (1) armed men or, (2) persons who insure or afford impunity  Armed Men - at least two (2) men; the law says “men”; four (4) men = band already - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  Rule: Casual presence of armed men is NOT aggravating  The armed men must take part directly or indirectly in the crime  The offender must avail of the aid  Mere moral or psychological aid or reliance is sufficient  Actual aid is NOT necessary  Persons who insure or afford impunity - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - these persons should have or be in a position to afford impunity  Is a judge a person who can afford impunity? YES  Is an employee a person who can afford impunity? NO  Is a secretary a person who can afford impunity? NO  Is a mistress a person who can afford impunity? NO  Basis for aggravation: means and ways of committing the crime PARAGRAPH 8 How many? 2 1.) Aid of armed men 2.) Aid of persons who afford impunity Classification> qualifying Legal effect?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 86 of 139 Atty. Maximo Amurao

Requirements: 1.) Took part 2.) Availed or relied Armed men distinguished from band: 2

4

Direct or indirect

directly took part

What kind of aid is contemplated? Moral or psychological will suffice; material A and 4 friends decided to kill Amurao. 4 friends all armed outside the gate. A armed with licensed revolver. 4 friends will only help upon signal. Aggravating? Yes. Casual presence of armed men already aggravating? No Police major celebrating bday. Invited subordinates with service firearms. A guest stabbed another guest – No Impunity Qualifying Legal effect? e.g. first gentleman approchaed to protect you after killing somebody – Yes Chieftain of ABB-NPA (notorious). Aggravating? Yes. Impunity for Criminal Prosecution. Assurance that there will be no complainant and witnesses – Yes. not required to be legal source. Mistress of mayor to afford impunity – yes  Article 14(9) – Recidivism - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum  Recidivist – one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC  Requisites: 1. that the offender is on trial for an offense 2. that he was previously convicted by final judgment of another crime

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 87 of 139 Atty. Maximo Amurao

3. that both the first and the second offense are embraced in the same title of the RPC 4. that the offender is convicted of the new offense  Supposing, the first offense was acts of lasciviousness in 1980, then the second offense in 2006 was attempted rape, can the aggravating circumstance of recidivism be appreciated? NO, because acts of lasciviousness and attempted rape are not embraced in the same title of the RPC; acts of lasciviousness-crimes against chastity; attempted rape-crimes against persons  Supposing the first offense in 1980 was attempted rape, then the second offense in 2006 was acts of lasciviousness, can the aggravating circumstance of recidivism be appreciated? YES because attempted rape then in 1980 was embraced under crimes against chastity, hence both crimes are embraced in the same title of the RPC  Pardon does not obliterate the fact that the accused was a recidivist  The time or period between the two offenses is immaterial  Basis for aggravation: inclination to crimes - Qualifying - Legal effect - Deliberate intent – must take advantage of the calamity Incompatible with negligence Conflagration Retrieving your property. Accidentally met your mortal enemy. Stabbed him. Not aggravating Incompatible with: p/o, spur of the moment, sp Conflagration - A stranger took your properties, what is the crime. Qualified theft. Recidivist – define Violation of special penal laws - No, must be in the RPC Simple theft convict – pending appeal Violation of anti fencing law – No Qualified theft – pending appeal Accomplice in attempted robbery – no, final judgment Before 8353 – attempted rape – served sentence Slight physical injuries – NO- not embraced Public interest in the same title of RPC Falsification of commercial documents

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 88 of 139 Atty. Maximo Amurao

Estafa - Poperty 1970-2010: not embraced in the same title. Article 14(10) – Reiteracion or Habituality - that the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance; penalty can be raised to the maximum  Requisites: 1. that the accused is on trial for an offense 2. that he previously served sentence for another offense to which the law attaches an equal or greater penalty or for 2 or more crimes to which it attaches a lighter penalty than that for the new offense 3. that he is convicted of the new offense Difference between Recidivism and Reiteracion RECIDIVISM - its enough that a final judgment has been rendered for the 1st offense

REITERACION - its necessary that the offender shall have served out his sentence for the 1st offense

- requires that both offenses be embraced in the same title of the RPC - always taken into consideration in terms of the penalty to be imposed

- 1st and 2nd offense must not be embraced in same title of the RPC - not always an aggravating circumstance - previous crimes must be of equal or greater in penalty (at least one) or at least two lighter penalties

 If the 2nd crime is an offense or crime punishable under a special law, it cannot be considered under reiteracion because Articles 13, 14, 15 of the RPC are not applicable to special law crimes, applicable only to crimes defined under the Revised Penal Code.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 89 of 139 Atty. Maximo Amurao

 Supposing, the 1st offense is illegal possession of firearms (a special law crime), punishable by reclusion temporal, while the 2nd offense is less serious physical injuries, can the aggravating circumstance of reiteracion be appreciated? YES, if the offender was previously punished for a special law crime or an offense, the nature of the crime is immaterial; the emphasis is on the punishment or penalty  Four Forms of Repetition 1. Recidivism

3. Habitual Delinquency/Multi-recidivism

2. Reiteracion or Habituality

4. Quasi-recidivism

 Habitual Delinquency – when a person within a period of 10 years from the date of release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification, found guilty for a 3rd time or oftener. A habitual delinquent shall suffer an additional penalty

 Quasi-recidivism – any person who shall commit a felony after having been convicted by final judgment before beginning to serve such sentence or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new penalty.  Basis for aggravation: inclination to crimes

Reiteraciion and recidivism – distinguish Murder – pardon. Aggravating? Yes. Pardon does not obliterate. Attempted homicide – 6 years probation Frustrated murder – No. Serious physical injuries – 4 years, pobation Less serious – no Classification – generic Legal effect?

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 90 of 139 Atty. Maximo Amurao

Attempted homicide – not alleged but proved during trial – appreciate habituality? Yes, generic if without objection -

Distinguish from habitual delinquency – nature of offense – 10 years required Habituality – generic Both must be alleged in the information

 Article 14(11) – Price, Reward or Promise - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  The price, reward or promise must be the sole motivating factor for committing the crime; must be for the purpose of inducing another to perform a deed  There should be two or more offenders: the one who offers, the one who accepts it  Criminal Participation: the one who offers is a principal by inducement, the one who accepts is a principal by direct participation  It is not necessary that the principal by direct participation receive the reward or promise; what is important is that the reward or promise was the sole motivating factor otherwise the crime would not have been committed  Supposing, the one who commits the crime knows of the reward or promise already, can the aggravating circumstance of price, reward or promise be appreciated? NO, because there was no motivation already  Basis for aggravation: greater perversity by the motivating power itself

Price, reward or promise - At least 2 or more offenders - Must be the sole mitigating power without which there would be no crime - Qualifyinf – legal effects Giving reward – principal by inducement Acceptor – direct participation Necessary that accused actually received? NO You approached a gun-for-hire. Paid 50k to kill Amurao. Gun for hire was his former student willing to kill Amurao without price. Aggravating? No.  Article 14(12) – By means of inundation, fire, etc.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 91 of 139 Atty. Maximo Amurao

- that the crime be committed by means of inundation, fire, poison, explosion, stranding, of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  There are instances when these circumstances are inherent in the crime, thus cannot be appreciated as aggravating circumstances: 1. “by means of fire”- inherent in arson 2. “by means of derailment of locomotive” – inherent in damage to means of communication 3. “by means of explosion”- without intent to kill, inherent in destruction to property  Difference of Par.7 and Par.12 Par.7 = on occasion of calamity or misfortune; not within offender’s control Par.12 = the acts of great waste and ruin are used by the offender as means  Basis for aggravation: means and ways employed  Article 14(13) – Evident Premeditation - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - this circumstance is not applicable to cases involving accidents, accidental meetings, chance encounters, or spurs of the moment - this circumstance is not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation or those with sufficient provocation  Evident Premeditation – the essence of such is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment  Requisites: 1. the time when the offender determined to commit the crime 2. an act manifestly indicating that the culprit has clung to his determination; through an overt act 3. the date & time when the crime was committed (to compute lapse of time)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 92 of 139 Atty. Maximo Amurao

4. a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will

 Is the aggravating circumstance of Evident Premeditation compatible with the mitigating circumstance Immediate Vindication of a Relative for a Grave Offense? YES, the mitigating circumstance and aggravating circumstance can be appreciated.  Can evident premeditation be present in error in personae? NO  Can evident premeditation be present in aberratio ictus? NO  Supposing, you intended to kill Prof. Amurao, thinking it was him, you shot at the person, who turned out to be Dean Jara, can the aggravating circumstance of evident premeditation be appreciated? NO, because there should be deliberate intent to kill Dean Jara  General rule: In aberratio ictus, evident premeditation is NOT applicable  Exception: if there was a general plan to kill anyone; if offenders intended to kill anyone  Basis for aggravation: reference to the ways of committing the crime because evident premeditation implies deliberate planning of the act before executing it

Elements: 4 Classification – qualifying Legal effects? Incompatible with negligence, spur of the moment, accidental meeting, p/o, sp Vindication of grave offense? Yes Error in personae -general rule: No Except: if there is a general plan Accused has a specific victim but willing to kill a person who interfered. Yes Abberatio ictus: No  Article 14(14) – Craft, Fraud, Disguise - that (1) craft, (2) fraud, (3) disguise be employed - this paragraph contemplates THREE aggravating circumstances - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 93 of 139 Atty. Maximo Amurao

 Craft – involves intellectual trickery and cunning on the part of accused  Supposing, the accused pretended to be a customer, then he robbed the place, can the aggravating circumstance of craft be appreciated? YES  Supposing the accused pretended to be a person in authority, for example posing as Meralco officials, then they commit a crime, can the aggravating circumstance of craft be appreciated? YES  Fraud – insidious words or machinations used to induce the victim  Fraudulent machinations and grave abuse of authority will be absorbed in the crime of rape  Fraud is inherent in the crime of estafa  Disguise – resorting to any device to conceal identity  Examples: - wearing a mask - use of an assumed name - wearing a uniform of a police officer Q: Craft definition It is Qualifying-legal effects Example: A, B, C in order to kill D, told the latter they are going on camping, killed D in the forest Fraud Qualifying- legal effects Estafa-legal effect of fraud It is inherent in the commission of estafa inherent in Art. 213 Disguise When is there disguise? Qualifying-legal effect Example: Several members of Bonnet Gang committed robbery in the highway  Basis of aggravation: means employed Article 14(15) – Abuse of Superior Strength/Means to Weaken Defense - that (1) advantage be taken of superior strength or (2) means be employed to weaken the defense - this paragraph contemplates TWO aggravating circumstances - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - there should be deliberate intent to take advantage of superior strength

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 94 of 139 Atty. Maximo Amurao

 Abuse of Superior Strength – depends on the age, size, and strength of the parties; it is considered whenever there is notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of by him in the commission of the crime  If the victim was alternately attacked, there is NO abuse of superior strength  Means to Weaken the Defense  Supposing, the offender intoxicated the victim to materially weaken her, can the aggravating circumstance of means to weaken defense be appreciated? YES

Article 14(16) – Treachery (Alevosia) - a specific aggravating circumstance: only applicable to crimes against persons; can treachery be appreciated in rape? YES - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - this circumstance is not applicable to cases involving accidents, accidental meetings, chance encounters, or spurs of the moment, or on-the-spot decisions to commit the crime - this circumstance is not applicable to cases attendant of negligence or carelessness - not applicable to cases attendant of passion or obfuscation or those with sufficient provocation Treachery When is there treachery Qualifying and specific- crimes against person Qualifying-change the nature of the crime Incompatible with negligence, sufficient provocation, passion or obfuscation Can co-exist with voluntary confession of guilt? Yes. With voluntary surrender? Yes. They are not inconsistent with… BUT IS IT STILL ACCURATE THAT THIS QUALIFYING AGGRAVATING CIRCUMSTANCE CANNOT BE OFFSET BY ANY MITIGATING CIRC? Yes. Different functions. One is to change the nature of the felony. (AGG) Other is to reduce penalty by one period after the offense is qualified (MIT) Does a privileged mit. Circ. Offset a qualifying aggravating? NO. -Function of qualifying agg. Circ. Is to change the nature of the offense for which the accused stands to be prosecuted.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 95 of 139 Atty. Maximo Amurao

-Role of privilege mitigating circ. Is to reduce the penalty by one or two degrees as the case may be from the proper penalty imposed on the offense as qualified. Can co-exist with vindication for a grave offense? Yes. Kill neighbor W/o treachery- Homicide (reclusion temporal) w/ treachery- Murder (reclusion perpetua to death) with 1 mit circ. (RP in medium, RP in minimum) with 1 priv. mit circ. RT (one degree lower from RT) Treachery can be appreciated in RAPE? Yes, crime against persons. In a prosecution for rape, by treachery and abuse of superior strength or craft, fraud, disguise- absorbed in treachery In prosecution for MURDER qualified by treachery and evident premeditation. Can EP be appreciated so as to increase penalty in maximum? NO. absorbed in treachery. Same with inundation, fire, poison, explosion, price, reward or promise. Aid of armed men, persons who afford impunity, nighttime, calamities or misfortune. ALL QUALIFYING AGGRAVATING CIRC. Enumerated in People vs. Palaganas can be absorbed by treachery. Supposing you killed your neighbor with evident premeditation and employed means to weaken defense and used disguise and took advantage of deep flood. How many qualifying? 4 Assuming there was treachery, how many? 5 Is it necessary for the court to consider all 5 to change the nature of the felony? No. Treachery will suffice. Now, what will happen to the other 4 aggravating circ? Deemed absorbed in treachery. They can no longer be appreciated to impose penalty in the maximum. TESTS in TREACHERY. 1. Is the attack sudden and unexpected? 2. Was the victim given an opportunity for defense? 3. Was the means employed deliberate and consciously adopted? (3rd test is the most important.) Incompatible with casual encounter- even if 1 and 2 were present, if 3 is lacking, there is no treachery.

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 96 of 139 Atty. Maximo Amurao

Incompatible with accidental meeting- spur of the moment. Incompatibel if killing was preceded by a heated argument. (place the victim on guard to be prepared for any attack) Entering carpark, vacant lot Another vehicle hurrying towards the slot. You got in first. There was a heated argument. He warned you, Babalikan kita. After two minutes shot you. Was there treachery? None. If killing was preceded by threat, treachery? No. Lacking question no. 2. When attack consists of 2 or more stages Aggression is interrupted- fatal blow-there was treachery Continuing-treachery must be present at the inception Example of #1 (see green notebook) A saw his enemy B w/o any warning from behind, inflicted stab wounds. B was able to avoid. Open fight followed, B fled. A immediatelt behind, stabbed B. B died. Was there treachery? None. Treachery was not consciously adopted at the inception and the aggression being continuing. Example of #2. People v. Canete, US vs. Baluyot A sa B in a bar. A challenged his enemy B in a fight. They fought inside the bar. A hit B in the back by pipe, B died. What crime? Homicide only. Chance encounter, not treachery. Accused found to be intoxicated under influence of drugs? MURDER. Influence of illegal drugs qualifies crime from homicide to murder. (RA 9165 Comprehensive Dangerous Drugs Act of 2002) Supposing victim warned not to enter a certain area while walking along the road, somebody stabbed him from behind, treachery? YES. General warning is not enough to remove treachery.

 Is the aggravating circumstance of Treachery compatible with the mitigating circumstance Immediate Vindication of a Relative for a Grave Offense? YES, because there was intent to take revenge  Rules regarding Treachery 1. applicable only to crimes against persons

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 97 of 139 Atty. Maximo Amurao

2. means, methods, or forms need not insure accomplishment of crime; only to insure execution 3. the mode of attack must be consciously adopted  Requisites 1. That at the time of the attack, the victim was not in a position to defend himself 2. That the offender consciously adopted the particular means, method or form of attack employed by him  What is important to determine are the following: - the victim’s ability to defend himself - the mode of attack was consciously adopted

 Important questions to answer: 1. Was the attack sudden and unexpected? 2. Did the offended have any opportunity to defend himself? 3. Was the mode the attack deliberately or consciously adopted by the accused to insure execution without risk to the offender?  If the answer to all these questions is YES; then treachery is present  Summary of the rules: 1. When the aggression is a single and continuous act, it must be present right at the inception or present in the beginning of the assault 2. When the assault is not continuous, or the attack is divisible into two or more stages, or interrupted, it is sufficient that treachery was present at the time of the mortal blow was inflicted.

 Supposing, there was a heated argument between the offender and the offended before they attacked each other, can the aggravating circumstance of treachery be appreciated? NO, either or both parties should have been prepared  Supposing, there was a warning from the offender, then after a few minutes he attacked the victim, can the aggravating circumstance of treachery be appreciated? NO, because there was a chance to defend himself and pose a risk to the offender  Supposing, your enemy was sleeping, you tapped him, then you shot him as soon as he awakened, can the aggravating circumstance of treachery be appreciated? YES

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Supposing, the victim’s hands and feet were tied, then mortal wounds were inflicted on the victim, can the aggravating circumstance of treachery be appreciated? YES  Supposing, the offender buried half of the victim’s body, then he hacked the victim to death, can the aggravating circumstance of treachery be appreciated? YES  Supposing, the accused shot the victim who was tied to a coconut tree, can the aggravating circumstance of treachery be appreciated? YES  Supposing, there was a dispute over a parking space, then the accused shot the victim, can the aggravating circumstance of treachery be appreciated? NO  Supposing, the victim suffered frontal mortal wounds, immediately, can the aggravating circumstance of treachery not be appreciated? NO, because having frontal wounds is NOT conclusive that there was no treachery  Supposing, the victim suffered mortal wounds at the back, immediately, can the aggravating circumstance of treachery be appreciated? NO  Note: The location of the wounds does not give rise to the presumption of the presence of treachery  Supposing, the victim hid behind a drum where he could not be seen by the offender, the offender, knowing that the victim was hiding behind the drum shot at the drum; the bullet penetrated the drum and hit the victim which caused his death, can the aggravating circumstance of treachery be appreciated? YES, because the victim was not in a position to defend himself  Supposing, there was an agreement to fight  Treachery cannot be presumed; must be proved by clear and convincing evidence  In treachery, it is not necessary that the person intended to be killed was not the one actually killed  According to Prof. Amurao, treachery is a politician and a “buwaya”, because it takes everything; because treachery absorbs all other aggravating circumstances  Basis for aggravation: means and ways employed  Additional notes from Prof. Amurao: - If the offender was under the influence of drugs in the crime of murder or homicide, this can be considered a qualifying aggravating circumstance, even in the absence of treachery (pursuant to RA 9165) - the use of an unlicensed firearm = a special aggravating circumstance for the crime of murder or homicide; before it was separately prosecuted, but now unlawful possession is only a special aggravating circumstance that can increase the penalty to the maximum; no separate prosecution  Article 14(17) – Ignominy

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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- that means be employed or circumstances brought about which add ignominy to the natural effects of the act - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  Ignominy – a circumstance pertaining to the moral order which adds disgrace and obloquy to the material injury caused by the crime  Applicable to crimes against chastity, less serious physical injuries, light or grave coercion and murder  Effect of ignominy: the crime becomes more humiliating or to put the offended party to shame  Supposing, a woman was raped in the presence of her husband and children, can the aggravating circumstance of ignominy be appreciated? YES  Supposing, a woman was raped while cogon grass was wrapped around the penis of the offender, can the aggravating circumstance of ignominy be appreciated? Prof. Amurao thinks that this scenario falls under the aggravating circumstance of cruelty  Basis for aggravation: means employed

IGNOMINY Art, 18 and 19- PD 532, accomplices in PD 532 Art. 19 accessories- Anti-fencing law PD 1829 (Obstruction of Justice) Art. 29 Preventive Imp and crediting Victim all wounds frontal Treachery cannot be appreciated? No. Mere presence of frontal wound is not conclusive that no treachery was employed neither will presence of back wounds be conclusive that treachery was present. Absent any proof as to how wound was inflicted. Victim has just awaken, still drowsy when attacked. Treachery? Yes. Question Hour: Amurao Speaking. When there are 2 qualifying, one will suffice to change the nature of the crime. What will happen to the other qualifying? The other will be considered as generic aggravating circumstance- penalty to the maximum. (Except treachery, because treachery will absorb them) N.B. Other qualifying circ. Not in art 248 (murder) e.g. craft, fraud, or disguise. They are means of treachery, absorbed in treachery in Art. 248.)

 Article 14(18) – Unlawful Entry

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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- that the crime be committed after an unlawful entry - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  Unlawful Entry – an entrance is effected by a way not intended for  Purpose – to effect entrance not for escape  Supposing, the window was used to gain entry into the house, can the aggravating circumstance of unlawful entry be appreciated? YES  Supposing, the owners of the house commonly use the window as their ordinary means to enter the house, then the accused entered the door, can the aggravating circumstance of unlawful entry be appreciated? YES  Unlawful entry is inherent (thus cannot be appreciated as an aggravating circumstance) in the following crimes: - robbery with force upon things - violation of domicile (committed by public persons) - trespass to dwelling (committed by private individuals) Basis for aggravation: means and ways employed  Article 14(19) – Breaking Wall - that as a means to the commission of a crime, a wall, roof, floor, door or window be broken - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  To effect entrance only  Should be as a means to commit to crime  Supposing, the accused intended to kill his next-door neighbor by breaking the wall separating them, then he shot the neighbor, can the aggravating circumstance of breaking wall be appreciated? YES  Breaking wall is inherent in robbery with force upon things  Basis for aggravation: means and ways employed  Article 14(20) – Aid of Minor or by Means of Motor Vehicles

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- that the crimes be committed (1) with the aid of persons under 15 years of age or (2) by means of motor vehicles, airships or other similar means - this paragraph contemplates TWO aggravating circumstances  Aid of Minor - a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - involves the taking advantage of the child’s immaturity or innocence  Use of Motor Vehicles - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME - the offender should deliberately seek for the use of the vehicle - the use of the motor vehicle must be the means used to commit the crime - should facilitate the commission of the crime  Supposing, the accused robbed a house then found a car in front of the house which he used for his escape, can the aggravating circumstance of use of motor vehicle be appreciated? NO, because the crime was already accomplished  Supposing, the accused robbed the passengers in a bus, can the aggravating circumstance of use of motor vehicle be appreciated? YES, even if it is a public vehicle, the circumstance can be appreciated  Supposing, a taxicab was hired, then an argument ensued inside where the accused killed the victim, can the aggravating circumstance of use of motor vehicle be appreciated? NO, because the motor vehicle was just incidental to the crime  Are motorized bikes considered? YES  What if it is a motorized bike but the motor is not used? YES  Are road-rollers or “pison” considered? NO, because it is not motorized as contemplated by the LTO  Use of motor vehicles is inherent in the crime of carnapping  Basis for aggravation: means and ways employed  Article 14(21) – Cruelty - that the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission - a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME  Cruelty – when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing the victim unnecessary physical pain in the consummation of the criminal act

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Requisites: 1. That the injury caused be deliberately increased by causing another wrong 2. That the other wrong be unnecessary for the execution of the purpose of the offender  Is there cruelty when it is done against a dead body? NO, because it did not prolong pain since the person was already dead  Is there cruelty when it is done against an unconscious person? YES  Supposing, a dead person was found with 125 stab wounds, can the aggravating circumstance of use of motor vehicle be appreciated? NO, because the number of wounds is immaterial with cruelty  Ignominy – moral suffering Cruelty – physical suffering prolonged  Cruelty cannot be presumed  Basis for aggravation: ways employed

Article 15 - those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission  The following are alternative circumstances: 1. Relationship 2. Intoxication 3. Degree of Instruction and Education of the Offender  Article 15(1) – Relationship - considered when the offended party is the: a. spouse b. ascendant c. descendant d. legitimate, natural, adopted sibling e. relative by affinity Q: Supposing, a stepdaughter was raped by her stepfather, can the alternative circumstance of relationship be appreciated? YES  Relationship is mitigating in crimes against property (RUFA):

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes 1. robbery

3. fraudulent insolvency

2. usurpation

4. arson

Page 103 of 139 Atty. Maximo Amurao

 Relationship is exempting in crimes of theft, swindling, or malicious mischief if the offender and offended live together  Relationship is aggravating in crimes against persons when the offended is a relative of higher degree than the offender or when the offender and offended are parties of the same level  If the offended is a relative of lower degree, in the crime of less serious and slight physical injuries, relationship is mitigating  If the offended is a relative of higher degree, in the same crimes, relationship is aggravating  When the crime is homicide or murder, which resulted to the death of the victim, relationship is aggravating, regardless of degree.  In crimes against chastity, relationship is ALWAYS aggravating  Article 15(2) - Intoxication a. mitigating when: - the drinking is not habitual; or accidental - if the intoxication is not subsequent to the plan to commit a crime  Reason for mitigation: exercise of will power is impaired b. aggravating when: - if habitual - if intoxication is intentional (fully knowing its effects as a stimulant) or subsequent to the plan to commit the crime  Reason for aggravation: bolstered courage to commit the crime (intentional); lessens resistance to evil thoughts (habitual)  Article 15(3) – Instruction or Education - what is measured is the degree of intelligence not the formal education  Low degree of instruction/Lack of education – mitigating  High degree of instruction; offender avails of intelligence - aggravating  Supposing, the crime was done not in a civilized society, can the alternative circumstance of low degree of instruction as a mitigating circumstance YES, it is a mitigating circumstance  Supposing, the accused killed a person, can the alternative circumstance of low degree of instruction as a mitigating circumstance be appreciated? NO, because killing is inherently wrong

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Supposing, the accused committed the crime of treason, can the alternative circumstance of low degree of instruction as a mitigating circumstance be appreciated? NO, because love for country is a natural feeling that requires no degree of instruction  Supposing, accused committed crimes against chastity, can the alternative circumstance of low degree of instruction as a mitigating circumstance be appreciated? NO  Supposing, accused committed crimes against chastity, can the alternative circumstance of low degree of instruction as a mitigating circumstance be appreciated? NO  Supposing, accused committed the crime of murder, can the alternative circumstance of low degree of instruction as a mitigating circumstance be appreciated? NO  Supposing, a lawyer committed the crime of estafa, can the alternative circumstance of high degree of instruction as an aggravating circumstance be appreciated? YES  Supposing, a doctor prepared a special poison to kill the victim, can the alternative circumstance of high degree of instruction as an aggravating circumstance be appreciated? YES

Article 16  ARTICLE 16 – WHO ARE CRIMINALLY LIABLE -the following are criminally liable for grave and less grave offenses: 1. Principals 2. Accomplices 3. Accessories - the following are criminally liable for light felonies: 1. Principals 2. Accomplices  Accessories are not liable for light felonies because the social wrong is so small  Rules on light felonies 1. punishable only when consummated 2. when committed against persons or property and punishable in the attempted or frustrated 3. only principals and accomplices are liable 4. accessories are not liable even in crimes against persons or property  Only natural persons can be active subjects of a crime contemplated under Article 16 of the RPC Reasons: 1. Under the Revised Penal Code, persons act with personal malice or negligence; artificial/judicial persons can’t act with malice or negligence 2. A juridical person like a corporation can’t commit a crime that requires willful purpose or malicious intent

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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3. There is substitution of deprivation of liberty for pecuniary penalties in insolvency cases 4. Other penalties like destierro and imprisonment = executed on individuals only

Article 17  ARTICLE 17 – PRINCIPALS - the following are considered principals: 1. those who take a direct part in the execution of the act (By Direct Participation) 2. those who directly force or induce others to commit it (By Inducement) 3. those who cooperate in the commission of the offense by another act without which it would not have been accomplished (By Indispensable Cooperation)  Article 17(1) – Principals by Direct Participation (PDP) - Requisites: 1. they participated in the criminal resolution 2. they carried out their plan and personally took part in its execution by acts which directly tended to the same end  In multiple rape, all the rapists are equally liable, regardless of degree of participation  Without the 2nd requisite, there is only conspiracy = thus there is no criminal liability  Article 17(2) – Principals by Inducement (PI)  Principals by Inducement are ONLY liable when the Principal by Direct Participation committed the act induced  Two ways of becoming principal by induction 1. by directly forcing another to commit a crime 2. by directly inducing another to commit a crime  By directly forcing another to commit a crime (no conspiracy involved) 1. by using irresistible force 2. by causing uncontrollable fear  By directly inducing another to commit a crime 1. by giving price or offering reward or promise = collective criminal responsibility 2. by using words of command

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Requisites for the Principal by Inducement 1. that the inducement be made directly with the intention of procuring the commission of the crime 2. that such inducement be the determining cause of the commission of the crime  Inducement – may be by acts of command, advice, or through influence or agreement for consideration; the words of advice or influence must actually move the hands of the principal by direct participation  The inducement must be the determining cause for the commission of the crime by the principal by direct participation, that is without such inducement the crime would not have been committed  The inducement must precede the act and must be so influential  If there is a price or reward involved, w/o prior promise = no inducement  By using words of command - the words must be the moving cause of the offense 1. that the one uttering the words of command must have the intention of procuring the commission of the crime 2. that the one who made the command must have an ascendancy or influence over the person who acted 3. that the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion Efficacious – it would seem or it was furnished that the material executor or principal by direct participation had reason to believe or was made to believe that the deceased did something wrong 4. the words of command must be uttered prior to the commission of the crime; when the words were uttered after the commencement of the crime = no inducement 5. the material executor has no personal reason to commit the crime  Difference bet. Principal by Inducement & Offender by Proposal PRIN. BY INDUCEMENT OFFENDER BY PROPOSAL - inducement to commit the crime - inducement to commit the crime - liable only when crime is committed - mere proposal to commit is by the principal by direct participation punishable in treason & rebellion; person proposed to shouldn’t commit the crime - inducement involves any crime

- applies in treason & rebellion only

 Article 17(3) - Principal by Indispensable Cooperation (PIC) - those who cooperate in the commission of the crime by another act without which it would not have been accomplished

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Cooperate – means to desire or wish in common a thing, but that common will or purpose does not necessarily mean previous understanding for it can be explained or inferred from the circumstances of each case  Requisites: 1. participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged 2. cooperation in the commission of the crime by performing another act, without which it would not have been accomplished  First requisite - requires participation in the criminal resolution - there must be conspiracy - concurrence is sufficient - cooperation indispensable  Second requisite - cooperation MUST be indispensable - if dispensable, accused is only an accomplice  Collective Criminal Responsibility (CCR) – when the offenders are criminally liable in the same manner and to the same extent; penalty is the same for all: a. Principals by Direct Participation – CCR b. Principals by Inducement – CCR with Principals by Direct Participation, except those who directly forced another to commit a crime c. Principals by Indispensable Cooperation – CCR with Principals by Direct Participation  Individual Criminal Responsibility (ICR) – in the absence of previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him

Article 18  ARTICLE 18 - ACCOMPLICES - Accomplices are persons who, not being included in Article 17, cooperate in the execution of the crime by previous or simultaneous acts

 Quasi-Collective Criminal Responsibility – some of the offenders in the crime are principals; others are accomplices

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Participation-proved by positive &competent evidence; can’t be presumed  Accomplices have - no previous agreement - no understanding

with the Principal by

- not in conspiracy

Direct Participation

 Difference between an Accomplice and a Conspirator ACCOMPLICES CONSPIRATORS - they know & agree with the criminal design - they come to know about the

- they know & agree with the criminal design - they know the criminal intention

criminal design after the conspirators

because they have decided upon

have decided on it

the course of action

- only concurs to the commission of

- they decide to commit the crime

the crime; they do not decide; they merely assent to it and cooperate - mere instruments performing acts

- they are the authors of the crime

NOT essential to the perpetration of the crime  Requisites for an accomplice: 1. that there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose 2. that he cooperates in the execution of the offense by previous and simultaneous acts with the intention of supplying the material or moral aid in the execution of the crime in an efficacious way 3. that there be a relation between the acts done by the principal and those attributed to the person charged as accomplice

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Rules on Accomplices: 1. the one who had the original criminal design is the person who committed the resulting crime (there should be a principal by direct participation) 2. an accomplice cooperates only with previous or simultaneous acts 3. an accomplice does not inflict more or most serious wounds  Moral aid – may be through advice, encouragement or agreement  Examples of previous acts - lending of a weapon, knowing of the purpose - furnishing a drug or sleeping drug, knowing the purpose is for rape  Examples of simultaneous acts - disarming the victim while the principal is attacking - preventing the victims from receiving help - acted as a look-out, without conspiracy - supplying material or moral aid - distracting the victim

Article 19  ARTICLE 19 - ACCESSORIES - Accessories are those who, having knowledge of the commission of the crime and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. by profiting themselves or assisting the offender to profit by the effects of the crime 2. by concealing or destroying the body of the crime or the effects or instruments thereof, in order to prevent its discovery 3. by harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive or is known to be habitually guilty of some other crime

 Accessories do not participate; they do not cooperate  Accessories must have knowledge of the commission of the crime, then takes part subsequent to the commission, eg. fencing  Knowledge may be acquired after the acquisition of stolen property

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Examples of by profiting themselves by the effects of the crime - received stolen property and used it - shared in the reward for murder  Examples of assisting the offender by the effects of the crime - sells the stolen property for the offender’s benefit - runners or couriers for picking-up or getting the ransom money

 Examples of by concealing or destroying the body of the crime (or the corpus delicti) - assisted in the burial to prevent discovery - concealing or hiding weapons used in the commission of the crime - furnishes the means to stage the crime scene  Requisites for Article 19(3): a. – accessory is a public officer - harbors, conceals, assists in the escape - acts with abuse of his public functions - crime of principal is any crime not a light felony

b. - accessory is a private person - harbors, conceals, assists in the - escape - crime of principal is treason, parricide, murder, attempt against the life of the President, a known habitual criminal

 If the principal is acquitted by exemption, accessory may still be convicted  Apprehension and conviction of the principal is not necessary for the accessory to be held criminally liable  If the principal is at-large or not yet apprehended, the accessory may be prosecuted and convicted  Anti-Fencing Law of 1979 (Presidential Decree No.1612)  Fencing – is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft  Fence – includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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Article 20  ARTICLE 20 – ACCESSORIES EXEMPT FROM CRIMINAL LIABILITY - those who are exempt are the following: a. spouses

c. descendants e. relatives by affinity w/in same degrees

b. ascendants d. legitimate, natural, adopted siblings - except those that fall under Article 19(1)

 Ground for exemption – ties of blood; preservation of the cleanliness of one’s name  Nephew or niece not included  Accessories not exempt if they: - profited by the effects of the crime - assisted the offender to profit  PENALTIES  Penalty – the suffering that is inflicted by the State for the transgression of a law  Different juridical conditions of penalty - productive of suffering - certain - commensurate with the offense

- equal for all

- personal

- correctional

- legal  Purpose of punishment: To secure justice  Theories justifying penalty 1. Prevention – prevent or suppress the danger to the State 2. Self-defense – right to punish; protect society from the threat or wrong 3. Reformation – correct and reform the offender 4. Exemplarity – punishment for deterrence 5. Justice – punishment as an act of retributive justice

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Social defense & exemplarity: justifies the imposition of the death penalty  The penalties under the RPC have a 3-fold purpose 1. Retribution or expiation – penalty commensurate with the gravity of the crime 2. Correction or reformation – shown by rules that regulate execution of penalties consisting in deprivation of liberty 3. Social defense – shown by its inflexible severity to recidivists and habitual delinquents

Article 21-29  ARTICLE 21 – PENALTIES THAT MAY BE IMPOSED - No felony shall be punishable by any penalty not prescribed by law prior to its commission  ARTICLE 22 – RETROACTIVE EFFECT OF PENAL LAWS - Penal laws shall be retroactive in so far as they favor the person guilty of a felony and is not a habitual criminal    

General Rule – prospective effect Exception – favorable to the accused Reason for the exception – former laws repealed or amended are unjust Article 22 does not apply to the provisions of the Revised Penal Code; but applies to (1) penal laws enacted before the RPC, and (2) penal laws enacted subsequent to the RPC, which are more favorable to the accused  Criminal Liability of repealed laws still subsist when: 1. there is a reenactment of the law 2. when the repeal is by implication 3. when there is a saving clause  ARTICLE 23 – PARDON BY THE OFFENDED PARTY - does not extinguish criminal action except in Article 344 of the RPC; but an express waiver can extinguish the civil liability for the injured party  A pardon by the offended party does not extinguish criminal action, because a crime committed is a felony or offense committed against the State, eg. estafa - even the offender pays damages to the injured party, the offender can still be prosecuted  Compromise does not extinguish criminal liability  Under Article 344, in the crimes of seduction, abduction, rape or acts of lasciviousness, there shall be no criminal prosecution if the offender is expressly pardoned by the parents or grandparents or guardian of the offended party. In the crime of adultery or concubinage, both offenders (the offending spouse and paramour) must be pardoned by the offended party

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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 Pardon under Article 344 must be made before the institution of criminal prosecution, unless after the institution of the criminal action, the offender and the offended decide to get married; This pardon is only a bar to criminal prosecution  ARTICLE 24 – MEASURES OF PREVENTION AND SAFETY THAT ARE NOT CONSIDERED AS PENALTIES 1. Arrest and Temporary Detention 5. Deprivation of Rights with 2. Commitment of a Minor

Reparations

3. Suspension from Employment 4. Fines & Other Corrective Measures, administrative or disciplinary in nature ARTICLE 25 – CLASSIFICATION OF PENALTIES  Principal Penalties Capital punishment

Light penalties

Death

Arresto Menor Fines

Afflictive penalties

Public Censure

Reclusion Perpetua Reclusion Temporal Perpetual or Temporary absolute disqualification

Penalties common to the

Perpetual or Temporary special disqualification

three preceding classes

Prision Mayor

Fine Bond to keep the peace

Correctional penalties Prision Correccional Arresto Mayor Suspension Destierro

 Accessory Penalties - Perpetual or Temporary absolute disqualification - Perpetual or Temporary special disqualification

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 114 of 139 Atty. Maximo Amurao

- Suspension from public office, the right to vote and be voted for, the profession or calling - Civil interdiction - Indemnification - Forfeiture of confiscation of instruments and proceeds of the offense - Payment of cost

Classification of penalties according to subject matter 1. Corporal (death) 2. Deprivation of freedom (reclusion, prision, arresto) 3. Restriction of freedom (destierro) 4. Deprivation of rights (disqualification and suspension) 5. Pecuniary (fine)  ARTICLE 26 – FINES (AFFLICTIVE, CORRECTIONAL, LIGHT)  Fines and Bond to keep the Peace are: 1. Afflictive – over P6,000.00 2. Correctional – P200.00 – P6,000.00 3. Light Penalty – less than P200.00  ARTICLE 27 – DURATION OF PENALTIES 1. Reclusion perpetua – 20 yrs. and 1 day to 40 yrs. 2. Reclusion temporal – 12 yrs. and 1 day to 20 yrs 3. Prision mayor – 6 yrs. and 1 day to 12 yrs. 4. Prision correctional, suspension, destierro – 6 months and 1 day to 6 yrs. 5. Arresto mayor – 1 month and 1 day to 6 months 6. Arresto menor – 1 day to 30 days 7. Bond to keep the peace – the period during which the bond shall be effective is discretionary on the court  ARTICLE 28 – COMPUTATION OF PENALTIES

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 115 of 139 Atty. Maximo Amurao

(reading matter)  ARTICLE 29 – PREVENTIVE IMPRISONMENT  Preventive imprisonment – an accused undergoes this when the crime charged is non-bailable, or even if bailable, he cannot furnish the required bail  The full-time or four-fifths of the time during which offenders have undergone preventive imprisonment shall be deducted from the penalty imposed

Article 30-35  ARTICLES 30-35 – EFFECTS OF PENALTIES (reading matter)  Civil interdiction – shall deprive the offender during the time of his sentence of the rights parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property, and of the right to dispose of such property by any act or any conveyance

Article 36 ARTICLE 36 – PARDON; ITS EFFECTS - shall not restore the right to hold office and the right of suffrage, unless expressly restored by the terms of the pardon - shall not exempt the culprit from civil liability  Difference bet. Pardon by the President & Pardon by the Offended PARDON BY PRESIDENT PARDON BY OFFENDED - extinguishes criminal liability

- does not extinguish criminal liability, except in Article 344

- cannot include extinction of civil liability

- offended party can waive right to claim civil liability

- should be given only after conviction - should be given before the institution of the criminal action - may be extended to any of the

- must be extended to both offenders

offenders

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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Page 116 of 139 Atty. Maximo Amurao

Article 37 ARTICLE 37 – COSTS 1. Fees 2. Indemnities, in the course of judicial proceedings

Article 38 ARTICLE 38 – PECUNIARY LIABILITIES; ORDER OF PAYMENT 1. The reparation of the damage caused 2. Indemnification of the consequential damages 3. Fine 4. Costs of proceedings  The order of payment is as stated

Article 39 ARTICLE 39 – SUBSIDIARY PENALTY  Subsidiary Penalty – a subsidiary personal penalty to be suffered by the convict who has no property with which to meet the fine, at the rate of one day for each eight (P8) pesos, subject to the rules provided for in Article 39  Subsidiary penalties should be expressly specified in the conviction because without it, the accused cannot be compelled to comply with it

Article 40-44 ARTICLES 40-44 – ACCESSORY PENALTIES OF ARRESTO (reading matter) - Accessory penalties do not have to be specified expressly in the judgment of conviction - usually, the specific accessory penalties are not specified, they are said generally

Article 45-47  ARTICLE 45 – CONFISCATION AND FORFEITURE - the proceeds of the crime must first be submitted to the jurisdiction of the courts, and also the tools used; if not submitted, the courts cannot adjudicate on the proceeds and tools whether they would be disposed in favor of the state

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 117 of 139 Atty. Maximo Amurao

 ARTICLE 46 – PENALTY TO BE IMPOSED UPON PRINCIPALS IN GENERAL - the penalty prescribed by law for the commission of a felony shall be imposed upon the principals - the law prescribes a penalty for a felony in general terms, it shall be understood as applicable to the consummated felony  Penalty in general terms shall be imposed: 1. upon the principals 2. for the consummated felony  Exception – when the law fixes a penalty for frustrated or attempted felony  ARTICLE 47 – WHEN DEATH PENALTY NOT TO BE IMPOSED 1. minors under 18 at the commission of the crime (repealed by RA 9344) 2. persons over 70 years old  The Death Penalty should be imposed on cases where the law specifies it  The Death Penalty as of now is deemed to be irrelevant

Article 48 ARTICLE 48 – COMPLEX CRIMES 1. When a single act constitutes two or more grave or less grave felonies (compound crimes) 2. When an offense is a necessary means for committing the other (complex crime proper)  There must be at least two crimes  Complex crime = ONLY one crime  Complex crimes are more favorable to the accused because instead of being convicted of two separate counts of the same crime, it is considered as only one  Compound Crime - Requisites: 1. that only a single act is performed by the offender 2. that the single act produces (i) 2 or more grave felonies, (ii) one or more grave & one or more less grave felonies, (iii) 2 or more less grave felonies

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 118 of 139 Atty. Maximo Amurao

 The single act should produce a grave felony or a less grave felony or a combination of both  Light felonies produced by the same single act should be treated and punished as separate offenses or may be absorbed by the grave felony  Supposing, you shot your neighbor then the bullet hit two children; the result was your neighbor died, two children slightly injured, the result was 1 grave and 2 light felonies, is the crime complex or separate? Separate, because the single act should produce a grave or less grave felony only  Supposing, a single criminal act produced 1 grave felony and 10 light felonies, is the crime complex or separate? Separate  Supposing, a single criminal act produced 1 less grave felony and several light felonies, is the crime complex or separate? Separate  Supposing, a single criminal act produced a crime punishable by the RPC and a crime punishable by special law, is the crime complex or separate? Separate, considered as separate violations  Supposing, Prof. Amurao throws a grenade in class, 5 students died, is the crime complex or separate? Complex  Supposing, using the same facts above, in addition 3 light felonies were produced, is the crime complex or separate? Separate  Supposing, Prof. Amurao switched the machine gun to automatic and shot at the students with one single act of pressing the trigger, producing several injuries, is the crime complex or separate? Separate, because the what is considered is the no. of bullets discharged (People v. Desierto)  Supposing, Prof. Amurao switched the machine gun to not automatic and fired one bullet aimed at someone but hit 3 others producing serious physical injuries, is the crime complex or separate? Complex  Supposing, the act of firing a machine gun produces the crimes of attempted murder and physical injuries, is the crime complex or separate? Separate, as held by the Court of Appeals  Supposing, two shots were fired directed against two different persons, is the crime complex or separate? Separate  Supposing, in a notorious village, a commander ordered all his soldiers to shoot at the residents, is the crime complex or separate? Complex, the SC held in People v. Lawas that it was a complex crime because there was a single offense since there was a single criminal impulse/intent/purpose  Supposing, a person stole the fighting cocks of his neighbor alternately with three separate, independent acts, is the crime complex or separate? Complex, as held by the SC in People v. De Leon, the criminal act was done on the same occasion and the offender was motivated by one criminal impulse  Supposing, a libelous article was published defaming 5 congressmen specifically identified by their names, is the crime complex or separate? Separate, because there are as many crimes of libel as there are persons libeled, provided that the persons are expressly specified; because each of the 5 congressmen may file for libel  Supposing, using the same facts above except that the congressmen were not identified, is the crime complex or separate? Complex  Supposing, in a local publication, news writers wrote that the Herrera doctors are inefficient, is the crime complex or separate? Complex, because the identification was in general terms, not specifically identified Complex Crime Proper

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 119 of 139 Atty. Maximo Amurao

- Requisites: 1. that at least two offenses are committed 2. that one or some of the offenses must be necessary to commit the other 3. that both or all the offenses must be punished under the same statute  Necessary means not equivalent to indispensable means  Supposing, the accused kidnapped a girl with intent to kill, brought the victim somewhere then killed her, is the crime complex? NO, the crime is only murder, because the kidnapping was only a means to commit the crime of murder  Supposing, law students made a falsified solicitation letter and collected money, is the crime complex? YES, the falsification of the private document was necessary for the crime of estafa  Supposing, a public official committed malversation through falsification of public documents, is the crime complex? YES, because the falsification was necessary to commit malversation  Supposing, the accused killed his victim in a building, then committed arson to conceal the murder, is the crime complex? NO  In the crimes of estafa and falsification, you look at the crime first committed if it was necessary for the commission of the other; the common element in estafa and falsification is the intent to cause damage  Supposing, a city treasurer malversed P5million pesos out of taxes then falsified documents to conceal the malversation, is the crime complex? NO, the crimes are separate  Supposing, in the crime of rebellion, an NPA commander burned villages and killed the villagers in furtherance of his acts of rebellion, is the crime complex? NO, because the acts he committed were absorbed in the crime of rebellion  Supposing, in the crime of rebellion, the NPA commander killed someone for personal reasons, is the crime complex? NO, the crimes are separate  In the crimes of treason or rebellion, when common crimes are committed, (1) in furtherance of or is related to treason or rebellion, the crimes are absorbed, but (2) for personal reasons or for a private purpose, the crimes are separate  There is no complex crime of rebellion with common crimes  Special Complex Crimes - Rape with Homicide

- Robbery with Serious Physical Injuries

- Robbery with Homicide

- Kidnapping with Murder or Homicide

 Express provisions in the Revised Penal Code that cannot be complex - Article 129: search warrant obtained maliciously

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 120 of 139 Atty. Maximo Amurao

- Article 235: maltreatment of prisoners - Direct Bribery = cannot be complexed  Article 48 is intended to favor the culprit or accused  The penalty for complex crimes is the penalty for the most serious crime, the same to be applied in its maximum period  Two felonies in a complex crime punishable by imprisonment and fine = only the imprisonment is imposed

Article 49  ARTICLE 49 – PENALTY FOR PRINCIPALS OF CRIME COMMITTED WAS DIFFERENT FROM WHAT WAS INTENDED  applicable only to mistake in identity Steps 1. identify lesser penalty 2. whichever penalty is prescribed by law, 3. the lesser penalty is always applied or imposed

Article 50-57  ARTICLES 50-57 – DEGREES TO WHICH PENALTIES SHOULD BE LOWERED (reading matter) Participants’ liability lowered by degrees

       

consummated

frustrated

attempted

Principals

0

1

2

Accomplices

1

2

3

Accessories

2

3

4

Article 50 – Principals in a frustrated felony Article 51 – Principals in an attempted felony Article 52 – Accomplices in a consummated felony Article 53 – Accessories in a consummated felony Article 54 – Accomplices in a frustrated felony Article 55 – Accessories in a frustrated felony Article 56 – Accomplices in an attempted felony Article 57 – Accessories in an attempted felony

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 121 of 139 Atty. Maximo Amurao

 Basis for the determination - under the RPC, penalties can be reduced by degrees 1. stage reached by the crime in its development (consummated, frustrated, attempted) 2. participation of persons liable (principals, accomplices, accessories) 3. privileged mitigating circumstances

 All penalties for each crime in the RPC = generally, shall always be imposed unless the law itself expressly provides, except Article 60  Degree – one whole penalty; one entire penalty or one unit of penalties enumerated in the graduated scales  Period – one of the 3 equal portions (minimum, medium, maximum)

Article 58-60  ARTICLE 58 – ADDITIONAL PENALTY UPON ACCESSORIES OF ART.19(3) - Absolute perpetual disqualification if guilty of a grave felony - Absolute temporary disqualification if guilty of a less grave felony  Article 19(3) – public officers who help the author of the crime by misusing their office and duties shall suffer the additional penalties  ARTICLE 59 – PENALTY FOR IMPOSSIBLE CRIMES - Arresto mayor, with fine of P200-P500  Basis for imposition: - social danger - degree of criminality  ARTICLE 60 – EXCEPTIONS TO ARTICLE 50-57 - shall not be applicable to cases in which the law prescribes a penalty for frustrated and attempted stages or to be imposed on accomplices or accessories

Article 61  ARTICLE 61 – RULES FOR GRADUATING PENALTIES  Divisible Penalties – divided into three, so effects of ordinary mitigating circumstances and generic aggravating circumstances can be applied

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 122 of 139 Atty. Maximo Amurao

   

Indivisible Penalties – eg. reclusion perpetua, public censure, fine First Rule and Second Rule Penalty only consists of a degree The penalty next lower by one degree = penalty immediately following the penalty prescribed by the law - single and indivisible = Reclusion perpetua - penalty next lower in degree = Reclusion temporal  Supposing, accused shot the victim qualified by treachery, but the victim survived, thus accused was convicted of frustrated murder, the penalty for murder is reclusion perpetua, but since it was frustrated, the penalty next lower in degree applies, which is reclusion temporal  Fourth and Fifth Rule  Penalty prescribed by law is 1, 2, or 3, several periods - If one period lower, go down one period in the graduated scale - If two periods lower, go down two periods in the graduated scale - If three periods lower, go down three periods in the graduated scale  Example: Prision Mayor - Supposing the penalty prescribed by law is prision mayor medium period: is in itself a degree; RPC – all divisible penalties are divided into 3 periods; prision mayor medium can be divided into maximum, medium, minimum - Prision mayor (6 years and 1 day to 12 years) 12 – 6 = 6 / 3 = 2 2 = common multiple (add 2 to the periods starting from the minimum) Minimum – 6 years and 1 day to (6+2) 8 years Medium – 8 years and 1 day to (8+2) 10 years Maximum – 10 years and 1 day (10+2) 12 years

Prision mayor medium

- Prision mayor medium (8 years and 1 day to 10 years) 10 – 8 = 2 years / 3 = 8 months 8 months = common multiple (add 8 months) Minimum – 8yrs. & 1 day to 8yrs. & 8 months

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

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Medium – 8yrs. & 8 months to 9yrs. & 4 months Maximum – 9yrs. & 4 years to 10 years  With the 3 periods of prision mayor medium now determined, the mitigating and aggravating circumstances attendant can now be applied  Third Rule - when three penalties are imposed in one (eg. Reclusion temporal – Death) - since Death is not imposed, three periods lowered immediately following

Article 62  ARTICLE 62 - EFFECTS OF THE ATTENDANCE OF MITIGATING AND AGGRAVATING CIRCUMSTANCES AND HABITUAL DELINQUENCY

 First rule: Aggravating circumstances: 1. should not themselves constitute a crime, eg. by means of fire = arson; by means derailment of a locomotive = destruction of property - Is unlawful entry a crime in itself? YES 2. should not be included in defining the crime, eg. by means of poison in the crime of murder 3. The maximum period shall be imposed regardless of mitigating circumstances if the offender is a public officer who took advantage by public position 4. The maximum period shall be imposed for members of an organized or syndicated crime group  Organized or Syndicated Crime Group – group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime  Second rule - Aggravating circumstances are not applicable if inherent in the crime, eg. evident premeditation in robbery or theft; advantage taken by public position in malversation; sex in crimes against chastity; breaking wall in malicious mischief  Third rule: Aggravating or Mitigating Circumstances arising from: 1. Moral attributes  Supposing, the victim gave sufficient provocation, which irritated the accused who called his brother for assistance, then they both killed the victim, can the mitigating circumstance of sufficient

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 124 of 139 Atty. Maximo Amurao

provocation be appreciated for both of them? NO, only to the one who was the target of the provocation (the accused) and not his brother 2. Private relations  Supposing, your neighbor slapped your mom, then you asked your friend to accompany you to kill your neighbor, can the aggravating circumstance of immediate vindication of a relative for a grave offense be appreciated for the both you? NO, only to you because it was your mom who was offended first and not your friend

3. Personal cause  Supposing, you and your friend entered your neighbor’s house, not knowing that your friend is afflicted with kleptomania, can the mitigating circumstance of illness be appreciated for the both of you? NO, illness can be appreciated only to your friend  Fourth rule: Aggravating or mitigating circumstances apply in the: - material execution of the act and in the means employed to accomplish it; only to those who had knowledge at the time of the execution 1. Material execution  Supposing, Prof. Amurao asked his student to simply kill his classmate, but the student applied cruelty when he killed his classmate, can the aggravating circumstance of cruelty be appreciated with Prof. Amurao? NO, because he had no knowledge of the material execution used.  Supposing, using the same facts above, but Prof. Amurao told his student to kill his classmate ‘at all costs’, can the aggravating circumstance of cruelty be appreciated with Prof. Amurao? YES 2. Means employed to accomplish - Principal by direct participation uses poison to commit murder without the knowledge of the Principal by inducement  Habitual Delinquency  Habitual Delinquent – a person who, within a period of 10 years from the date of release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification, found guilty for a 3rd time or oftener. A habitual delinquent shall suffer an additional penalty  Difference between Habitual Delinquent/Recidivist/Reiteracion Habitual Delinquent

Recidivism

Reiteracion

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes Crimes - specified crimes

Page 125 of 139 Atty. Maximo Amurao - 2 crimes embraced in

- 2 crimes not

the same title of the RPC embraced in the same title of the RPC Period - within 10 years

- time bet. 2 offenses is immaterial

- has served sentence st

for the 1 offense

No. of rd

nd

nd

Crimes - 3 time or oftener

- 2 time is sufficient

- 2 time is sufficient

Effects - additional penalty

- a generic aggravating

- not always an

circumstance; can be

aggravating

offset by an ordinary

circumstance

is imposed

mitigating circumstance

 Difference bet. Habitual Delinquency & Subsidiary Imprisonment Habitual Delinquent Subsidiary Imprisonment - needs to be alleged in the

- does not need to be alleged

information - should be alleged in the beginning

- comes only after the sentence of conviction

- imposes an additional penalty - imposed only when unable to pay fine - cannot be considered with a

- general allegation will suffice

general allegation, must be specifically alleged

 Requisites for a Habitual Delinquent: 1. offender has been convicted of serious or less serious physical injuries, robbery, theft, estafa, or falsification

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 126 of 139 Atty. Maximo Amurao

2. after conviction or after serving sentence again committed within 10 years from his release or date of first conviction, he was convicted of any of said crimes for the 2nd time 3. after conviction or after serving sentence for the 2nd offense again commits and within 10 years of conviction or release for the 2nd offense, commits a 3rd time or oftener  Additional Penalties 1. For the 3rd time = the penalty for the last crime + Prision correctional medium to maximum 2. For the 4th time = the penalty for the last crime + Prision mayor minimum to medium 3. For the 5th time or more = the penalty for the last crime + Prision mayor maximum to Reclusion temporal minimum  Total of last penalty and additional penalty = should not exceed 30 yrs.  If the court overlooked the imposition of an additional penalty for habitual delinquency = the offender cannot be compelled to suffer the additional penalty  In the commission of several crimes occurring on or about the same date shall be considered only as one for purposes of habitual delinquency  In the conviction for those crimes occurring on or about the same date shall also be considered as one

Article 63  ARTICLE 63 – RULES ON INDIVISIBLE PENALTIES 1. For single indivisible penalties (reclusion perpetua) – shall be applied regardless of mitigating or aggravating circumstances, eg. the crime of rape with homicide, with the mitigating circumstances of voluntary surrender, voluntary confession of guilt, and illness, the penalty shall still be reclusion perpetua because circumstances are disregarded 2. For two indivisible penalties (sub-paragraphs 1-4 are inapplicable, because there is no death penalty, therefore there’s only one indivisible penalty)  Exception to disregarding circumstances: if it is a privileged mitigating circumstance (Articles 68 & 69), or if the accused is a minor who acted with discernment = can be entitled to a penalty next lower in degree

Article 64  ARTICLE 64 – RULES FOR PENALTIES WITH 3 PERIODS - In accordance w/ Articles 76-77 whether there are attending circumstances  First rule - if neither a mitigating or aggravating circumstance is present = medium period is imposed

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 127 of 139 Atty. Maximo Amurao

 Second rule - if there is a mitigating circumstance = minimum period is imposed  Third rule - if there is an aggravating circumstance = maximum period is imposed  Fourth rule - if there is both a mitigating and aggravating circumstance = courts shall offset the circumstances according to relative weight  Fifth rule - if there are 2 or more mitigating circumstances and absolutely no aggravating circumstances = the penalty next lower in degree is imposed  Sixth rule - whatever the number or nature of aggravating circumstances = courts cannot impose a greater penalty than prescribed by law in maximum  Seventh rule - Courts can determine extent of penalty within the limits of each period  Mitigating circumstance must be ordinary = not privileged  Aggravating circumstance must be generic = not qualified or inherent

Article 65-67  ARTICLE 65 – RULES FOR PENALTIES NOT IN THREE PERIODS (reading matter)  ARTICLE 66 – IMPOSITION OF FINES (reading matter) - ¼ of the maximum fine is either added (for aggravating circumstances) or deducted (for mitigating circumstances) from the maximum fine - courts must consider: 1. mitigating or aggravating circumstances 2. wealth or means of the culprit  ARTICLE 67 – PENALTY FOR INCOMPLETE EXEMPTING CIRCUMSTANCE OF ACCIDENT - Arresto mayor maximum to prision correccional minimum (grave felonies) - Arresto mayor minimum to Arresto mayor medium (for less grave felonies)

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes

Page 128 of 139 Atty. Maximo Amurao

 Light felonies through negligence = no penalty

Article 68  ARTICLE 68 – PENALTY FOR MINORS UNDER 18 (repealed by RA 9344)  Minor under 18 who acted with discernment = penalty two degrees lower

Article 69

 ARTICLE 69 – PENALTY FOR INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES - lowered by 1 or 2 degrees  Majority of such conditions must be present  In self-defense, defense of a relative, defense of a stranger - Unlawful Aggression is indispensable

Article 70  ARTICLE 70 – SUCCESSIVE SERVICE OF SENTENCE  Simultaneous Service – if the nature of the penalties will so permit, i.e. Reclusion temporal and Perpetual Absolute Disqualification (refer to Reyes book for a complete list of penalties that ca be served simultaneously)  Successive Service – if cannot be served simultaneously (such as two jail sentences) shall follow the scale provided by Article 70 based in the order according to severity  3-fold rule – the maximum duration of the convict’s sentence shall not be more than 3-fold the length of the time corresponding to the most severe of the penalties imposed  only applies when the convict has to serve at least 4 sentences  In no case shall the sum total of penalties exceed 40 years  In the scale, Arresto menor comes before destierro because complete deprivation of liberty or imprisonment in arresto menor is more severe than destierro  Supposing, you are a judge, can you impose the sentence of 500 counts of malversation, which is each punishable by 15 yrs. of imprisonment, without violating Article 70? YES, because the 3-fold rule does not refer to the imposition of sentence but refers to the service to the penalty; the courts can sentence no matter what and no matter how much  The 3-fold rule is the concern of the Director of Prisons, NOT of the courts

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 If the sum total of all the penalties does not exceed the most severe multiplied by 3, the 3-fold rule does not apply  Duration of convicts’ sentence refers to several penalties for different offenses not yet served out = has to serve continuous imprisonment

Article 71-77  ARTICLE 71 – GRADUATED SCALES  Penalties are classified between personal penalties (imprisonment) and political rights (suspension, fine, etc)  Arresto mayor is followed by destierro  ARTICLES 72-77 (reading matter)  Article 73 – Accessory penalties are deemed imposed  Subsidiary imprisonment is NOT an accessory penalty  INDETERMINATE SENTENCE LAW (ACT 4103 AMENDED BY ACT 4225) - mandatory in nature; whether the courts like it or not, they have to apply the same except for those mentioned in Sec. 2 who are disqualified  Purpose/Objectives of the ISLAW 1. to uplift and redeem valuable human materials 2. promote economic usefulness 3. prevent unnecessary and excessive deprivation of liberty  The ISLAW was enacted to benefit the accused by allowing the convict not to serve the full sentence  These objectives are attained with the application of the ISLAW  Court fixes a Maximum term and a Minimum term  After serving the Minimum term, the convict shall be entitled to parole upon evaluation of the Board of Pardons and Parole  The ‘release’ shall be evaluated by the Court whether the convict is: - fitted by training for release - reasonable probability not to commit another crime or violate the law - compatible with the welfare of society (take note of this; this was given by Prof. Amurao)  As applied in special penal laws - the Maximum term should not be more than what is prescribed - the Minimum term should not be less than what is prescribed  Example: 5 yrs and 1 day to 15 yrs - the Minimum may be anywhere from 5 yrs to 14 yrs, but not less than 5 yrs - the Maximum may be anywhere from 6 - 15 yrs. but not more than 15yrs.  As applied in the Revised Penal Code

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- the Maximum term should be imposed under the rules of the RPC; penalty prescribed by law after applying the legal effects of mitigating or aggravating circumstances; only the maximum is affected by the attending circumstances - the Minimum term should be within the range of the penalty next lower to that prescribed by the RPC; the penalty prescribed by law, lower it immediately by one degree, ignore all the mitigating or aggravating circumstances Example:  Supposing, accidentally you met your neighbor along the road, he challenged you to a fight and you accepted the challenge, there was a physical fight, then you inflicted a mortal wound that caused his death in the hospital, you were charged with homicide, because there were no qualifying circumstances, and since there was no mitigating and aggravating you should be sentenced to a medium period of reclusion temporal (for homicide) - To get Minimum term, immediately get the penalty next to Reclusion temporal, lower by 1 degree = Prision mayor – anywhere within Prision mayor, the court can decide what period, regardless of attending circumstances - The Maximum term, considering the absence of attending circumstances, is Reclusion Temporal medium period - The sentence now using the ISLAW is Prision mayor in any period as the Minimum term, up to Reclusion temporal medium period as the Maximum term  If the convict reaches the Minimum term, he shall eligible for parole; terms and conditions can be imposed by the BPP  Note from Prof. Amurao: It pays to be in good terms with the judge and his wife or his number 2 so you can get a low Minimum term if not the lowest  Surveillance Period during Parole (SP) 1. If there is no violation during the during the special period, the court will issue an order for final discharge 2. Legal effect of a violation of law or rules: - release may be revoked - prosecuted anew - prolonged change in the terms and conditions of the parole - made to serve out the remaining unexpired portion of the sentence  During parole, the convict is as free as any normal person except for the terms and condition that have to be observed  ISLAW is inapplicable with the following: 1. persons convicted of death or life imprisonment - in terms of death, this refers to the penalty actually imposed in the conviction by the courts, not the penalty prescribed by the law - in terms of life imprisonment, what if Reclusion perpetua is imposed, can the ISLAW still be applied? The SC says NO, it’s not applicable 2. those convicted of treason, proposal or conspiracy to commit treason 3. those convicted of misprision of treason, rebellion, sedition, espionage

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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4. convicted of piracy 5. habitual delinquents 6. those who escaped from confinement 7. those who violated the terms of conditional pardon by the President 8. maximum term of imprisonment less than a year 9. those convicted by destierro or suspension - destierro is a conviction imposed by courts  PROBATION LAW (PD 968)  Probation – a disposition under which a defendant after conviction and sentence, is released subject to the conditions imposed by the court and to the supervision of the probation officer  Objectives/Purpose 1. Promote correction and rehabilitation 2. Opportunity for reformation 3. Prevent commission of offenses

 Criteria for granting - character - environment

- institution/community

- antecedents - mental and physical condition  Criteria for denying; if the convict: 1. needs correctional treatment 2. has undue risk of committing another crime 3. probation will depreciate seriousness of offense

 Inapplicability of the Probation Law 1. a convict sentenced to more than 6 years 2. convicted of subversion other crimes of national security or public order 3. a recidivist 4. previously probationed 5. already serving sentence  There is first, a judgment of conviction imposed by the court

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 Duration - not exceeding 6 years and not disqualified - the accused may file an application for probation with the court - the court will order an investigation through the probation officer, all the aspects of the life of the convict - probation officer submits findings and recommendation - after submission, court may deny or approve recommendation and admit the accused to probation - Court may impose duration based on: - rehabilitation - reformation - reintegration  Duration of the Probation Period 1. sentence not more than 1 year = probation is less than 2 years 2. sentence more than 1 year = probation is less than 6 years 3. sentence is fine with subsidiary imprisonment = probation is twice the days of subsidiary imprisonment  After the Probation Period - the court can issue, upon recommendation by the probation officer, a certificate of final discharge; its effects are: 1. restored to one’s original position 2. liability for the fine is deemed extinguished  When to apply for probation - 15 days from promulgation, during the reglamentary period - the convict can either appeal or apply for probation  Supposing, convict filed a notice of appeal, later changed his mind, withdrew his appeal then filed an application for probation, can he do that? NO, once you file for an appeal, you waive your right to file for an application for probation, and vice-versa if you first file for an application then later on decide to withdraw it.  Supposing, a judgment of conviction was made, thus not entitled to probation, so accused filed an appeal in the CA where his sentence was lowered, qualifying him for probation, can he apply for probation now? CA says – YES, there can’t be any waiver of right because he was not entitled to file an application for probation = there’s nothing to

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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waive SC says – NO, because he already appealed, though with strong dissenting opinions about it (The SC is supreme, but it is not always right)  Beyond the 15-day reglamentary period, you can’t file an application for probation, except in RA 9344, a child in conflict with the law can file an application for probation anytime  ARTICLES 78-80 (reading matters) - Article 79 – Suspension of Execution - Article 80 (repealed by RA 9344) – involves the diversion and intervention programs for children in conflict with the law  ARTICLES 81-85 – PROCEDURE AND GUIDELINES FOR THE EXECUTION OF DEATH PENALTY (reading matter)  ARTICLE 86 – ADMINISTRATIVE MATTER ON PENITENTIARIES (reading matter)  ARTICLE 87 – DESTIERRO - prohibition in a certain place or places designated in the conviction - not permitted to enter the place or places nor within the radius specified not more than 250, but not less than 25 kilometers from the place  ARTICLE 88 – ARRESTO MENOR - shall be served in municipal jails - or for health reasons, can be allowed to stay home (house arrest)  ARTICLE 89 – TOTAL EXTINCTION OF CRIMINAL LIABILITY 1. Death of a convict = extinguishes personal penalties but not pecuniary if death comes before final judgment, even pecuniary liabilities are extinguished 2. Service of sentence - crime is a debt incurred by the offender as a consequence; after service of the sentence, the debt is paid 3. Amnesty - extinguishes the penalty and its effects; as if the crime was not committed 4. Absolute Pardon

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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- an act of grace by the Chief Executive; exempts the person from punishment only 5. Prescription of crime - forfeiture or loss of the right of the State to prosecute 6. Prescription of penalty - loss or forfeiture of right of the government to execute the final sentence 7. Marriage of offended woman (Article 344) - private crimes (abduction, seduction, lascivious acts adultery, concubinage) cannot be prosecuted de officio - public crimes (rape) can be prosecuted de officio (meaning initiated in Court by filing a complaint  Marriage can extinguish either crimes  ARTICLE 90 AND 91 – PRESCRIPTION OF CRIMES AND COMPUTATION 1. Death, Reclusion perpetua, Reclusion temporal = 20 years 2. Crimes punishable by other afflictive penalties = 15 years 3. Crimes punishable by correctional penalties = 10 years 4. Arresto mayor = 5 years 5. Crimes of libel, or other similar offenses = 1 year 6. Oral defamation/ Slander by deed = 6 months 7. Light felonies = 2 months  The prescriptive period shall commence to run from the discovery of the crime and shall be interrupted only by filing a complaint or information in court  Commences to run again when such proceedings terminate without the accused being convicted or acquitted  The prescriptive period shall not run when the offender is absent from the Philippines  Supposing, in 1980 the accused commits a crime, then goes into hiding, he resurfaces 20 years later, then the government finds a witness, can they institute a case? NO, but if the accused left for the US, YES he can be prosecuted still  The mere filing of a complaint with the following does not interrupt the prescriptive period: - Chief of Police - Office of the NBI - Office of the Provincial Director of the PNP

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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because these do not constitute the court; they are not part of the judiciary, not part of the courts of justice  But filing with: Office of the Public Prosecutor or Office of the Ombudsman, may interrupt the prescriptive period  ARTICLE 92 AND 93 – PRESCRIPTION OF PENALTIES AND COMPUTATION 1. Death, Reclusion perpetua = 20 years 2. Crimes punishable by other afflictive penalties = 15 years 3. Crimes punishable by correctional penalties = 10 years 4. Arresto mayor = 5 years 5. Light felonies = 1 year  The prescriptive period shall commence upon evasion of the service of sentence of the convict and shall be interrupted by the following: 1. if offender gives himself up 2. if he is captured 3. goes to a foreign country with which we have no extradition treaty 4. commits another crime before expiration of the period of prescription

 Difference between Prescription of crimes & Prescription of penalties PRESCRIPTION OF CRIME PRESCRIPTION OF PENALTY - loss or forfeiture of the State to prosecute

- loss or forfeiture of the State to enforce judgment after a lapse of time

- period: includes libel, oral

- light felonies for 1 year

defamation; difference in time for light felonies - starts counting upon discovery of the - starts counting upon the escape or

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

CRIMINAL LAW Lecture & Recitation Notes commission of the crime - mere absence from the Philippines interrupts

Page 136 of 139 Atty. Maximo Amurao evasion of service of the sentence - absence from the Philippines interrupted only when he goes to a foreign country without an extradition treaty with us

- commission of another crime before

- commission of another crime

the expiration of the period does not

before expiration of the period

interrupt

interrupts the prescription

 ARTICLE 94 – PARTIAL EXTINCTION OF CRIMINAL LIABILITY 1. Conditional pardon - must be delivered and accepted; contract bet. President and the convict 2. By commutation of the sentence 3. For good conduct allowances which culprit may earn 4. Full credit of service of preventive imprisonment 5. Release on Parole 6. Release under Probation

 ARTICLE 95 – OBLIGATIONS OF THOSE GRANTED CONDITIONAL PARDON (reading matter)  ARTICLE 96 – EFFECT OF COMMUTATION OF SENTENCE (reading matter)

 ARTICLE 97 – ALLOWANCES FOR GOOD CONDUCT 1. first 2 years = deduction of 5 days for each month of good behavior 2. 3 - 5 years = deduction of 8 days for each month of good behavior

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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3. 6-10 years = deduction of 10 days for each month of good behavior 4. 11 & so on years = deduction of 15 days for each month of good behavior

 ARTICLE 98 – SPECIAL TIME ALLOWANCES - it is a deduction of 1/5 of the period of the entire sentence: having evaded service during calamity or catastrophe (Art.158) gives himself up to the authorities within 48 hours; otherwise, if captured 1/5 of the remaining sentence will added  Supposing, there is a calamity, but you did not escape, will you be awarded the 1/5 deduction? NO, the law says you have to first escape  ARTICLE 99 – WHO GRANTS TIME ALLOWANCES (reading matter) - The Director of Prisons

 Article 100 – Civil Liability  In every felony, arises two things: (i) criminal liability, which can be extinguished by: - imprisonment

- fine

- prescription of liberty  Interested parties are: the government/State/President against the accused who is the only one liable because penalties are personal

(ii) civil liability, which can be extinguished by: - restitution

- indemnification

- reparation  Interested parties are: the offended party and heirs against the accused and heirs  Civil liability can be extinguished similar to that of contracts

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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   

Upon filing of the criminal action, civil action is deemed instituted If the criminal case was filed first, it shall take precedence If the civil case was filed first, it will be suspended when the criminal case is filed Reservation of right – loses right to intervene in criminal case, but allows for the institution of an independent civil action (ICA)  Independent Civil Action (for cases of or claims for damages, defamation, physical injuries) may proceed simultaneously with the criminal case, but if there is prejudicial question, it shall be decided first  Prejudicial Question – is one which arises in a case, the resolution of which is a logical antecedent of the issue involved in the said case, and the cognizance of which pertains to another tribunal  Extinction of criminal liability (acquittal) shall not carry the civil action with it unless it is the basis for the decision  ARTICLE 101 – RULES ON CIVIL LIABILITY - Article 12 pars. 1, 2, 3,5,6 and Article 11(4) are not exempt from civil liability  First rule: - Article 12 (1, 2, 3) = civil liability devolves to those who have parental or legal authority of them  Second rule: - Article 11(4) = those who benefited from the harm prevented are civilly liable  Third rule: - Article 12 (5 & 6) = the persons causing the fear or using violence are primarily liable; in their absence, those who acted are secondarily liable

 ARTICLES 102-103 – SUBSIDIARY LIABILITY OF OTHER PERSONS (reading matter)  ARTICLES 104-109 &111 – FORMS OF CIVIL LIABILITY & OBLIGATIONS (reading matter)

 ARTICLE 110 – SEVERAL LIABILITIES OF PARTICIPANTS IN A CRIME  The principals, accomplices, accessories shall have several liability; thus, the offended party can ask payment from any of them  In case of insolvency of the principal, the accomplice is next in line, and so on, if the latter is also insolvent  3rd person gratuitous – requires participation knowledge; requires knowledge on his part of the commission of the crime

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab

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 ARTICLE 112 & 113 – EXTINGUISHMENT OF CIVIL LIABILITY - same as extinguishment of contracts 1. by payment or performance 2. by the loss of the thing due 3. by condonation or remission of the debt 4. by the confusion or merger of the rights of the creditor and debtor 5. by compensation 6. by novation

NOTES BY: Josh Villena (2007)| Tin Dabu (2010) | Xina Acosta (2010) | year 2011: Em Quinto * Hanz Santos * Janna Tecson*Bevs Quintos*Norly Villanueva*Ayla Salendab