CRIMINAL LAW REVIEWER ATENEO 2011.pdf
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Criminal Law Reviewer Ateneo...
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Criminal Law Bar 2011 Notes Roland Glenn T. Tuazon
FUNDAMENTAL PRINCIPLES AND FELONIES
Ateneo de Manila University
Preliminary
TABLE OF CONTENTS: 1. FUNDAMENTAL PRINCIPLES AND FELONIES 2. CIRCUMSTANCES AFFECTING LIABILITY 3. PERSONS CRIMINALLY LIABLE 4. PENALTIES 5. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY 6. AGAINST NATIONAL SECURITY 7. AGAINST FUNDAMENTAL LAWS OF THE STATE 8. AGAINST PUBLIC ORDER 9. AGAINST PUBLIC INTEREST 10. RELATIVE TO OPIUM AND OTHER DRUGS 11. AGAINST PUBLIC MORALS 12. COMMITTED BY PUBLIC OFFICERS 13. AGAINST PERSONS 14. AGAINST PERSONAL LIBERTY AND SECURITY 15. AGAINST PROPERTY 16. AGAINST CHASTITY 17. AGAINST CIVIL STATUS 18. AGAINST HONOR 19. CRIMINAL NEGLIGENCE
ANNEX I: CIVIL INDEMNITY RATES
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What is the nature of felonies? o All felonies in RPC are public wrongs, as distinguished from private wrongs, the latter of which is just a breach of duty or contract of two private parties. o Although the State has power to prosecute persons for private crimes, the law gives the victim the privilege of not instituting actions for private crimes: adultery, seduction, abduction, etc. There must be a complaint initiated by the offended party. Ratio: to protect the latter from shame and humiliation. Rape is no longer a private crime. (Art. 344 of RPC) – it is now a crime against persons. Under RA 8353, the marriage of the offender and the offended party will extinguish criminal liability of the accused. Can there be common law crimes in the Philippines? o No. There are no common law crimes in the Philippines. Nullum crime nulla poena sine lege. What are the sources of criminal law?
o RPC, SPL, municipal ordinances. What about administrative regulations? May these partake of nature of criminal law? o YES. o Requisites: 1) Violation of admin regulation must be made a crime by the delegating statute 2) Penalty for violation must be provided by the statute itself. Are judicial decisions by the SC penal laws? o No. o Article 8 of NCC: judicial decisions interpreting the Constitution form part of the legal system of the Philippines. But decisions of the SC interpreting criminal statutes are not penal laws per se – they are merely interpretative. What are examples of laws in Philippine criminal law that follow the positivist theory? o 1. ISL The ISL was approved to uplift and improve human life. Not focused on the person as a criminal, but the law takes into account economic usefulness of offender and excessiveness of deprivation of liberty. o 2. Habitual delinquency law o The State is concerned not just with protective social order against criminal acts, but also
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redeeming the individual for social ends. Not just retribution, but reformation. What is the principle of generality? o Art 14 of the NCC: Penal laws apply to all those who live or sojourn in the Philippines, subject to international law or treaty stipulations. o How does international law become domestic law, under the 1987 Constitution? Transformation – requires that the I-law be transformed into domestic law; ex. local legislation Incorporation – international law is part of the law of the land. Immunities from criminal prosecution by certain individuals: o 1. Covered by the VCDR or exempted by treaties/laws or preferential application Principle is par in parem non habet imperium – suing them is tantamount to suing the State they represent Who are the diplomats covered? Classified into four: A) ambassadors, ambassadors extraordinary B) ministers and papal internuncios C) ministers-residents D) charges-de-affaires
This principle is inviolable; they are not subject to local penal laws. They are immune from arrest and prosecution for violation for local laws. But one may be temporarily restrained if he commits acts that threaten public order. The State may simply request for recall of the diplomat – he will still not be prosecuted locally. X is a citizen of Iran, but is also an honorary consul. He was caught in possession of drugs. Is he exempt from prosecution? No. A consul is not exempt from criminal prosecution for violation of the penal laws of a country where he is assigned to. He is not entitled to any immunity or diplomatic privileges under the VCDR. The nature of the job of consuls, vice-consuls, or consulsgeneral is commercial in nature. Exception: when there is an agreement between the Philippines and the sending country. But the exemption is not based on the nature of his position.
Except: immunity does not cover suits in personal and private capacity as an ordinary citizen Liang: The RP and ADB entered into an agreement under which officers and staff members enjoy immunity from legal processes and prosecution, with respect to acts performed in their official capacity, except when the bank waives the immunity. In this case, the ADB officer committed grave oral defamation, which is ultra vires. He is not immune. This is not covered by immunity because he was not performing his duty. o 2. RA 7055 – Members of the AFP and officers charged with service-connected offenses Who are officers and members of the AFP? Article 1: members of AFP, those subject to military law, members of the Citizens Armed Forces Geographical Units (CAFGU) What is the general rule? Civilian courts have jurisdiction over crimes committed by members of the AFP. 3
EXCEPTION: service-connected offenses (provided in RA 7055) fall under courts-martial Civilian court determines before arraignment whether the crime is service-connected Is it possible for a serviceconnected crime to be tried by civilian courts? YES. The President, before arraignment, in the interest of justice, may refer the crime to a civilian court as long as it is covered by the RPC or any other SPL. What about Members of the PNP? They are covered by RA 6975. Civilian courts have jurisdiction over them because the PNP is civilian in character. o 3. Immunity under law/transactional immunity Transactional immunity is statutory immunity from criminal prosecution as granted by law Omnibus Election Code – one who reports to the COMELEC any incident of vote buying or vote selling, and he testifies for prosecution: he is entitled to
immunity, even if he took part in such crime. Sec 261 of OEC. P.D. 749 – immunity granted to those furnishing information re: violation of bribery, indirect bribery, corruption of public officers
Art. 2: territoriality principle
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What is covered by the territory of the Philippines? o Phil. archipelago, atmosphere, interior waters, maritime zone UNCLOS – o Territorial sea is up until 12 nautical miles o Contiguous zone: up until 24 nautical miles States may exercise control even within this area to prevent and punish infringement of customs, immigration, fiscal, sanitary laws within territory or territorial seas What are the exceptions to the territoriality rule of criminal law? o 1. Commission of an offense in a Philippine ship or airship But technically this is not an exception, because Philippine ships or airships are part of Philippine territory Nationality of the ship depends on its registration
o 2. Forging or counterfeiting Philippine coins or notes or government securities o 3. Introduction into the Philippines of the forged/counterfeited notes, coins, or government securities Rationale for #2 and #3: to protect economic security of the Philippines o 4. Public officers and employees who commit an offense in the exercise of their duties o 5. Commission of any of the crimes against national security and the law of nations i.e. treason, espionage, provoking or disloyalty during war, piracy, mutiny Purpose of penal laws involving national security is to protect the domestic order and crimes against national and economic security of the Philippines. The law is designed to protect not only the national and economic security of the country, and should reach beyond the boundaries of the Philippines, wherever they may be found. Differentiate the English from the French rule: o English (territorial) – the territorial State has jurisdiction, except when it merely concerns internal management of the vessel. o French (flag) – the flag of registration has offense, as long as it does not disturb the peace.
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There was an English vessel in Phil. territory, not in transit. Accused was smoking opium on the ship. o HELD: Convicted. The SC followed the English rule, because he was smoking within Phil. territory. This had pernicious effect on Phil. territory (“disturbs the peace”) so it was not a matter of mere internal management of the vessel. A person in a Philippine ship in Vietnamese waters got drunk and shot three people. He was not prosecuted in Vietnam. Can the Philippines prosecute him? o Yes, the Philippines may exercise jurisdiction. Although following the English rule, which we adhere to, it must be Vietnam that exercises jurisdiction, since Vietnam did not exercise jurisdiction, there is nothing preventing the Philippines from deviating from English rule. o Rule: the territorial State has priority. If it fails to do so, the Philippines may act under Art. 2. In the D.D.A., mere attempt to transport marijuana is a crime. Can Philippine officials board the vessel to prosecute those on board? o General rule: the ship cannot be boarded. But the UNCLOS said that the criminal law of a State may not be enforced on board the vessel to prosecute individuals, except if measures are necessary to suppress illegal traffic of
narcotic drugs in a commercial vessel that passes by the territorial sea. What is the nature of the high seas? o Free for all. o Is it possible that a crime was committed beyond the territorial sea, but yet, when the vessel enters Phil. territorial sea, can it be prosecuted? Yes, if it is a continuing crime. o Can Philippines legislate on crimes applying to the high seas? Yes, for instance, P.D. 532 – Piracy. o Pirates wanted to unload the oil from a vessel. They boarded the ship within Phil. Waters, which went to Singapore, and unloaded the oil to another vessel in the high seas. Can they be prosecuted here? Yes, they can be prosecuted for piracy even if the crime was committed in Singapore, because the crime began in the Philippines. It continued to Singapore.
Art. 3: felonies
What are the two components of felonies by dolo? o 1. Act and omission punishable by law (physical act) o 2. Mens rea (intent)
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For felonies by dolo, one is not criminally liable if there is no criminal intent. What about culpa? o Not intent, but negligence, imprudence, lack of foresight, or lack of skill May someone be held criminally liable for crimes of omission? o YES. The following must concur: 1. There is a positive duty provided by law 2. Accused acted voluntarily to not do a positive duty 3. Criminal intent in refusing to do it o Examples: misprision of treason, prevaricacion (Art. 208 of RPC), fraud on treasury What is mistake of fact and its implications? o Recall: People v. Achong. o If there is mistake of fact, then there is no criminal intent. One is not culpable for dolo. o The one invoking it must act with good faith. o If he acts with negligence, such as when he is negligent in ascertaining the true state of facts, he may be liable for felony by culpa. o Not a valid defense for felony by culpa or by SPL. What is abberatio ictus and what are its implications?
o This is mistake in the victim of the blow. There is still criminal liability, which is generally increased (because it either becomes a complex crime or two separate crimes – against the intended and the real victim). o Can treachery apply to abberatio ictus? Yes, because if the accused fired at his intended target but missed, the victims are helpless to defend themselves. What is error in personae and its implications? o This is mistake in the identity. It may or may not lower criminal liability depending on the crime committed and if the intended crime is of equal or different gravity. o Ex. X intended to kill Y, but instead killed his father, Z by mistake. Instead of homicide, it became parricide. In this case, Art. 49 will govern: error in personae becomes mitigating (apply maximum period of homicide as penalty). What is praeter intentionem and its implications? o The accused did not intend to commit so grave a wrong as that committed. This is a mitigating circumstance under Art. 13. o But if the means used to commit the desired crime would also logically and naturally bring about the actual felony, praeter intentionem does not apply.
Circumstance
Common implication
Mistake of fact
Not culpable
Abberatio ictus
Complex crime
Error in personae
No change; or maximum period of the lesser offense
Praeter intentionem
Mitigating
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or
usual
What is the rule on specific intent felonies? o In specific intent felonies, the prosecution must prove beyond reasonable doubt the specific intent. But sometimes, specific intent may be presumed. Ex. intent to kill must be proved. One can presume this, for instance, from the mere fact that the victim died from a deliberate act. But for attempted or frustrated homicide, intent to kill is not presumed and must be proved. Ex. intent to gain in theft. One is found in possession of recently stolen property – there is a presumption. o Criminal intent can be presumed from the commission of a delictual act. Must motive be proved for dolo? o Not in general. Motive is not an essential element of crime. But there are instances
o Does mistake in the identity of the victim constitute reckless imprudence? No. Mistake in identity is not culpa. Ex. Policemen were trying to arrest an escapee, and they saw a man sleeping. They thought the man was the escapee. HELD: The felony was dolo, not culpa, because the killing was deliberate. o May there be a crime of frustrated homicide through reckless imprudence? No. Frustrated homicide requires intent to kill. This is incompatible with recklessness, negligence, or imprudence. o Can there be conspiracy resulting from negligence? There can be no conspiracy resulting from negligence, because conspiracy is the product of deliberate agreement evincing intent. o If the information charges an intentional felony but what is proved is culpable felony, can the accused be convicted? Yes, because the greater includes the lesser offense o Can more than one person be liable for killing the same person, one by dolo and one by culpa? Yes.
where motive is a prerequisite to conviction of accused. Political crimes –If the crime committed, for instance murder, is in pursuance of political motive in rebellion or coup d’etat, it is absorbed by the crime. Death by exceptional circumstances – killed wife and paramour who were having sexual intercourse. Not criminally liable for homicide, if motive is to avenge dishonor. But if he killed the wife for some other motive, and not due to exceptional circumstances, then he is criminally liable. o Motive, however, is useful when there is doubt whether the accused committed the crime or as regards the identity of the accused When is criminal intent not needed to commit a crime? o 1. Culpa o 2. Crimes malum prohibitum Is reckless imprudence under 365 a felony under Art. 3? o Yes. It is a quasi-offense. o Note the difference: Under Art. 3, culpa is mode of committing a crime, while in Art. 365, culpa itself is the crime punished, thus it is a felony. 8
3 people went to carnival. X was mentally challenged. Y poured gasoline on X. Z lit a match and burned X. HELD: Y who poured gasoline was liable for reckless imprudence resulting in homicide. He should have anticipated that after pouring gasoline, someone could light a match – lack of foresight. Z is liable for felony by dolo – deliberate act. (P v. Pugay) Are crimes punishable by SPLs automatically crimes malum prohibitum? o Not all. Some can be malum in se. o A. Plunder is malum in se, for three reasons: 1. Although defined by SPL, it is malum in se because the crimes constitutive of plunder are mala in se. Under the law, mitigating and extenuating circumstances are applicable to plunder. 2. The predicate crimes are punishable by RP to death. 3. Plunder is inherently immoral and wrong. o B. Sec. 27B of the Omnibus election code: a member of the BEI who tampers with election results. The crime is malum in se, although the crime is defined by SPL. It is inherently
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immoral and wrong to tamper with election results. Give examples of SPLs that are malum prohibitum: o A. Possession of unlicensed firearm. But mere transient possession in RA 8294 is not a crime: there must be intent to possess, not mere possession. Can the use of unlicensed firearm be an aggravating circumstance? Yes. RA 8294 provides that it is an aggravating circumstance. o B. Violation of Trust Receipts law o C. Anti-fencing Law No need to prove intent to gain Can one be liable for both a felony and a SPL for one delict? o Yes. o Ex. One issued a check for a transaction which bounced. Liable for BP 22 AND liable for estafa. o Ex. One pretended to be a licensed recruiter. Liable for both illegal recruitment and estafa. Can one be liable for crime defined by SPL, commit another felony and then become liable for a special complex crime? o Yes. The anti-carnapping law (RA 6539). If the offender kills the driver or occupant to take
Art. 4: felonies and impossible crimes Par.1 – natural and logical consequence of felonies
“The cause, which in its natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not occurred” And that cause may cause another thing to occur, which produces the injury o Which circumstances do not affect the existence of proximate cause? 1. Pre-existing condition of the victim (pathological) 2. Negligence of doctor 3. Refusal to get medical help or delay in getting it o When is something not the proximate cause of the effect? 1. There is an active force that intervened between the felony committed and the death of the victim, 2. The resulting injury or damage is the intentional act of the victim. Examples where even if the resulting wrongful act was different from the offender’s intention, he is liable for that resulting act o Inserted vibrator in anal orifice of victim. It was rusty so the victim died (Complex crime of sexual assault with homicide under RA 8353) o Accused robbed a store and to shut up the woman inside, he jammed a pan de sal in her
the car, he is guilty of special complex crime of carnapping with murder. May a felony by dolo or culpa absorb a crime which is malum prohibitum? o No, a felony by dolo or culpa cannot absorb a malum prohibitum crime. Two persons went to the public forest and cut timber, which is a violation of the Forestry Code. They were convicted, on basis of conspiracy. The court ruled that they were guilty to conspire to violate the Forestry Code. Is the SC decision correct? Can there be conspiracy to commit malum prohibitum? o No. The SC is wrong. Under Art. 8, they must agree to commit a crime (felony). Thus, this does not apply to malum prohibitum. (Tigoy v. P)
What is the rule on liability for those who have committed a felony? o That person is liable for natural (ordinary course of things) and logical (reasonable connection) consequences of his criminal act o The act must be the proximate cause of the effect. o What is proximate cause?
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mouth. She died by asphyxiation. Convicted of robbery with homicide. o The kidnap victim died from a heart attack due to fear. The accused is liable for kidnapping with homicide. o Accused robbed victim of belongings, the victim ran away and jumped in the river. She drowned. Accused is liable since he created a sense of fear in the mind of the victim. o Even if the doctor is negligent, but the accused inflicted mortal wounds on the victim, the negligence of the doctor is NOT an active intervening force that exculpates the accused. But there are times the doctors’ acts are exculpatory. Ex. Victim was brought to the hospital, but the doctor was so intoxicated, he gave the victim poison instead of medicine. The doctor was liable. Is it possible that two persons are liable for the death of the same person even if there is no conspiracy? o Yes. Two persons went to a bar, did not know each other, and sat on different tables. They saw an annoying person. One person stabbed him. The other, not knowing that the first one stabbed him too, stabbed him again. Both wounds were mortal. o Both are liable for homicide.
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An accused committed reckless imprudence, and due to this, two people died. Can he be prosecuted for reckless imprudence resulting to double homicide? May reckless imprudence result into a complex crime? o YES, because reckless imprudence is a felony under Art. 3 and Art. 48 talks about felonies as component crimes. What is the relevant presumption under Rule 131, Sec 5(c) of the Rules of Evidence? o A person is presumed to contemplate the ordinary consequences of his acts, and expect those. But intent is an internal act. How do you determine this? o Through circumstances of the case. Does Art. 4, par. 1 regarding liability for natural and logical consequences apply to culpable felonies? o No. o Par. (1) is specific: it refers only to delitos. o NOTE: Boado has a different opinion, noting that “delitos” means felony in general, which can include culpable felonies. The classic example she gives is person X jumping off a building to commit suicide, but does not die because he lands on Y, who dies. X is liable for the death of Y even if committing suicide is not a crime per se.
What will apply to culpable felonies? o Article 365 of the RPC applies. o The offender is liable for whatever damage or injury caused by him.
Offender accepted goods which he believed to have been stolen, but which were not, in fact stolen Offender offers a bribe to someone he believes is a public officer, but is in fact not Offender believed his gun was loaded, pointed it as his wife, and pulled the trigger. But it was empty. Intod v. CA – fired guns into empty bedroom, because the intended victim was out of town Jacinto v. P – Sales agent, instead of turning over the check to employer, gave it to a relative. The check bounced. HELD: impossible crime, because at the time the petitioner stole the check, there were no funds in the bank. (Problem with this case: What about postdated checks? Does not the check (paper) itself have some value?) o Legal impossibility There is intent and performance of a crime, but the consequence could not result into a crime.
Par. 2 – impossible crimes
What are the elements of an impossible crime? o 1. The offender performed an act which would be an offense against persons or property o 2. He performed the act with criminal intent o 3. Accomplishment of the act is inherently impossible or the means employed were inadequate or ineffectual Differentiate “factual or physical impossibility” from “legal impossibility”: o Factual or physical impossibility There is intent and performance but no accomplishment due to extraneous circumstances that makes accomplishment impossible. The factual condition must be unknown to the offender. What if the person knew the factual condition? There is no crime and there is no impossible crime. Examples:
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Even when completed, it would not amount to a crime. Ex. Stole a watch that turned out to be his. Ex. Offender saw a naked woman lying on the beach. He inserted his penis into his vagina. It turned out she was dead. Impossible crime, because you cannot rape a dead person. Is an impossible crime a crime? o No. But it is still punished because the law intends to punish criminal inclinations/tendencies. What is the penalty for impossible crimes? o Under Art. 59 of the RPC, the imposable penalty for impossible crime is arresto mayor (correctional penalty). o What is the potentially inequitable situation arising from this penalty? Supposing I saw a person on a bed, and I punched him. He sustained slight PI. But he turned out to be dead, so it was an impossible crime. Under Art. 266(3) of the RPC the penalty is arresto menor for slight PI. But for an impossible crime, the penalty is arresto mayor. So if that person were alive, the penalty would be less than if he were dead!
Art. 5: Duty of courts to report
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When does the court’s duty to report to the President, through the DOJ, apply? o 1. Acts which are not punishable by law, but should be o 2. Clearly excessive punishment o N.B. in these cases, the court must still render the proper decision notwithstanding the report. Remedy is executive clemency, in case of excessive penalties. The court can simply recommend, but not impose clemency, because it’s still the Executive’s prerogative. Article 5 does not apply to crimes defined by SPL, because of the use of the words “degree of malice,” etc. This brings to mind B.P. 22, in relation to A.C. 122000, as clarified by A.C. 13-2001: o S.C. noticed that people are using the courts as collection agencies and are clogging up dockets o So S.C. issued a circular dissuading people from filing B.P. 22, and for judges to just impose fines A.O. 08-2008, issued 25 Jan. 2008 o Libel – imposable penalty is imprisonment or fine o According to the S.C., preference is fine over imprisonment
yet. At most, it’s attempted trespass. It can be the first of a series of acts that would produce the intended crime, as long as the intended crime is established or known Differs from preparatory acts, which are just means or measures necessary to produce the desired end. Ex. surveillance Ex. buying poison Ex. conspiracy and proposal, unless the law punishes the conspiracy/proposal per se o 2. But offender did not complete all acts of execution to produce the felony Still at the “subjective phase” of the commission of crime – still has full control of acts, and has not completed the needed acts yet o 3. Due to cause or accident other than spontaneous desistance Is he is still in the subjective phase and he desists from committing the crime, is he liable? NO. He is not liable. The reason for desisting need not be legal or moral. It could be
Art. 6: Stages of consummation
When is a crime consummated? o When all the acts necessary for its accomplishment and execution are present. o The accused has reached the objective stage of the offense as he no longer has control of his acts, having performed all that is necessary to accomplish the purpose. In general, all the felonies in Book II are consummated crimes. What is the exception? o Attempted or frustrated robbery with homicide Why do we punish attempted stages? o Attempts are punished because there is just as much need to reform a person who has unsuccessfully attempted to commit a crime What are the elements of an attempted crime? o 1. Commenced execution “directly, by overt acts” There must be an overt, external act and there is crime intended to be committed There is direct connection to crime intended to be committed – must have an immediate and necessary connection. Ex. Merely opening a hole in the wall of a bank is not yet attempted robbery because there is no overt act evincing robbery 14
remorse or fear – as long as he desists voluntarily. But if he desists during the objective stage, there is no exculpation But may he be liable for any other felony already committed apart from that desisted from? Yes. What are the elements of a frustrated crime? o 1. All the acts of execution needed to produce the felony are present So in the same way, the objective stage has been reached o 2. But it was not produced by reason of causes independent of the perpetrator’s will When does frustrated homicide/murder exist? o It is not enough to wound the other person. The wound inflicted must be mortal. If it is not mortal, then it is a mere attempt. o Even if the accused believed that he inflicted a mortal wound, but he did not, it is merely attempted, not frustrated. The nature of the wound controls, not the belief of the person. What are crimes where no frustrated stages exist? o 1. Rape As long as the penis enters the labia majora, it is already consummated
o o
o
o
o o
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It is not the mere entry; the SC said that the entry must be in relation with the intent to have carnal knowledge of the woman If it is just in the mons pubis –just attempted. (“Bombardment of the drawbridge, even if the troops do not successfully enter the castle.” If no intent, just acts of lasciviousness.) 2. Sexual assault By analogy 3. Robbery One is liable for consummated robbery if one takes possession of the personal property of the other, however brief it may be. 4. Theft No more frustrated theft, under same ratio: no need to have disposed of stolen property 5. Adultery Essence of the crime is sexual congress: so same principle as in rape applies 6. Felonies by omission No attempted or frustrated stage 7. Falsification of public document
There is no attempted or frustrated falsification of public document unless the falsification is so imperfect. o 8. Arson The moment burning occurs, even for a small portion only, the offense is consummated All overt acts prior to burning: attempted stage o 9. Corruption of public officials When the offer is accepted by the public officer, then the offense is consummated When the offer is rejected, then it is just an attempt What are formal crimes? o Those that are always consummated because the offender cannot perform all the acts necessary to consummate the offense without consummating it. o Examples of formal crimes? 1. Physical injuries Since their punishment is based on result and gravity of injury 2. Slander The moment the words are uttered and heard by third persons, the crime is consummated.
Is there attempted or frustrated culpa? o No. What if what was charged was the frustrated stage and only the attempted crime was proved. Can an accused be convicted? o Yes, the frustrated stage necessarily includes the attempted stage. Same with consummated crimes and attempted/frustrated stages.
Art. 7: light felonies
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What are light felonies? o Those infractions of law where the penalty is arresto menor or fine not exceeding 200 pesos When are light felonies punishable? o Only when they have been consummated o Except those against persons or property Who are punishable for light felonies? o Only principals and accomplices. o Accessories are not liable because light felonies are punishable with arresto menor and accessories are penalized two degrees lower than the principal, which is non-existent in this case. How do you categorize reckless imprudence resulting into slight PI? o The crime of reckless imprudence is a light felony, under the last paragraph of Art. 9 of the RPC. Punishable only by public censure.
Art. 8: conspiracy and proposal
When is there conspiracy? o When two or more persons come to an agreement concerning the commission of a felony and they decide to commit it. What is proposal? o A person who has decided to commit a felony proposes its execution to some other person or persons. Is conspiracy or proposal a felony? o No. Conspiracy under article 8 is not a felony, because there is no penalty provided by law. o Article 8 is thus a mode of incurring criminal liability. o Enumerate at least two felonies punished pursuant to Article 8 as a felony per se: Conspiracy to commit treason Conspiracy to commit rebellion o For the above acts, the mere conspiracy is punishable. But the moment they actually commit treason or rebellion, conspiracy loses its juridical personality and it becomes a mere mode to commit a crime. What is required to prove a conspiracy? o Same degree of proof to establish the crime, in order to prevent finding someone guilty of a crime except proof beyond reasonable doubt.
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o But it can be proved by indirect proof, such as inferences from acts of the accused before, during, and after the commission of the crime. o These acts must indubitably point to or indicate a joint purpose, concerted action, and singular interest. What is required to be done in order to become a co-conspirator? o Intentional participation in the transaction with a view to furthering the common design. o Except when one is a mastermind, he must perform some overt art as a direct/indirect contribution to the crime’s execution. The overt act can be active participation, moral assistance by being present at the scene of the crime, or exerting moral ascendancy. o But merely being present is not sufficient to prove conspiracy; it must be shown that there is intent to provide moral support, etc. What are the two types of conspiracy? o 1. Express conspiracy There is prior agreement A conspirator is liable as long as he appeared in the scene of the crime. Except when he is the mastermind, where it doesn’t matter whether he appears or not, since he is a principal by inducement
Degree of actual participation is immaterial: all conspirators adopt the acts of the others o 2. Implied conspiracy Deduced from the acts of the offenders. The agreement to pursue a common design and the unity of purpose is instantaneous. It is essential that the conspirator participated in the commission of the crime. Mere presence is not enough because mere presence does not prove intent to join the commission of the crime, without prior agreement. Three kinds of special conspiracy: o 1. Wheel conspiracy – there is one person (hub) and his underlings (stokes) We have this. The others, not yet recognized. o 2. Chain conspiracy – using legitimate enterprise to distribute narcotics Ex. drugs o 3. Enterprise conspiracy – Racketeer Influenced and Corrupt Organizations (RICO) What is the kind of conspiracy and connivance contemplated in Article 157 (Evasion of service of sentence)?
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o This is the situation where a convict or a person escapes in connivance with another person. o The conspiracy or connivance in connection with the crime committed here is an essential condition for the commission of said crime, in connection with Art. 223 of the RPC (Infidelity in the custody of prisoners). The penalty is prision correccional in maximum period instead of medium and maximum period. What are the characteristics of conspiracy? o 1. Singularity of intent o 2. Unity in the execution of the unlawful objective Does Art. 8 apply to SPLs? o Generally, no; it does not apply to crimes defined in SPL. However, if the SPL provides that conspiracy to commit a crime under that law is a crime in itself, then it is. Ex. DDA, Sec. 26: conspiracy to commit any of those crimes enumerated in that section is a crime by itself (“sale, importation, distribution and conspiracy to do such”) Ex. Access device regulation, Sec. 11: conspiracy to commit access devise fraud is a crime
Ex. Anti-terrorism law: conspiracy to commit terrorism is a crime punishable with 40 years of imprisonment o If there is no provision in the SPL, Art. 8 can be considered a mode to commit that crime. Two or more persons who conspire to commit a crime of BP 22 liable under Art. 8 of the RPC (Andan v. P) Recall the controversial Tigoy case re: conspiracy to violate the Forestry Code Does Article 4, par. 1 apply to Article 8? o Yes. Each conspirator is responsible for everything done by his confederates, which follow incidentally in the execution of the common design, as one of its probable and natural consequences even though not intended as part of the original design. o Conspirators are held to have intended the consequences of their act, by engaging in conspiracy. So, liability extends to collateral acts incident to and growing out of the conspiracy. o X and Y agreed to rob the victim only. But he resisted and X killed the victim. What crime did X and Y commit? HELD: All the conspirators, thus both X and Y, are guilty of robbery with homicide.
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o What if one of the co-conspirators (ex. robbers) prevented the others from committing the extra act of homicide or rape? HELD: He is only liable for robbery only, and not homicide and rape. It does not matter if he succeeds in preventing them of not. o X, Y, and Z committed robbery. After they all escaped, X a car and carnapped it after. HELD: Only he was liable for carnapping because it’s not intended as part of the plan and is not incidental to the common design. Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and substantively from that which they intended to commit. Until when does conspiracy last? o Conspiracy continues until the object is attained. Conspiracy is a continuing event, unless in the meantime, they abandon the conspiracy or the conspirators are arrested. X and Y agreed to commit robbery and decided to commit it. X stabbed the victim and ran. Y did not run and he was caught. Defense: he was not guilty of the crime, because he desisted when he did not run. Is the defense tenable?
o HELD: The mere failure or refusal to flee after the commission of the crime does not amount to a disavowal of the conspiracy. There must be an overt act to disassociate oneself from the conspiracy. Relate conspiracy with aggravating circumstances of evident premeditation and price: o Evident premeditation only applies for express conspiracies. It does not apply to implied conspiracies, because these are spontaneous. o Price applies to the co-conspirators acting as offeror and acceptor. Does the laxity of a public officer in investigating or prosecuting indicate that he is a coconspirator? o Not per se. It must be shown that he had foreknowledge and participation in the plan in the first place. What are the possible liabilities of a head of office when his subordinates are able to conspire to commit a crime? o 1. Conspiracy (if he is aware of the design and agreed to it) o 2. Culpa – in this case, he is not part of the conspiracy because there can be no conspiracy by culpa o What is the Arias doctrine? The head of office can rely to a reasonable extent on his subordinates
and their good faith. There has to be a special reason why he should examine acts or papers in detail. There is no negligence/culpa if he fails to examine an error because of the sheer amount of paperwork that passes through his hands. Art. 9: severity of felonies
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Classify felonies as to severity: o 1. Grave felonies Capital punishment Afflictive penalties in any of its periods (prision mayor to reclusion perpetua) o 2. Less grave felonies Correctional penalties in their maximum period (destierro, suspension, arresto mayor, prision correccional) o 3. Light felonies Arresto menor Fine not exceeding P200 N.B. but in Article 26, a fine of P200 is already a correctional penalty What is the relevance of knowing this classification? o 1. Complex crimes require grave or less grave felonies o 2. To determine the duration of the subsidiary penalty
o 3. To determine the duration of detention in case of failure to post the bond to keep the peace N.B. but there is no crime that requires a bond to keep the peace o 4. Different prescriptive periods o 5. To determine whether there is delay in the delivery of the detained persons to the judicial authority o 6. Penalty for quasi-offenses (Art. 365)
Art. 10
What is the relationship between RPC provisions and SPLs? o In general, RPC provisions do not apply. o But the RPC is supplementary to the SPL, unless provided otherwise. What if the penalty provided by an SPL follows RPC nomenclature? o The RPC applies suppletorily, ex. mitigating circumstances. R.A. 9165, amended by 9344; Dangerous Drugs Act – “provisions of RPC shall not apply to violations of DDA, except in the case of minor offenders” o Reclusion perpetua, not L.I. o Penalty may be reduced by 1 or 2 degrees under Art. 63 What does the Anti-hazing law provide as re: praeter intentionem?
o Sec. 4 provides that praeter intentionem does not apply as a mitigating circumstance for violation of Anti-Hazing law o The law also enumerates who will be deemed principals, etc. What does the anti-terrorism law provide as re: the relationship of its penal provisions and RPC provisions? o Conviction of a person under said law constitutes a bar to the prosecution of that person under the RPC or another SPL for the predicate crime What does R.A. 7610 – Child abuse law, Sec. 10 provide? o Where the victim of murder, homicide, intentional mutiliation, or SPI is under 12 years old, the penalty shall be reclusion perpetua VAWC: If the offender commits act of physical violence and there is intent to kill, what is the punishment? o Crime is NOT violation of physical violence provision under VAWC but attempted, frustrated, or consummated parricide, homicide, or intentional mutilation
CIRCUMSTANCES AFFECTING LIABILITY Art. 11: justifying circumstances
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Are complete self-defense and other provisions under Art. 11 (justifying circumstances) absolutory causes? o Yes, because the accused is not deemed to have committed a crime. An absolutory cause means that the accused does not incur criminal liability. Is Article 12 an absolutory cause as well? o No. There is technically a crime, although the person is exempt from liability. The basis here is that the person is not acting with complete intelligence. There is no mens rea. What are other absolutory causes? o 1. The offender was instigated Differentiate instigation from entrapment: In entrapment, the idea of the crime comes from the lawbreaker. Thus, this is not absolutory. The peace officer is without criminal liability. o Ex. buy-bust operations In instigation, the idea of the crime is induced in the mind of the lawbreaker. It is absolutory due to public policy. The peace officer is a principal by inducement.
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o 2. Spontaneous desistance in the attempted stage o 3. Attempted or frustrated light felonies, except against persons and property o 4. Accessories in light felonies o 5. Accessory relatives who help relatives escape (Art. 20) o 6. Art. 247 – death under exceptional circumstances o 7. Certain relatives in estafa, theft, malicious mischief o 8. Somnambulism o 9. Mistake of fact (Achong) o 10. Repeal of penal law, whether absolute or modification What is the nature of self-defense? o Self-defense is an act to save life; thus, it is an act, not a crime. o There is no such thing as accidental selfdefense because it contemplates intent by the defending party. What does self-defense include? o Defense of body and limb o Rights as person, including honor o Property and liberty If the accused in arraignment pleads self-defense, is he making a judicial confession? o It is NOT a judicial confession, but just a judicial admission. He does not admit penal
liability. He is merely admitted that he killed the victim. If the accused admitted killing the victim and pleads self-defense, is the burden of proof shifted to accused? o No. The burden of proof never shifts; only the burden of evidence shifts. (Although Boado seems to have mixed up these terms because she says that the burden of proof shifts.) What are the requisites of self-defense? o 1. Unlawful aggression o 2. Reasonable means necessary to repel it o 3. Lack of sufficient provocation by the defender What is ABSOLUTELY necessary out of these? o Unlawful aggression. Without it, even if the two others are present, there can be no complete or incomplete self-defense. If it is unlawful aggression alone, then it is an ordinary mitigating circumstance. If it is unlawful aggression plus one other, then it is a privileged mitigating circumstance. o What is the nature of needed unlawful aggression? It must continue up until the act of selfdefense, because once it ceases, the offender can no longer invoke selfdefense.
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If there is no more unlawful aggression, the “self-defense” is just mere retaliation and thus invalid. What if the other two are missing? o There is incomplete self-defense and thus it is just a mitigating circumstance, not justifying. How is unlawful aggression defined? o Actual peril to one’s life, or merely a threat, but real and imminent. Is slapping unlawful aggression? o Yes. It is unlawful aggression against his honor. The face of a person is akin to his dignity, honor, etc. What is the effect of presence of multiple wounds on the victim in a claim of self-defense? o The nature of wounds belies a claim of selfdefense because it shows a determined effort to kill the victim, and not mere self-defense. Compare P v. Jaurige and P v. De la Cruz as re: reasonable means: o BOTH cases involved defense of honor. o Jaurige: mere touching of thigh, in church, in daylight. She killed him with fan knife. No selfdefense appreciated. The means used were not reasonable. o De la Cruz: groped in dark alley. Killed with knife. Allowed to exercise self-defense. o THUS, whether means are necessary is caseto-case.
o What do you consider? 1. Whether the aggressor was armed 2. The nature and quality of weapon used 3. Physical conditions and sizes of the parties involved What is the “rational equivalence” rule in reasonable necessity? o The law does not demand material commensurability between the means of attack and defense. So this doctrine considers the nature of imminent danger, and instinctual actions. Note that a person in peril will not act as rationally as normally expected. What is the rule when a person is attacked? o Not anymore “retreat to the wall”; now, it is: “Stand your ground when in the right.” If two people agree to fight, is there valid claim of self-defense? o No, because there is an agreement. There is no unlawful aggression. o What is the exception? When they agreed to fight, but one attacked ahead of the agreed time. What is the extent of defense of property rights? o May use such force as reasonably necessary to prevent or repel the unlawful physical invasion of his property. This does not seem to involve the taking of human life.
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o Dissent of P v. Narvaez: in order to defend against the person, there must be aggression not just against property rights but also against the person of the owner. o Correlate this with Art. 429 of the Civil code, or the doctrine of self-help. When is there sufficient provocation? o Provocation is sufficient if it is sufficient to incite the person to attack. Is Art. 247 an absolutory cause? o Yes. Because the only imposed “penalty” is destierro. And that this is more of protection for the one who killed. o NOTE: differentiate Art. 247 from cases where Self-defense under Art. 11 applies, even if the situation is the same (catching spouse in sexual congress) Ex. Husband caught wife in sexual congress. The wife, caught, wanted to kill him, so he took the knife and killed his wife. The accused arrived and saw his wife in the act of sexual intercourse. The paramour ran and the wife dressed up. Gonzales went out. When he got back, he heard rustling leaves. He saw the paramour and the wife, who was putting on her panties. He stabbed his wife. Can the husband invoke 247? (P v. Gonzales)
o HELD: You cannot invoke 247 because at that time, she was already putting on her panties, not in actual sexual intercourse. (P v. Gonzales) o DISSENT: follow this – You are unfairly punishing him if we strictly apply the law. But what can you deduce from the fact that she was wearing her panties from a naked state. It is asking too much to actually catch them in the act of actual sexual congress. Can one invoke Article 11 in Article 247 cases? o Suggestion: Husband also has right to invoke his honor and defend it, so Art. 11 can be invoked by the one discovering the sexual congress. He can also invoke 247, obviously. o Prefer 11 over 247, because the latter results in destierro. It is not a penalty, but a limitation of his liberty. Can you invoke Art. 247 if there is mistake of fact? o Yes. Apply the Achong doctrine by analogy. o Example: The husband saw movement of buttocks, but the paramour’s penis hasn’t entered his spouse’s vagina yet. Are the RPC provisions applicable to VAWC? o Yes. Recall Art. 10: how RPC provisions apply suppletorily, unless provided otherwise. o Under RA 9262 (VAWC), Art 47: “RPC provisions supplement the VAWC law.”
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o The VAWC law even uses RPC terms for penalties: SPI: P.M.; LSPI: P.C., Slight PI: A.M. What are the circumstances in P v. Genosa? o The SC recognized the Battered Woman Syndrome. But there was no RA 9262 then yet so it’s still not an absolutory cause. o The SC did not appreciate ordinary selfdefense because the threat to the woman’s life has already ceased. There was no more unlawful aggression. o But the SC appreciated the following mitigating circumstances: 1. Passion and obfuscation 2. Diminished will power What is the Battered Woman Defense under RA 9262? o The Battered Woman Syndrome (BWS) is a justifying circumstance, notwithstanding absence of any requisites of self-defense. o The woman incurs neither criminal nor civil liability. o The defense is separate from and independent from self-defense. Who is a battered woman? o One repeatedly subjected to forceful physical or psychological behavior by a man with whom she has an intimate relationship with in order to coerce her to do something he wants.
o The cycle has to happen at least twice: 1. Tension-building phase, 2. Acute battering incident, 3. Tranquil, loving phase. What are the characteristics of the BWS? o 1. The woman believes the violence was her fault o 2. inability to place responsibility for the violence elsewhere o 3. She fears for her and her children’s lives o 4. Irrational belief that offender is omnipresent and omniscient What are the requisites of defense of relative? o 1. Unlawful aggression o 2. Reasonable necessity of the means employed to prevent or repel it o 3. In case of provocation given by the person attacked, the defender must have had no part therein o Who are the relatives under this provision? Spouse, ascendants, descendants, legitimate, natural, and adopted siblings, or relatives by affinity within the same degrees Relatives by consanguinity until the fourth degree Anyone beyond this enumeration: defense of stranger What are the requisites of defense of strangers? o 1. Unlawful aggression
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o 2. Reasonable necessity of the means employed to prevent or repel it o 3. Person defending is not motivated by revenge, resentment, or other evil motives What are the requisites of state of necessity as a justifying circumstance (Art. 11, par. 4)? o 1. The evil sought to be avoided actually exists o 2. The injury feared is greater than that done to avoid it o 3. There is no other practical and less harmful means to prevent it o What if the party invoking state of necessity is responsible for the peril? Cannot invoke this defense. o What is the injury contemplated under requisite number 2? This is a broad concept. It can be against property, liberty, etc. What is the rule on civil liability for acts in the state of necessity? o Those who were benefited by the act performed are liable to those to whom injury is caused. Note that this is a purely civil liability and does not arise from criminal liability. What are the requisites of lawful exercise of right or duty (Article 11, par. 5)? o 1. Act out of duty or office o 2. Injury caused is the consequence of the performance of that duty or right
o What if the order is illegal? Cannot follow the order unless it is apparently legal and the subordinate did not know it was actually illegal.
What is the limitation on the performance of duties? o It must be exercised neither capriciously nor oppressively, and within reasonable limits. There must act with sound discretion. o X was a deranged man who was already incapacitated by the police from doing further harm. Y, one of the policemen, seeing X lying on the ground, shot him further on the forehead. Can Y invoke performance of duty? No. The act performed was unreasonable and excessive. Can a policeman invoke SD and performance of duty at the same time? o Yes. o An example is when a policeman saw one person about to shoot another. The policeman gave a warning and the offender pointed the gun at the policeman. The policeman shot the offender. He was both defending himself and performing his duty in preventing the other person from being shot. What are the requisites of obedience to superior order? o 1. An order has been issued by a superior. o 2. The order is for a legal purpose o 3. The means used to carry out the order were lawful
Art. 12: exempting circumstances
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What are the exempting circumstances? o 1. Imbecility or insanity o 2. Minority o 3. Accident o 4. Compulsion of irresistible force o 5. Impulse of uncontrollable fear o 6. Insuperable or lawful cause What are the characteristics of exempting circumstances? o The act is criminal, but the criminal is exempt from criminal Liability o But there is civil liability o The emphasis is the actor, not the act What is insanity? o There is a complete deprivation of intelligence in committing the act, and so there is complete absence of ability to discern. o Not mere abnormality of mental faculties or mere frenzy due to anger. When should insanity exist? o In the period immediately before or at the precise moment of doing the act.
o His mental condition after doing the act is inconsequential. o Note that there is a presumption of sanity and it must be disproved beyond reasonable doubt. What does it indicate when the actor surrendered to the police after committing the crime? o There is discernment because remorse is inconsistent with insanity What if the insanity occurs after the commission of the crime? o Refer to Art. 79, which provides that one who becomes insane or imbecile after final sentence will have the sentence suspended as to the personal penalty. He will only be sentenced when reason is regained. What if there is no complete impairment or loss of intelligence, and just a partial one? o It is just a mitigating circumstance: illness that would diminish exercise of will-power without depriving consciousness of his acts o A common example is schizophrenia: there is no complete deprivation of intelligence, but there is difficulty distinguishing fantasy from reality How is mental condition of an accused determined in trial? o The judge must order the examination of the accused by a medical expert. The judge
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cannot do it alone, because he is not an expert on this matter. Under RA 9344, how are minors classified? o Children at risk are those vulnerable to and at the risk of committing criminal offenses due to personal, familial, and social circumstances. o Children in conflict with the law are those accused of or adjudged as having committed criminal offenses. What are the benevolent features of RA 9344? o Age 15 and below = age of absolute irresponsibility Exempt from criminal liability Subject to intervention program o Age over 15 and under 18 = criminally liable only where there is discernment No liability if there is lack of discernment. Also subject to intervention program. Liable if there is discernment. However, he will under a diversion program. o Is the minor over 15 but below 18 acting with discernment still entitled to the privileged mitigating circumstance under Article 68(2)? Yes. RA 9344 did not change this. What are the diversion programs for those over 15 but below 18 acting with discernment?
o Note: these are without going through court proceedings o 1. When the penalty of the crime is not over 6 years: Crimes with victims: Diversion program before law enforcement officer or punong barangay Involves mediation, family conferencing, conciliation with child and parents/guardians Crimes without victims: Diversion program before the local DSWD officer, with child and parents/guardians o 2. When the penalty of the crime exceeds 6 years: Diversion is before courts In case the penalty is not more than 12 years or just a fine, the court can determine whether diversion is appropriate or not o 3. If the offense does not fall under any of the above or the child or parents/guardian does not consent to diversion, the one handling the case forwards the records to the prosecutor or court within 3 days – and then the case is filed according to regular process Can a child be detained pending trial?
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o Yes, but only as a last resort and only for the shortest possible period of time. The authorities can resort to alternative measures such as close supervision, intensive care, or placement with a family/educational setting. What is the rule on automatic suspension of sentence? o Children below 18 at the time of commission of the crime found guilty of the offense are placed under suspended sentence without need of application. The court then determines and imposes the appropriate disposition measures afterwards. o What if the then-child is over 18 years old upon the pronouncement of guilt? It doesn’t matter; there is still suspended sentence. o What if the child reaches 18 while under suspended sentence? The court determines whether to: 1. Discharge the child 2. Order execution of sentence 3. Extend suspended sentence for a certain period, or until he reaches the maximum age of 21 o What if the child undergoes period of actual detention or commitment? It will be credited in full. What is the provision on probation?
o Upon application at any time, the court can place the child on probation in lieu of service of sentence. (This amended the Probation Law) What is a status offense and how is it treated under the law? o Any conduct which is not an offense when committed by an adult will not be considered an offense and is thus not punished if committed by a child. o Ex. curfew laws Did Ra 9344 retroact? o Yes, it retroacted to pending cases and those minors already convicted. Under 9344, the minor is still exempt from specific offenses even if he or she acted with discernment. What are these? o 1. Vagrancy o 2. Prostitution o 3. Mendicancy o 4. Sniffing rugby o What happens? These persons would undergo appropriate counseling and treatment program. When is a child in conflict with the law subject to preliminary investigation and filing of information? o 1. Child does not qualify for diversion
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o 2. Child or parents/guardians do not agree to diversion o 3. Prosecutor determines that diversion is not appropriate for the child, considering assessment/recommendation of the social worker Who are the minors disqualified from suspension of sentence? o 1. One who once enjoyed suspension of sentence already o 2. Convicted for offense punishable by death or life imprisonment Note: “punishable” need not be “actually punished” especially since the death penalty has been abolished o What was the ground under PD 603 that was repealed by RA 9344? When the child is already 18 upon promulgation of sentence. This is impliedly repealed by the provision stating that under RA9344, the age of commission of the crime is the determination of suspension of sentence, and not the age during promulgation of the judgment. After suspension of sentence, what is the disposition order? o After sentence, the court sets disposition conference within 15 days from promulgation
Minor, parents/guardian, and social worker are present o Can issue: 1. Care, guidance, and supervision orders 2. Drug and alcohol rehab 3. Participation in group counseling and the like 4. Commitment to youth rehab center of DSWD/other centers When there is doubt if the person is a minor or not, what is the appropriate proceeding? o There is presumption of minority. o File for summary proceeding in Family Court. What if the minor was alleged as a coconspirator? o The presumption of acting without discernment still applies. o Evidence of conspiracy does not automatically mean the minor acted with discernment in the commission of the crime. May the presumption still apply even if the allegation was reckless imprudence under Art. 365? o Yes. (Jarco Marketing case) What is the definition of discernment? o When the minor is able to distinguish whether his act is moral or licit or not..
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o The utterances of a minor and overt acts preceding crime, and nature of weapon is evidence of discernment. S.C. AM 02-1-18: o If the minor committed a crime and the time the law took effect, he was already 21, can he enjoy the benefit of suspension of sentence If a minor is charged with a heinous crime punishable by death or RP-death, is he entitled to suspension of conviction? o Yes. Ubi lex non distinguit, nec non distinguire debemos. What are the requisites of accident? o 1. performing lawful act with due care o 2. causes injury to another o 3. without intent or negligence What if there is negligence? o Article 365 applies: quasi-crime of reckless imprudence o Accident and negligence are mutually exclusive. o What is the difference between accident and negligence? Accident – without fault of the human being. Cannot be anticipated. Negligence – when there is some degree of fault in the person
o NOTE: Under Art. 365, the court will not consider Art. 13 and 14 in imposing the penalty because this crime is NOT intentional. What are the elements of irresistible force? o 1. Force is physical and must come from an outside source o 2. The accused acts not only without a will but even against his will, reduced to a mere instrument o 3. The duress, force, fear, or intimidation present is imminent and impending, as to induce well-grounded fear of death or serious bodily injury Thus, the fear must not be speculative, fanciful, or imagined What are the elements of uncontrollable fear? o 1. Threat which caused the fear of an evil greater than or equal to the act accused was required to commit o 2. The evil promised was of such gravity and imminence that an ordinary man would succumb to it o Ex. X is a hostage who decapitated his fellow hostage Y because their captors threatened to kill X. What is an insuperable cause? o It applies to felonies by omission – where the failure to do so is due to a lawful or insuperable cause.
o A common example is failure to comply with art. 125 of the number of hours when a person arrested must be delivered to judicial authorities, when there is a long holiday or the judicial offices are not open, or there is a calamity/accident that met them. Art. 13: mitigating circumstances
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What are the mitigating circumstances? o 1. Incomplete justifying and exempting circumstances o 2. Under 18 or over 70 Correlate with RA 9344 o 3. Praeter intentionem o 4. Sufficient provocation or threat by the offended party preceded the act o 5. Proximate vindication of grave offense o 6. Passion or obfuscation o 7. Voluntary surrender or voluntary confession prior to prosecution’s presentation of evidence o 8. Physical defect restricts means of action, defense, communication o 9. Illness diminishes will-power without complete deprivation of consciousness o 10. Analogous circumstances No similar provision for aggravating circumstances If the criminal is 80 years, is there a mitigating circumstance?
o P v. Austria 27 June 2000 – the accused was charged with rape. He was already 83 years old. His defense was erectile dysfunction. He was convicted, but the SC applied the old age as a mitigating circumstance. So far, this is the only case where this case was applied. Must mitigating circumstances be alleged in the information? o No. How are mitigating circumstances classified? o 1. Ordinary – enumerated in Art. 13 and some SPLs If there is one, penalty lowered to minimum period If there are two or more ordinary mitigating circumstances, the penalty is lowered by one degree Can be offset by generic aggravating circumstances Not considered when the penalty is a single indivisible penalty (i.e. only RP now) o 2. Privileged Lowers imposable penalty by one or more degrees Cannot be offset by any aggravating circumstance Even if the penalty is single and indivisible, it is imposed
o 3. Specific – applies to specific felonies Ex. concealment of dishonor in case of abortion by pregnant woman Ordinary
Privileged
Specific
Lower to Lower by one or To specific minimum period more degree felonies only If 2 or more, lower by one or more degree Can be offset by Cannot be offset ACs by ACs Cannot imposed indivisible penalties
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be Can be imposed on on indivisible penalties
In incomplete justifying and exempting circumstances, what are the requisites that must always be present? o 1. For self-defense, unlawful aggression o 2. For accident, due care and lack of fault When is incomplete justifying or exempting circumstance an ordinary mitigating circumstance? When is it a privileged mitigating circumstance? o Ordinary if there is only one element or there is no majority of required elements o Privileged if there is majority, but not all, of required elements
What is the nature of minority as a mitigating circumstance? o It is always a privileged mitigating circumstance o It applies to those over 15 but below 18 who acted with discernment reduce the penalty to the next lower penalty, in the proper period When can praeter intentionem not be invoked? o RA 8049 – lack of intent to commit so grave a wrong as committed CANNOT be invoked by accused in hazing incidents. Can lack of intent to commit so grave a wrong as that committed be invoked in malversation? o YES. Ex. The petitioner was a municipal treasurer, and the audit team discovered he was short P72000 of funds. After a few months, he returned the money he “borrowed.” o Note: the SC also applied a mitigating circumstance analogous to voluntary surrender in this case. What other rule must be taken into account vis-àvis praeter intentionem? o Art. 4(1) – presumption that person intends all the natural and logical consequences of his felony. o How to resolve: the means employed and the result must be so disparate that the result is not the logical and natural consequence of the means
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o Ex. X used a lead pipe to hit victim on the eyebrow, and the victim died. SC refused to apply the mitigating circumstance of lack of intent to commit so grave a wrong as that committed. o P v. Pugay: (gasoline burning case) SC also applied Art. 13(3), because the intent was less than the material act committed. What if two persons conspire to commit a felony, and one intended to commit the grave wrong as that committed, while the other did not? o The conspirator who did not intend to commit so grave a wrong as that committed cannot invoke the mitigating circumstance. o BUT if both of them did not intend to commit so grave a wrong as that committed, then both can invoke the mitigating circumstance. Can both treachery and Art 13(3) be invoked together? o Yes. Treachery refers to the manner or method used to kill the victim, while praeter intentionem refers to the state of mind of the person. They may co-exist. Can praeter intentionem be invoked for culpable felonies? o No. Obviously “intentionem” requires intent in the first place, just that the intent did not match the result. What are the elements of sufficient provocation?
o 1. Sufficient Merely shouting at the accused and asking the latter to leave is NOT proportionate to the latter killing the former. Need not constitute unlawful aggression under Art. 11; the threshold here is lower. Need not be put in words; can be in action. Ex. entering another’s property and then starting to gather the latter’s crops. o 2. Immediately preceding the commission of the crime This actually means “immediate,” not like grave vindication which just requires proximity o 3. Originate from the offended party If provocation and passion/obfuscation are based on the same facts, is the accused entitled to two separate mitigating circumstances or only one? o Only one. The accused is only entitled to only one mitigating circumstance, because both are based on the same facts. o Same rule between vindication of grave offense and sufficient provocation. What is “immediate” in “immediate vindication of grave offense”?
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o Proximity. It need not immediately precede the act, but there must be no lapse of sufficient time. o How sufficient is sufficient time? If there was only a gap of 30 minutes, still okay. P v. Palabrica: 1 day lapse is not okay. P v. Ignas: only said “hours” – still okay. What is “grave offense”? o “Grave offense” in this provision is different from grave offense under Art. 9. Grave offense under this provision might not even be a felony at all. It usually is an assault to honor. o When is an offense grave? 1. Determine social standing of parties 2. Determine place and time and occasion when offense committed o Grave offense even includes an insult “You are living at the expense of your wife!” – appreciated as grave offense o In a case, hitting someone with a bamboo stick is not a grave offense. X’s son eloped with Y’s daughter. At that time, it was really deemed a dishonor. Y looked for his daughter for three days. Y sought revenge against X’s son and killed him. Is this vindication of grave offense? (P v. Diokno)
o The SC said that it was. Even if three days lapsed, the act of elopement was deemed continuous, and the effect was still there. o NOTE: This case may be a product of its time. Now, this situation is pretty ordinary already. So this case may be archaic already. What is necessary for passion or obfuscation to be considered? o It must arise from lawful sentiments of the accused. The offended party must have done an act unlawful and sufficient to excite passion or obfuscation o It must not come from lawlessness or revenge, or an illegitimate relationship Bello: EXCEPTION. He lived with common law wife for 10 years. Bello supported her for 10 years. After, the common law wife wanted out, and wanted to live with another man. Bello killed her. “Eh wala ka namang ibubuga talaga eh.” SC HELD: Passion and obfuscation. Although the relationship was illegitimate, nevertheless, the victim was ungrateful. How much lapse of time is allowed for passion and obfuscation to be appreciated? o P v. Ventura: Although passion and obfuscation may arise from jealousy, since
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there was a lapse of 1 week, accused was expected to recover his equanimity. Can vindication of grave offense co-exist with passion or obfuscation? o No. If they arise from the same facts, only one will be appreciated. Can treachery co-exist with passion or obfuscation? o No. Treachery CANNOT co-exist with passion and obfuscation. When a person acts with passion or obfuscation, he loses his reason and self-control, which is inconsistent with treachery, because one who acts with treachery presupposes that he adopted a mode of attack of killing the victim. o Contra: treachery can co-exist with praeter intentionem What are the elements of voluntary surrender? o 1. Offender surrendered to a person in authority or his agent o 2. Offender surrendered before arrest is effected o 3. Surrender is voluntary, i.e., spontaneous and coming from intent to acknowledge guilt and save time/resources of authorities o 4. No pending warrant of arrest or information filed What is the most important element of voluntary surrender?
o The spontaneity of such and intent to give up and unconditionally surrender to authorities. How has this provision been applied by analogy by the SC? o Navalos v. P: Before being charged of malersation, the accused returned the amount, he was deemed to have “voluntarily surrendered” – analogous. The return of the money must be spontaneous. What are the requisites of voluntary plea of guilt? o 1. Made in open court o 2. Spontaneous and unconditional o 3. Prior to presentation of evidence by the prosecution Does this include extra-judicial confessions? o No. May voluntary plea of guilt and voluntary surrender both be considered in one case? o Yes. They are two separate and distinct circumstances not arising from the same facts. The offended party is entitled to two mitigating circumstances. What is the character of the plea of guilty? o It must be unconditional and the accused must admit to the offense charged. What is relevant for the mitigating circumstance of physical defects and illness? o The defect or illness must relate to the offense charged, because the defect must have
restricted his means of action, defense, or communication with his fellow human beings. o Ex. rape committed by a deaf and dumb man on the girl of his dreams to whom he cannot convey his feelings to o But not when it was committed by a man with a severed left hand, because it does not limit his means of action, defense, or communication What is necessary for illness that diminishes willpower of the accused? o It must only diminish and not deprive the offender of the consciousness of his acts; otherwise, it is an exempting circumstance What are NOT examples of analogous mitigating circumstances? o 1. Being part of a minority group o 2. Extreme poverty o 3. Abberatio ictus o 4. Mistake in identitiy What are some examples of analogous mitigating circumstances? o 1. Mitigated mental capacity of a battered woman (decided pre-RA 9262) o 2. Voluntary return of stolen goods
Art. 14: aggravating circumstances
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What are the aggravating circumstances? o 1. Advantage of public position
o 2. In contempt of or with insult to public authorities o 3. With insult or disregard of rank, age, or sex, or in the dwelling of the offended party, if the latter did not provoke o 4. Abuse of confidence or obvious ungratefulness o 5. Committed in the palace of the Chief Executive, or in his presence, or where public authorities are discharging their duties, or in a place of religious worship o 6. Nighttime, or in an uninhabited place, or by a band o 7. Committed during a conflagration, shipwreck, earthquake, epidemic, or calamity o 8. With aid of armed men or persons who insure/afford impunity o 9. Recidivism o 10. Reiteracion o 11. Price, reward, or promise o 12. By means of inundation, fire, poison, explosion, stranding of a vessel, derailment of locomotive, use of any artifice involving waste and ruin o 13. Evident premeditation o 14. Craft, fraud, or disguise o 15. Superior strength or means employed to weaken the defense o 16. Treachery
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o 17. Ignominy o 18. Committed after unlawful entry o 19. Committed after breaking through a wall, roof, floor, door, or window o 20. With aid of persons under 15 years old, or motor vehicles o 21. Cruelty Compare with mitigating circumstances: o This list is exclusive, whereas in mitigating circumstances, there are analogous circumstances allowed o Aggravating circumstances must be alleged in the information, mitigating circumstances need not (since they’re matters of defense) What are the types of aggravating circumstances? o 1. Generic aggravating Apply generally to all crimes Can be offset by ordinary mitigating circumstances Increases penalty to maximum period Are additional rapes or killing in the case of robbery with rape or robbery with homicide, for instances, aggravating? No, it’s not enumerated under law as such. It’s an anomalous situation, but doubt is resolved in favor of the accused.
P v. Hipol: The malversed amount was so huge, that the Sol. Gen said that the crime was already economic sabotage and must be considered an aggravating circumstance. SC: There is no such aggravating circumstance as economic sabotage. No matter how huge the amount is, it is not aggravating o 2. Qualifying circumstances Cannot be offset by any mitigating circumstance Changes nature of crime Must be alleged in the Information as such new offense No need to increase the penalty because the change in the crime itself has changed the penalty as well to a higher one Can qualifying circumstances not alleged in the information but proved in trial be appreciated as generic aggravating circumstances? No, due to the amendment in Criminal Procedure X was charged with homicide with the generic aggravating circumstance of treachery. Can the trial court find him liable for murder?
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No, treachery was alleged as a general aggravating and not a qualifying circumstance. How many circumstances are needed to qualify an offense? Just one. The rest become generic aggravating circumstances. o 3. Special or specific aggravating circumstances Apply to specific felonies; found outside Art. 14 o 4. Inherent circumstances Those already integral to the crime and thus cannot aggravate the penalty Ex. In the crime of falsification of document by public authority, then “abuse of public position” is deemed inherent. Same with malversation and other crimes by public officers. What is the special aggravating circumstance introduced by RA 7659? o Committed by an organized/syndicated group – impose maximum penalty if the offense was committed by any person belonging to an organized or syndicated crime group (2 or more persons collaborating or mutually helping one another for purposes of gain in the commission of the crime)
What are the special aggravating circumstances introduced by RA 8353, Article 266-B? o See crimes against persons: ex. victim is under 18 and rapist is relative, gave victim AIDS, committed by AFP/PNP, etc.
Art. 14(1) – advantage of public position
When is this present? o When the public official uses the influence, prestige, and ascendancy of his office to realize the purpose. o Tests under case law: 1. Offense is in relation to his office 2. He cannot commit the offense without holding such public office o Ex. jail guard who was able to use his position to kill an inmate When does advantage of public position not apply? o Does not apply if the public position is a constituent element of the crime; o Examples: Crimes committed by public officers Inherent in the crime of falsification by a public officer of a public document If the public officer could have committed the crime anyway without the use of public position, it is not aggravating.
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o P v. Tabeon: If the accused given a gun by the government by virtue of his position uses that gun to commit homicide, the use of that gun is an aggravating circumstance. He could not have used that gun unless he was a public officer. o But see P v. Villamor: Where Villamor used a gun officially issued to him by virtue of office – use of that gun was not an abuse of public position. This is contrary to Tabeon. o N.B. The later decision is Villamor, but Justice Callejo agrees with Tabeon. Follow Villamor, though, Two policemen were in the police car. They stopped and ordered a girl to enter the car. One policeman stole the watch and wallet of the girl. The policeman driving did not say anything. Both were held liable for robbery. Did the aggravating circumstance of taking advantage of public position apply even to the driver of the car? o Yes. He could have prevented the other policeman from robbing the siblings. But he did not. This was abuse of public position. Is this a generic or special aggravating circumstance? o The use of one’s public position in the commission of a crime is a special aggravating circumstance. (RA 7659, Sec. 23)
o Thus, it cannot be offset by generic mitigating circumstances. Art 14(2) – with contempt of or in insult of public authority
What are the requisites of contempt/insult of public authority? o 1. crime committed o 2. person in authority engaged in exercise of public position o 3. offender knew he was a person in authority o 4. victim is NOT a person in authority A barangay captain was playing cards with some people. The accused shot him. Does this provision apply? o No. First, the person in authority must NOT be the victim per se, and second, he was not performing his duty at that time. He was playing cards. o What if the crime was committed against the person in authority? Then it is direct assault. This aggravating circumstance does not apply. What if the crime was only committed in the presence of an agent of a person in authority? o This provision does not apply. o Ex. If in the presence of a policeman, not aggravating because the policeman is only an agent of a person in authority.
Supposing a crime is committed in the presence of a professor while the latter was performing his duty? o This is not aggravated. A teacher or professor is only a person in authority under Art. 148 and 152 of the RPC (direct assault). Is there an exception? o RA 9165 – a teacher or professor is a person in authority for the purpose of enforcement of the DDA. o If you smoke marijuana in the presence of a professor, the professor is a person in authority. In the national penitentiary, sometimes the inmates feel bored and they kill each other. Is this aggravating? o Yes. Where the inmates killed another in the National Penitentiary, this was in contempt of public authority.
Art. 14(3a) – insult to age, rank, sex
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What is required for this aggravating circumstance to apply? o There must be deliberate intent to insult or show manifest disregard for the age, rank, sex. Not merely because the victim is a female or has a rank, this A.C. applies. Can this coincide with passion and obfuscation?
o No, because the offender must have deliberately intended to offend or insult the offended. The accused was conversing with the barangay captain and the former killed the latter. May the A.C. of “rank” apply? o No. The mere fact that victim was a person with a rank, such as barangay captain does not necessarily mean it’s aggravating, absent evidence that the killing was deliberately intended to disregard or insult or threaten to insult the rank of the victim. What are further considerations for circumstance of rank? o The charge must not include rank as an element. If the accused was charged with complex crime of direct assault of PIA with murder – then the AC cannot be appreciated because it is inherent. o If the charge was just murder, then the AC applies. When is the A.C. of “sex” not applicable? o 1. If the accused acted with passion or obfuscation, o 2. when there is an amorous relationship between the accused and the victim, o 3. When there is a relationship of employeremployee,
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o 4. When the sex of the victim is inherent in the crime, A 20-year-old man raped an 80-year-old woman. The victim was the teacher of the accused in grade 1. Key fact: victim was already retired! Does insult to rank apply? o Yes. The Fact that the offended party was already retired did not diminish the respect due her rank as his former teacher. Do these this apply to crimes against property? o No. Not aggravating in crimes against property. o Examples of where insult to rank, age, sex does not apply: Robbery Robbery with homicide – since here, the homicide was merely an incident to robbery [NOTE: the Escote doctrine applies to treachery, not here.] Is insult to rank, age, sex absorbed by treachery? o No. The aggravating circumstances of age and sex cannot be absorbed by treachery. Treachery pertains to manner of commission. Insult to age, rank, sex refers to relationship. o Ex. The accused murdered a child 3 days old. The SC appreciated the A.C. of age in convicting the accused of murder. Also
treacherous since the child cannot defend himself. o But see P v. Malolot: Accused hacked to death an 11 month old child. SC HELD: A.C. of age of victim DOES NOT apply, because it was absorbed by treachery. (Justice Callejo does not agree with this case. But Malolot might be prevailing, being the newer case). Art 14(3b) – dwelling
Does dwelling apply when both parties live in the same house? o Generally, it is not aggravating. o Victim was stay-in laundrywoman, but it was not her house. The killer was the houseboy, who also lived that house. The laundrywoman had her personal room, and the houseboy had his as well. Is dwelling aggravating? Yes. Although the offender and offended lived in the same house, the crime is aggravated by dwelling, because the room was deemed a dwelling, notwithstanding being in the same house. Each room although located in the same house is considered a dwelling separate and independent of the adjacent rooms. What is considered as dwelling?
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o Includes every dependency of the house and every integral part of the house. Includes staircase, enclosure under the house, and the terrace. If the person is stepping on the first rung of stairs, then it is dwelling. But if he has yet to step, not yet. o To be considered as dwelling, it must be used exclusively for rest and comfort. Ex. the victim owns a building consisting of two floors: ground floor is video shop and 2nd floor is residence. The victim was killed in the video shop. Here, dwelling does not apply. The video shop is not exclusively for rest and comfort, even if in the same building. What if the person is a squatter? o Dwelling still applies. The law does not make any distinction as to the validity of title over the property. What if the land is enclosed with a fence and the person is outside the house but inside the fence? o Dwelling does not apply. When does dwelling not apply? o If the victim gave sufficient provocation. o What are the elements of sufficient provocation? 1. Offended party gives provocation 2. The provocation is sufficient
is homicide and arson as separate crimes. There is no special complex crime of homicide with arson.
3. The provocation is immediately before the crime Does the offender have to actually enter the house? o No. The law does not require that the offender must also be in the house. The offender can shoot from outside the house and kill a person inside – it is still considered as dwelling, Does dwelling apply in robbery? o Distinguish: o Dwelling is aggravating in robbery with homicide or robbery with intimidation of persons. o However, in robbery with force upon things, dwelling is inherent in the crime. Is dwelling aggravating in arson? o No. (PD 1613) A person dies inside a building burned on purpose. When is it homicide, and when is it arson? o Intent determines: o 1. If the intent is to burn the house, then the burning is arson even if a person dies. Homicide is absorbed. o 2. If the intent is to kill the person and the burning was the means employed to commit the crime, it is homicide. o 3. If the intent is to kill the person, and the house is burned to cover up the crime, then it
Art 14(4) – ungratefulness
abuse
of
confidence
or
obvious
What are the elements of abuse of confidence? o 1. Offended party reposed trust and confidence to offender o 2. Offender abused this trust and confidence What must be the character of the confidence reposed? o The confidence must be IMMEDIATE AND PERSONAL such that it gives the accused some advantage and makes it easier to commit the crime. o Ex. The mother of the victim had a common law husband, whom the victim called “papa.” “Papa” raped the daughter. This was abuse of confidence, even if the relationship between the mom and “papa” was illicit.
Art. 14(5) –committed in a place of worship
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What are contemplated here? o 1. Committed in palace of Chief Executive o 2. Committed in the presence of Chief Executive o 3. Committed in place where public officers are discharging duties o 4. Committed in place of worship
o Distinguish 1, 2, and 4 from 3: For palace, presence of CE, and place of worship it is enough that the offense was committed in that place For public officers in discharge of their duties, it is necessary that the performance of function is being done How will this aggravating circumstance of place of worship (and the like) apply? o There must be intent from the outset to commit the crime inside the place of worship. Here, the accused did not intend to commit the crime inside the church (she did not expect the man to touch her thigh).
Art. 14(6) – night time, uninhabited place, or by a band
If all three are present, are these separate aggravating circumstances or only one? o General rule: only one applies. o Exception: These may be considered separate and distinct if their elements are distinctly perceived and can subsist independently of each other, revealing greater perversity. What are the tests of night time? o Subjective test – when night time was sought purposely to commit the crime. o Objective test – when nighttime facilitated the commission of the crime
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o N.B. The subjective and objective tests are alternative. They need not concur. Either test’s application is sufficient. o It is not enough that the crime was committed in night time. There must be evidence that night time was sought for, or the nocturnity facilitated the commission of the offense What if the moon is shining brightly or there is a streetlamp illuminating the event? o Then nighttime is not appreciable. When is nighttime absorbed by treachery? o If it is part of the treacherous means to insure execution of the crime. Otherwise, it is separately appreciated. What determines if the crime was committed in an uninhabited place (despoblado)? o It is not the distance, but the possibility or impossibility of immediate aid to be obtained. The more important consideration is if the commission of the crime makes it possible for the victim to receive aid. o Ex. The distance is not so great, but one has to climb up a hill to reach the house to render aid. There is despoblado. What is the burden of the prosecution? o Prosecution must prove that the accused chose the remoteness of the place to aid the commission of the crime, or to conceal the commission of the crime.
When is there a band? o More than three armed malefactors (at least four). o Must all of them be armed? Yes. What is the test for armament? o Any weapon which, by reason of its intrinsic nature or purpose, is capable of inflicting serious or fatal injuries. What is the character of participation of the four malefactors? o The four armed persons contemplated in the law must be principals by direct participation for band to be considered. They must act together in the execution of the crime. There were four accused, and it was alleged that they composed a band, in the information. Two were acquitted. Is there crime by a band? o Band is still subsistent even if two were acquitted. o DISSENT: No band. What is the characteristic of crime by a band? o Merely generic. (Ex. robbery with rape, robbery with homicide, physical injuries, etc.) This means that this can be offset by a generic MC. o Contrast: Art. 266-B if rape is committed by 2 or more persons, the offender is sentenced
from RP to death (special aggravating circumstance). When is crime by a band a qualifying circumstance, and not just a generic aggravating circumstance? o Only Article 294, pars. 3 to 5. This is robbery with violation against persons. o Recall: Par 1: with homicide band is aggravating Par 2: with rape, intentional mutilation, and lesiones graves resulting into blindness, impotency, imbecility, or insanity aggravating Par 3 to 5: other kinds of robbery with violence against persons band is qualifying
Art. 14(7) – calamity or misfortune
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To what situations does this apply to? o Conflagration, shipwreck, earthquake, epidemic o And other calamities and misfortunes These must be similar to the abovementioned, so it cannot refer to “acts of men” Distinguish from Art. 14(12):
o That refers to means of committing the crime. This provision refers to crime committed on the occasion of calamity or misfortune.
Art. 14(8) – with aid of armed men
Requisites for aid of armed men? o 1. Armed men or persons took part in the commission of the crime directly or indirectly o 2. Accused availed himself of aid of such men or relied upon them when the crime was committed The armed men are accomplices who take part in a minor capacity, directly or indirectly. What if there is a conspiracy with the armed men? o There should not be any conspiracy or the armed men must not be principals.
Band
Armed men
All are principals
Accomplices
Organized crime syndicate
At least 4 armed Number men immaterial Crimes specified
not Crimes specified
At least persons
two
not Crimes are for gain
Art 14(9, 10) – recidivism, reiteracion
What are the different forms of habituality? o 1. Recidivism o 2. Reiteracion 47
o 3. Habitual delinquency o 4. Quasi-recidivism Who is a recidivist? o Elements: 1. During trial for one crime 2. Has been previously convicted 3. By final judgment 4. Of another crime under the same title in the RPC o Important things to note: At least two convictions – one preceding the other, and the preceding one must have final judgment already Both offenses must fall under the same title in the RPC No specific period between convictions required o What if the first offense is pardoned? Still a recidivist because only the effects of the crime were extinguished by pardon, not the existence of the crime What is the nature of recidivism? o Generic aggravating circumstance What is reiteracion? o Elements: 1. The offender has previously been punished (has served sentence) 2. First offense must have had a greater or equal penalty;
3. Or two or more prior offenses with lighter penalty o Do they have to fall under the same title of the code? No. Recidivism
Reiteracion
Previous conviction by final Previous judgment sentence
service
of
Under same title of the No need to be under same RPC title No requirement as to One crime or greater penalty in prior conviction penalty or at least two crimes of lesser penalty
What is habitual delinquency? o Elements: 1. Within a period of 10 years from date of release or last conviction 2. For falsification, robbery, estafa, theft, serious or less serious physical injuries (FRETSeL) 3. Found guilty of said crimes a third time or oftener o What is the nature of habitual delinquency? It is special aggravating circumstance, which imposes an additional penalty (not just increase) which escalates with the number of convictions. Thus there
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will be two penalties: for the crime and for the habitual delinquency. As such, this cannot be offset by mitigating circumstances o Important things: At least 2 convictions The third conviction must be within 10 years from the second conviction. The 10 year period is counted from the date of release if he had been released when against convicted. o Can one be a recidivist and a habitual offender at the same time? Yes, if he is convicted a third time for crimes of estafa, robbery, or theft which are within Title X of the RPC, or for serious and less serious physical injuries which are both within Title VIII of the RPC. What is quasi-recividism? o Elements: 1. Offender previously convicted by final judgment 2. Before beginning to serve such sentence, or while serving it, he commits a felony o What is the nature of quasi-recividism? It is a special aggravating circumstance which must be alleged in the information
Cannot be offset by ordinary mitigating circumstances o Effect: Penalize convict with maximum period for the new felony committed o What if during service of first conviction, he reaches 70 years old or he completes service of the first conviction after 70? He is pardoned, unless he is a habitual criminal or his conduct/circumstances show he is unworthy of pardon
Art 14(11) – price, reward, or promise
What must be given as price, reward, or promise? o Need not be money. When does this aggravating circumstance apply? o But the inducement MUST be the primary consideration by the principal by direct participation. If the offer is accepted, does the AC apply to both offeror and offeree? o YES. Both of them.
Art 14(13) – evident premeditation
Art 14(12) – explosives, poison, fire, etc.
o If used to commit ANY of the crimes in the RPC and it results to injury or death of any person, it is an aggravating circumstance o Except in furtherance of political crimes, which absorbs the use of explosives o N.B. contrast this with illegally possessed firearms, which only aggravates murder or homicide When do these circumstances cease becoming generic aggravating circumstances? o 1. When it is a crime in itself o 2. When it is a means included in defining a crime
Take note of COMADRE and MALNGAN (very important cases) Under RA 8294, when does the use of unlawfully manufactured, acquired, or possessed explosives aggravate?
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What are the elements of evident premeditation? o 1. Proof of time when the accused came up with the determination to commit the crime o 2. Overt act by accused showing he determined to commit the crime and that he clung to that determination. o 3. Lapse of time between the determination and decision to carry it out. What is the essence of this aggravating circumstance? o Precedence of cool thought and reflection How much time must elapse?
o The law does not give a formula. Each case must be resolved on the extent of each factual circumstance. o P v. Beltran: There was only a lapse of two hours from the decision to commit the crime and the actual commission of the crime. o Was there evident premeditation when one wanted to kill X but he killed Y instead? No. Because he did not intend to kill the other guy. But if one decided to kill “any Ilocano or anybody he encounters” and he does, this AC applies. So the test is what the initial plan was (whether it involved a specific person or group) and whether the execution matched the plan. When is evident premeditation inherent? o Evident premeditation is inherent in every specific intent felony. o Examples: Kidnapping Robbery Estafa (intent to gain) Piracy in Phil. Waters When is there evident premeditation in robbery with homicide, and when is there none?
o If in addition to the crime of robbery, the accused intended to kill a person, evident premeditation is aggravating. o If he had no plan to kill a person, but he ends up killing a person in the house who put up resistance, there is no evident premeditation. Does evident premeditation apply to conspiracy? o If two or more persons conspire to commit a crime, and they decide to commit it, there may be evident premeditation if the conspiracy allowed the conspirators to ponder upon and reflect on their decision to commit a felony. o Differentiate: 1. instant conspiracy: has no evident premeditation 2. non-instant conspiracy: time to reflect
Art. 14(14) – craft, fraud, or disguise
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Distinguish: o 1. Craft – cunning or intellectual trickery to carry out the evil design o 2. Fraud – deceit, insidious words and machinations o 3. Disguise – concealment of identity What is the relationship of these with treachery? o Treachery absorbs these. Craft and fraud may be aggravating in robbery with homicide, where the accused induced the victim to
o Can superior strength in this case offset a mitigating circumstance? No because it already lost its juridical existence.
take them where the cows they supposedly wanted to buy are found. But they ended up killing the victim. o HELD: Aggravated by craft. Used intellectual trickery. Art 14(15) – superior strength
Art 14(16) – treachery
When is there superior strength? o Offenders intentionally employ disproportionate force to the means of defense available to the offended party Four accused were armed with a knife. One killed the victim, but there was conspiracy. Only one was armed. Does superior strength apply? o Yes, still superior strength, because the victim was unarmed. Does superior strength apply in parricide? o No, do not consider abuse of superior strength in parricide. It is generally accepted that the husband is physically stronger than the wife. What happens when an aggravating circumstance is absorbed by another? o It loses its juridical existence. o What is the relationship between treachery and abuse of superior strength? Generally, abuse of superior strength is absorbed by treachery. Abuse of superior strength then loses its juridical existence
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For treachery to exist either as a generic aggravating or qualifying circumstance, what two conditions must apply? o 1. Employment or means, manner, or method of execution that would ensure the safety of the offender from any defense or retaliation of the offended party o 2. Deliberate act of the offender or conscious choice of the means, manner, or method of execution Shown through a) prior conduct of the offender; b) relationship of the parties; c) nature of the killing May treachery be considered in carnapping with killing of a person? o No. Treachery is not aggravating in qualified carnapping. Carnapping is a crime against property, so treachery is NOT aggravating. (As held in a case) o Is this still true today? NOT ANYMORE. Take note of P. v. ESCOTE (see discussion below), which
appreciated treachery in robbery with homicide.
P v. Escote o Take note that before this case, the SC has always been divided whether treachery can apply to robbery with homicide. Those who say no say that it can’t apply because robbery with homicide, which is a crime against property. o But here, J. Callejo decided to cite Spanish SC decisions, stating that treachery may aggravate the homicide part of that special complex crime. So treachery applies. o Why not qualifying? The crime of robbery with homicide is a unique crime in the sense that there can be no robbery with murder. Homicide is always used as a generic term, even if the second component is actually murder. And even if the homicide was actually just out of negligence, it can still be robbery with homicide. Is treachery qualifying in special complex crime of kidnapping with murder? o Yes. If the victim of kidnapping is killed with treachery, it is a special complex crime of kidnapping with murder. o So treachery can apply, under the Escote rule.
Does suddenness of attack per se prove treachery? o No, Mere suddenness of the attack does not by itself suggest treachery, unless the offender used the suddenness of the attack as means or method to ensure success of strike. o Chance attacks or crimes done in the spur of the moment, or those preceded by heated altercation, are NOT treacherous May treachery be considered if the wrongful act done be different from that intended by the offender? o Treachery is present even if the victim killed is different the one intended to be killed (because what only matters is the means of killing). o Treachery may be present in aberratio ictus or error in personae, again because it is not the intent but the means/method that matters. What is the nature of killing by poisoning? o Treachery is inherent in killing by poisoning. If the offender poisoned the victim, treachery is inherent.
Art 14(17) – ignominy
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What is ignominy? o Circumstance pertaining to a moral order which adds disgrace or obloquy to the material injury caused to the offended party and tends to make the crime more humiliating
Examples of ignominy: o 1. The accused lighted a cigarette on the pubic area of the victim which caused blisters. o 2. When the accused focused his flashlight on the genitals of the offended party, and he examined it before he raped her in front of her father. o 3. Raped victim before her betrothed o 4. Asking her to present her full nakedness before raping her In the Bacule and Sailan cases, where respectively, the rapist tied a banana fiber around his penis before the rape, or when the rapist raped the victim dog-style, there was ignominy. Does this still apply? o No, these must be modified. Art. 266-A of RPC: Decisions in Bacule and Sailan are now amended. These are now acts of sexual assault. The accused after killing the victim cut off the left leg and took the flesh from the legs and shoulders of the victim. Is this ignominy? o No, because the victim was already dead.
Art 14(20) – with aid of minors under 15 years of age/motor vehicles
Is the minor himself liable? o No. Remember RA 9344 – a minor under 15 is absolutely exempt from liability o So if he assists, then the minor is completely exempt from liability But the same is still an aggravating circumstance for the offender of legal age. When is use of motorized means of conveyance aggravating? o When the motor vehicle was purposely used to facilitate the commission of the offense o Not when used to escape
Art 14(21) – Cruelty
Art 14(18-19) – unlawful entry or breaking in
When is it inherent? o 1. Trespass o 2. Robbery with force upon things
When is there unlawful entry? o When an entrance is through a way not intended for such purpose o Must be for purposes of entry and not escape 53
What is cruelty? o Unnecessary physical pain in the commission of the crime What is the test? o Whether the accused deliberately and despicably augmented the wrong committed by him by causing another wrong not necessary for its commission, or inhumanly increasing the suffering of the victim, slowly and gradually
contrary, the positive finding for drugs shall be considered an aggravating circumstance.
Does the number of wounds per se determine cruelty? o No. It is the deliberate act of committing the crime to cause unnecessary pain, not number of wounds. o Ex. 20 wounds inflicted rapidly is usually not cruelty o Ex. 20 wounds excruciatingly inflicted, where the person savored the act, can be cruelty There can be no crime of robbery with multiple homicide, regardless of the number of victims. But supposing for this reason of robbery, two are killed, can we not consider the 2nd killing as an aggravating circumstance analogous to cruelty? o No. Notwithstanding how many people he killed, there is no aggravating circumstance. o The reason is simple: it is not among those listed in Art. 14.
R.A. 8294
Special laws relating to aggravating circumstances
R.A. 9165
Supposing the accused was under the influence of drugs and then he killed a person, may the killing by that person under the influence of drugs be considered an aggravating circumstance in the commission of the crime? o Yes. Under R.A. 9165, sec. 25 – notwithstanding provisions of law to the
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P v. Comadre – Justice Tinga said that 8294 amended Art 14(12), because usage of illegally possessed firearms becomes an aggravating circumstance. “Tinga: if the person is in lawful possession of the explosives, then he uses it, it is QUALIFYING to murder.” Dissent of Callejo: o It’s absurd! If illegally possessed – only aggravating. If legally possessed – qualified to murder! This is unjust. o Use of an unlicensed explosive is AGGRAVATING. Because it says any crime in the RPC. So that should include murder. It shouldn’t be qualifying. If unlicensed firearm is used to commit murder or homicide, it is merely an aggravating circumstance. But what kind? Is it generic or special AC? o It is a special AC, not merely generic. So there can be no offset. Does illegal possession aggravate attempted or frustrated homicide or murder? o No. The law says homicide or murder. It must be consummated. If the crime is merely attempted or frustrated, the AC does not apply.
Under 8294, if one uses an unlicensed firearm to commit a crime other than homicide or murder, then the use of the unlicensed arm is neither a separate crime nor an AC. BUT that person must be convicted for that other crime, before the usage of an unlicensed firearm can be considered as either a separate crime or an AC. Does illegal possession of unlicensed firearm aggravate robbery with homicide? o No. The law is clear: only murder or homicide. (Although there are SC decisions to the contrary.) Do the words homicide and murder include parricide and infanticide? Or should it be read strictly? o P v. Mendoza – murder is used in its generic term. It therefore include parricide or infanticide, as the case may be. o But one can argue that since the law only mentions these two crimes, under pro reo, then it must be construed in favor of the victim. There is security guard of an agency. The agency has license to possess firearm, but the guard does not. The security guard used the gun to commit murder. Is it AC? o Yes, it is. Even if the employer was licensed but the guard had no license to possess that firearm, then RA 8294 applies.
An accused committed double murder (complex crime). He used an unlicensed firearm. Is it special AC? o It should be. The law does not distinguish whether it is simple or complex. But there is no case yet.
RA 8353
When the accused raped the victim in the presence of her parents and husband, there was aggravating circumstance of adding ignominy. Is this still applicable?? o Not anymore. In RA 8353, it is a SPECIAL QUALIFYING circumstance. (under the enumeration) R.A. 8353 is found in Art. 266-B of the RPC. The crime of simple rape becomes qualified – becomes penalty of RP to death. Did R.A. 8353 amend Art 14 of the RPC? o Not really. o In Art 266-B, the use of a deadly weapon to commit rape is a special qualifying circumstance which increases the penalty from RP to RP/death. It is not an AC under Art. 14, but under Art. 266-B and 266-C of the RPC.
Art. 15: alternative circumstances
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What are alternative circumstances?
o Either aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission o Only considered when they influence the commission of the crime What are the three alternative circumstances? o 1. Relationship o 2. Intoxication o 3. Degree of instruction/education of offender What is the scope of relationship under Article 15? o Spouse o Ascendant, descendant o Legitimate, natural, adopted siblings o Relative by affinity in same degrees o What if the relationship is just between step-parent and stepchild? The relationship between step father and step son is akin to that to an ascendant and descendant and is subject to AC of relationship. BUT relationship between step grandniece and step grandfather is not one of the relationships contemplated in Art. 15 of the RPC, as with similar examples. o What about first cousins?
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When the accused and victim are first cousins, relationship is NOT aggravating. o What about uncle and nephew? No. Uncle and nephew/niece not covered. Is relationship an AC in rape? o Yes. o Relationship is aggravating in crimes against chastity, including rape. o While rape is now a crime against persons, it does not lose its nature as a crime against chastity, because for rape to be committed there must be lewd design. Thus, relationship is still an AC in rape. o What is the effect of father-daughter relationship in rape? It’s now a special aggravating circumstance under RA 8353. No need to resort to relationship as an alternative circumstance. What if the imposable penalty becomes death? o In crimes where the imposable penalty is death, relationship shall not be deemed an AC, regardless of the crime. When is relationship aggravating and when is it mitigating?
o Relationship is aggravating in crimes against chastity, whether offender is of higher or lower degree relative o Relationship is mitigating in crimes against property When is intoxication mitigating? o If not habitual, or not pursuant to planning a felony, and affected mental faculties o It is aggravating if there is habitualness or intentional intoxication What is the rule on education? o Low education may be mitigating but never aggravating o High education may be aggravating but never mitigating o When is the high education of a person aggravating? When his education puts him in better position than the ordinary offenders. Ex. estafa by a lawyer When is education ignored? o 1. If the crime is basically wrong like parricide, murder, rape, or robbery, it is immaterial whether the offender is schooled or not. o 2. Education has already been considered by the provision such as abortion conducted by a physician.
PERSONS CRIMINALLY LIABLE
May a private corporation, partnership, or association or other juridical entity be criminally liable? o The general rule is that corporations are not criminally liable because there is no criminal intent. o Except: when the law provides that officers or employees are liable. o Can both the employer and employee be liable as principals by direct participation? Yes, when the employee performed consciously participated in the acts (ex. illegal recruitment). He must know of the illegality and still further the act. o Trust Receipts Law P.D. 115 – when violated by corporation, partnership, or association: penalty is imposed on responsible officers o Labor Code ex. illegal recruitment (39-D) – same penalty Who are liable? o 1. Grave and less grave offenses: principals, accomplices, accessories o 2. Light offenses: principals and accomplies
Art. 17: principals
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When do these provisions apply?
o These provisions only apply when two or more people are acting criminally. Otherwise, it’s just the principal. When may a person be criminally liable as principal by direct participation? o Participation in criminal execution o Carrying out the plan and directly participating in the execution N.B. There must be conspiracy, under this usual definition o But can there be principals by direct participation without conspiracy? Yes: the usual example of two people attacking a cocky guy in a bar with prior planning. The victim died due to two bullets, one from each gun. There is no conspiracy here, but both are liable as principals by direct participation. How about the mastermind? For him to be a principal, does he have to commit an overt act in the execution of the planned conspiracy? o Enough to be held as co-principal through conspiracy, as long as there is involvement in the planning and commission. What should the overt act consist of for principals by direct participation? o 1. Active participation o 2. Or giving moral assistance to the other conspirators
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Mere presence Exercising moral ascendancy What is the general rule as to non-appearance? o Deemed a desistance which is favored. Mere participation in a conspiracy is not a crime, because there is no act yet to carry it out. When there is no criminal participation, there is no liability. o But see the exceptions for masterminds and PDIs. Can someone not be in the scene of the crime and still be a principal? o Yes. For example, there is conspiracy and one is on look-out duty for policemen. o For as long as the conspirators perform specific acts that were coordinated pursuant to the conspiracy. X, Y, and Z conspired to kill V. All three stabbed V. Is it a complex crime? o No. There is only one crime of homicide, as there is only one victim. The number of crimes committed does not depend on the number of co-conspirators. If rape was committed by 2 or more persons, what happens? o Commission of rape by two or more persons is a qualifying circumstance that requires imposition of RP/death.
o Ex. The husband raped the victim, while the wife of the accused held back the arms of the victim. HELD: The husband was guilty of rape by direct participation, and the wife was principal by indispensable cooperation. Is it possible that two persons are conspirators but are liable for different crimes? o Yes. o Ex. The private individual is liable for delivery of prisoners, while the escaped convict is liable for evasion of sentence. o Ex. X and Y killed X’s wife. Y is liable for homicide. X is liable for parricide. What is the rule for Robbery with homicide? o General rule: the act of one is act of all, even if only one co-conspirator killed the victim. o Is it possible that one is liable only for robbery but not robbery with homicide? Yes, if one desisted before the homicide was committed. For instance, one prevented the other from stabbing the victim o What about robbery with rape? All the accused will be liable for the rape committed by one of them, unless one proves that he endeavored to prevent the person from doing so.
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o For these cases, one must perform an OVERT act to prevent the commission of the other crime. Mere silence or running away is not enough disavowal. How does one become a principal by direct inducement? o 1. Directly forcing another to commit a crime Using irresistible force Causing uncontrollable fear o 2. Direct inducing another to commit a crime Giving price, reward, or promise Using words of command What are the requisites to become a PDI? o 1. Inducement made directly with intent of procuring the commission of the crime o 2. Inducement is the determining cause of the commission of the crime by material execution What is required for use of words, to become a PDI? o Must have actually moved the hands of the principal by direct participation, the latter of which has no other recourse but to obey the command. This especially applies when the PDI has moral ascendancy over the PDP. Does the PDI need to be in the scene of the crime? o No. His inducement is enough. What if the person inducing did not qualify in the above description?
o He is generally liable as an accomplice. What if the person merely made carless remarks not meant to be obeyed? o He is neither a PDI nor an accomplice. He is not criminally liable. When does one become a principal by indispensable cooperation? o Direct participation in the criminal design by another act without which the crime could not have been committed. What is the main distinction between the PDP and principal by indispensable cooperation? o For the PIC, he must perform an act different from the overt act of the PDP; otherwise, he also becomes a PDP. Must the PIC be present during the planning stage of the conspiracy? o No. He may become a principal at the moment of execution of the crime with the other principals. It can arise from implied conspiracy. What is the rule in case of doubt? o The liability of the PIC is merely as that of an accomplice. Is it possible that the PIC commits a crime different from the PDP? o Yes. An example is malversation through falsification of public documents committed by a public officer in conspiracy with a private
individual. The private individual may be liable for malversation. Can the PDP’s acts be by dolo and the PIC, by culpa? o Yes. Ex. There was a bank employee with two friends. The friends made the employee believe that a bank document was genuine, which was approved by the employee without needed diligence. The crime of the PIC is estafa through falsification of commercial document, by culpa.
Art. 18: accomplices
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What are the acts of accomplices? o Prior or simultaneous acts not indispensable for the commission of the crime, and not overt acts for commission thereof. What are the requisites to be liable as an accomplice? o 1. Offender took part in the execution of the crime by previous or simultaneous acts o 2. He intended to take part in the commission of the crime At what point must the accomplice acquire knowledge of the commission of the crime by the PDP? o After the PDP has reached a decision to commit a crime. The accomplice does not decide the commission of a crime. He just agrees after the criminal resolution is accomplished.
o If he was part of the decision to commit the crime in conspiracy, he becomes a principal. o Likewise, if he commits an act of execution, he also becomes a PDP. Contrast a conspirator from an accomplice: o Both the conspirator and accomplice know of the crime and agree with the criminal resolution. The conspirators decide, and the accomplices merely concur and cooperate. o The crime is performed by the PDP, while the accomplice is merely an instrument of the conspirators – not members of the conspiracy. May one be charged and convicted as accomplice or accessory even before principal charged or convicted? Or should the PDP first be convicted before accomplice and accessory be charged or convicted? What are their corresponding liabilities? o As long as commission of the crime can be proven beyond reasonable doubt, determination of criminal responsibility of accessory may be determined independently of and separately from liability of the PDP. o If the case against PDP is dismissed, the case against accomplice or accessory must also be dismissed because the liability of the latter is subordinate to that of the PDP. o But the dismissal of the case against the latter does not necessarily result in dismissal of the case against the PDP.
Art. 19: accessories
Who is an accessory? 61
o One must have knowledge of the commission of the felony, and he participates after the commission by any of the acts enumerated in Art. 19. His participation must not be that of a principal or accomplice. What are the requisites to become an accessory? o 1. Knowledge of the commission of the crime o 2. Without participating therein o 3. Perform any of the following acts (see below). What are the three acts of accessories in Article 19? o 1. By profiting themselves or assisting the offender to profit by the effects of the crime o 2. By concealing or destroying the body of the crime (corpus delicti), or the effects or instruments thereof, in order to prevent its discovery o 3. By harboring, concealing, or assisting in the escape of the principal, and – A. the accessory acts with abuse of public functions OR B. the accessory is a private individual, and the author of the crime is guilty of: i. treason, ii. murder, iii. parricide, iv. or attempt to take life of the Chief Executive, v. or is known to be habitually guilty of some other crime When does the accessory participate?
o His participation comes after the commission of the crime. Does mere silence make one liable for the crime as an accessory? o No. It is not a crime to remain silent. What is the “corpus delicti” or body of crime that must be concealed or destroyed under par. 2? o Body or substance of the crime, or the actual commission by someone of the particular crime charged. It is either: 1. Proof of occurrence of a certain event 2. Some person’s criminal responsiiblity X, a policeman, witnessed the killing of V by K. X failed to arrest K and even told K not to tell the other policemen. Is X an accessory? o Yes, under art. 19(3). It was the duty of the policeman to arrest the culprit and not to conceal the commission of the crime by silence or misleading statements. By his acts, he abused his public position. What is PD 1612 (Anti-Fencing Law)? o One who acquires stolen property is criminally liable as an accessory under Art. 19 or as a principal for fencing under PD 1612. Prosecution has the option. When does one become a principal for fencing – requisites? o 1. The crime of robbery or theft must be committed, and accused did not participate in the commission thereof. o 2. The accused then acquires the proceeds of the robbery or theft, and he has actual
knowledge thereof or he should have known the subject is from such acts o 3. Intent to acquire What is the special rule P.D. 532 (piracy, highway robbery and brigandage)? o Any person who directly or indirectly abets the commission of piracy or highway robbery/brigandage is not just an accessory – he is an accomplice to the principal of the crime. o The person who profits from the loot is charged with Abetting Brigandage and is charged as an accomplice (not just an accessory)
Art. 20: accessories exempt from liability
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Who are the accessories exempt from liability? o Those who are accessories vis-à-vis spouses, ascendants, descendants, legitimate/natural/adopted brothers and sisters, or relatives by affinity of the same degree o When does it not apply? To paragraph 1 (profiting from the crime) o [N.B. this listing is limited (not up to 4th degree of consanguinity) and is the same scope as the alternative circumstance of relationship] X killed Y. X told his sister S to hide the body of Y. X and S buried Y. What is the liability of S? o S is exempt under Art. 20. The basis of the exemption is ties of blood between the PDP and accessory.
o No.
What if a policeman furnishes the means for his brother to escape with abuse of public position? Is he exempt? o He is. Blood-ties are more powerful than call of duty. Moreover, the law does not distinguish between private citizens and public officers. What is PD 1829 or Obstruction of Justice? o Those who assist the principal to escape may be prosecuted under PD 1829 as a principal for obstruction of justice. When convicted, the penalty imposed is the higher penalty between PD 1829 and any other law, including the RPC. What are the acts amounting to Obstruction of Justice? o [preventing] o 1. Preventing witnesses from testifying o 2. Harboring or concealing the offender o 3. Obstruction of service of court processes/orders or disturbing proceedings in fiscal or Court o 4. Solicitation or acceptance of benefit to desist in prosecution o 5. Using threats to prevent a person from appearing in proceedings o [misleading] o 1. Altering or suppressing evidence o 2.using fictitious name to conceal crime or evade prosecution o 3. Making or presenting false evidence o 4. Giving false or misleading information to law enforcement agents Does PD 1829 provide the same exceptions as Art. 20?
PENALTIES
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Offended party and accused agreed to fight; one lost. He filed for a complaint for physical injuries. Does the pari delicto doctrine apply? o No. It does not apply to criminal cases. In fact, two people can agree to duel, and if one dies, the offender may be charged under the RPC. Does estoppel apply to criminal cases? o No. The offended party is the State. Private individual who sustained the damage is merely the witness to the crime. Can there be imprisonment at the discretion of the court? o No. It must be according to limits imposed by law. Did the SC circular giving preference to fines over imprisonment for BP 22 and libel violations amend the law? o No. There was no abolishment of the penalty of imprisonment. May the favorable provisions of RA 7659 (Abolishing the DP) retroact to entitle the offender to RP? o Yes. Penal laws retroact in so far as they favor a person guilty of a felony, as long as he is not a habitual delinquent o Even when there is already a final judgment o Does this apply even to SPLs?
Yes. What is the retroactive application of RA 9344? o Any pending cases involving children below 15 are automatically dismissed and referred to appropriate diversion programs o Those already serving sentence are reassessed/reclassified under the new benevolent features of the law o If the minor is no longer entitled to suspension of sentence (Ex. reached 18 years old) and the court resolves to impose the sentence, he can still apply for probation What if a penal law is repealed? o Then the court has no more jurisdiction to hear the case o The offense never existed and the person who committed it never did so. o Exceptions? 1. Saving clause 2. The repealing act reenacts the former statute What is the effect of RA 8353 on Articles 23 and 344 which provide for pardon by the offended party? o Rape and sexual assault are now crimes against persons. o Thus, criminal action can only be commenced by information filed by public prosecutor, and not the private offended party.
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o If a crime is public, private individual cannot pardon the crime or compromise it, unless provided by law. In a criminal action, it is the State that is the offended party; the private individual is just a witness. o Exception: RA 8353 – marriage of offender and rape victim Shall extinguish criminal action If already convicted, penalty imposed will be extinguished Note, however, that a husband can be convicted for rape or sexual assault against his wife. Criminal liability may only be extinguished by law or the grounds in Art. 89. o A public officer is charged with RA 3019. He returns the money. Will his liability be extinguished? No. It will not exonerate him from criminal liability, but will extinguish his civil liability. P v. Sandiganbayan What are not considered as penalties? o 1. Arrest and temporary detention of accused, or detention due to insanity or imbecility o 2. Commitment of a minor in institutions Art. 80 was already repealed by PD 1603 and amended by RA 9344. o 3. Preventive suspension from employment or public office
o 4. Fines and other corrective measures imposed by superior officials on subordinates Refers to administrative sanctions in administrative cases against public officers and employees (imposed by superiors) Correlate the above enumeration with RA 6975, par. 4: o If police officer or employee is charged for a crime in a valid information, he may be suspended during pendency of the case. This is not a penalty, but just a means to facilitate justice. Correlate with RA 3019: o When a public officer or employee is charged, he may be suspended 90 days. This is not deemed a penalty. What is the effect of RA 9346 abolishing the death penalty (and as clarified by P v. Bon)? o 1. It retroactively benefited all those convicted and being tried for the death penalty, which has been abolished. It benefits even habitual delinquents. o 2. It does not affect RA 7659’s provisions on how the crime is committed; it just reduces the penalty imposed by RA 7659 from death to RP. o 3. It equalized the penalties of certain offenses which used to be graduated. Examples:
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Piracy (RP) and qualified piracy (RP to death) are now both RP. Kidnapping (RP to death) and Kidnapping with Homicide or Rape (mandatory death) are now both RP. Destructive arson (RP to death) and Arson with homicide (mandatory death) are now both RP. o 4. In graduation of offenses one or two degrees lower, take out “death” from the scale as well. o 5. It did not declassify the crimes as “heinous.” Only the penalty imposed is affected. When is the duration of penalties computed from? o 1. If the offender is in prison, from finality of judgment of conviction o 2. If not in prison, from placement at disposal of judicial authorities to enforce penalty o 3. Other penalties not involving imprisonment – from day when he commences to serve the sentence When are detainees credited with the whole duration of preventive imprisonment? o 1. Full time, if the detention prisoner agrees to abide by the same disciplinary rules as convicted prisoners o 2. 4/5 time, if he does not agree to abide by the same rules o When is there no credit? 1. Recidivists
2. Those convicted at least 2 times of any crime 3. Upon summoned for execution of sentence, they failed to surrender voluntarily o What if the period of preventive imprisonment has exceeded the maximum penalty allowed? Immediately release, but continue with trial or appeal If it’s destierro, the maximum period is 30 days preventive imprisonment o What is the remedy when the person has reached the maximum penalty imposable? Habeas corpus o What if the convict is sentenced to RP or life imprisonment? He is still entitled to the benefits of this provision. What is the effect of penalty of perpetual or temporary absolute DQ? o 1. Deprivation of public office even if elected o 2. Deprivation of right to vote or right to be elected o 3. DQ for offices or public employments and for exercise of any rights mentioned o 4. Loss of all rights of retirement pay or pension for former office
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o What is the difference between perpetual and temporary? In temporary, #2 and #3 only lasts until term of sentence What is the effect of perpetual or temporary special DQ? o 1. Deprivation of office, employment, profession, or calling affected o 2. DQ for holding similar offices or employments How long does #2 it last? If perpetual, forever If temporary, during term of sentence o What about perpetual or temporary special DQ for the exercise of the right to suffrage? Deprivation of right to vote or be elected for public office (perpetual or temporary) What is the effect of penalty of suspension from public office, profession, calling, or right to suffrage? o These apply during term of sentence o And if suspended from public office, cannot hold an office with similar functions during suspension Is RP the same as life imprisonment? o No. RP has a fixed duration and accessory penalties, and is imposed by the RPC.
o Life imprisonment has no fixed duration, no accessory penalties, and is imposed by SPLs. What is the dual nature of temporary disqualification and suspension? o As principal penalty Temporary DQ: 6 years and 1 day to 12 years Suspension: 6 months and 1 day to 6 years o As accessory penalty: Follow principal penalty Can a lesser offense absorb a graver offense? o Yes. Examples are rebellion (RT) absorbing murder (RP) when committed in furtherance of the former. Forcible abduction (RT) absorbs illegal detention of a woman (RP). What is the nature of Reclusion Perpetua? o RP is an indivisible penalty. o There is no minimum, medium, or maximum period. o It is not affected by mitigating or aggravating circumstances. o So why does RA 7659 fix the duration at 20 years and 1 day to 40 years? In order to avoid a lacuna because RT caps out at 20 years. The provisions discussing RP provide that at 30 years, the offender is entitled to parole, while service of penalty is at maximum 40
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years. Thus, the period for RP has become 20 years and 1 day to 40 years. (It would be absurd to set it at 30 years to 40 years, since there will be a gap.) o What is the minimum period of imprisonment for RP? 30 years, after which the offender will be eligible for pardon by the Chief Executive. (Although there is nothing preventing the Chief Executive from pardoning the offender beforehand.) o What is the number used in pegging the “three fold rule” for RP? 30 years as well. Since that article provides that when the culprit has to serve at least 2 penalties, the maximum duration of the sentence should not be more than 3-fold the length of time corresponding to the most severe penalty. What are the indivisible penalties? o 1. RP o 2. Perpetual absolute or special DQ o 3. Public censure What are the effects of indivisible penalties? o Impose the penalty in its entirety Even if there is a special aggravating or two mitigating, it will not be affected.
o BUT if there is privileged mitigating circumstance, it may be reduced by 1 or 2 degrees. Exceptional situations: o P.D. 818 Syndicated Estafa: Maximum of crime is 30 years, which in connection with the accessory penalties shall be 30 years of RP o People v. Canales – imposed 40 years of RP, with accessory penalties pertaining to death, and cannot be pardoned until after 40 years have passed. How did the court reach this decision? Because under Art. 309 of the RPC, theft is punishable by maximum of RT. But for Art. 310, qualified theft, penalty is two degrees higher. This is death. But the rule under Art. 74 is that if the next higher penalty is death, it becomes RP, with accessory penalties of death. This is also the reason why he cannot be pardoned before 40 years have lapsed, instead of 30. N.B. Note, however, that Boado believes that there is no more such
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distinction now that the DP has been abolished. When a penalty of fine is imposed, what is the order of payment of pecuniary liabilities? o Read in conjunction with Art. 38 (order of payment of pecuniary liabilities): 1. Reparation, 2. Indemnification, 3. Fine, 4. Cost of proceedings o To whom is the fine given? Not given to the complainant; it is given to the State. o Can accused use its cash bail bond to pay his fine, if convicted? Yes. The law does not prohibit him from using his cash bail bond to pay his fine. It is only meant to ensure his attendance during the process. Conflict of provisions leading to confusing rulings, if the fine is exactly 200 pesos: o In Article 9, P200 is a light penalty. In Article 26, P200 it is a correctional penalty. o To harmonize: When the issue is prescription of crime, apply Art. 9. When the issue is prescription of penalty, apply Art. 26.
o Deprivation of the following rights – 1. Parental authority 2. Guardian as to person/property of ward 3. Martial authority 4. Management of property 5. Disposition of property by acts inter vivos So he can still make a last will and testament o Cannot appoint an agent to fulfill these tasks
What is preventive imprisonment for children in conflict with the law under RA 9344, sec. 53? o Any form of physical restraint imposed on a child in conflict with the law including his community service or commitment to a rehabilitation center shall be considered as preventive imprisonment. o If the minor juvenile is imprisoned pending trial – he shall be credited with the service of the sentence with the full time in which the child was preventively imprisoned Provided the child agrees with the rules and regulations of the penal institution If not, still entitled to 4/5ths of the time Under Art. 104 of the RPC, the offender is civilly liable to the offended party for restitution, damage, reparation, and indemnification for consequential damages. The liability of the accused (under Art. 104) covers civil liabilities or pecuniary liabilities. How about the penalty of fine under Art. 38 of the RPC in relation to Art. 39? o It is also a pecuniary liability of the accused, but it is a pecuniary penalty (and not a pecuniary liability), because it is a penalty under Art. 25 of the RPC. o So it is still covered by the order of payment. What is civil interdiction and what rights does it cover? o Accessory penalty that attaches to RP and RT.
Art. 39: subsidiary imprisonment
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When is subsidiary imprisonment imposed? o Subsidiary imprisonment can only be imposed if the accused is penalized with a fine (either alone or in conjunction with imprisonment), and because of insolvency, he cannot pay the fine. How long is the subsidiary imprisonment? o If penalty is PC/arresto + fine – confined until the fine is satisfied under the conversion Whichever is the least among: 1. 1/3 of his sentence term 2. 1 year 3. Quotient of fine divided by 8 pesos o If penalty is just a fine –
Subsidiary imprisonment must not exceed 6 months for grave or less grave felonies Must not exceed 15 days for light felonies o If penalty is higher than PC, no subsidiary imprisonment Can the convict be ordered to serve subsidiary imprisonment for failure to pay pecuniary liabilities? o No. The convict cannot be ordered to serve subsidiary imprisonment for failure to pay pecuniary LIABILITY; but he can serve for pecuniary PENALTY. If he is not insolvent, but he does not want to pay the fine, can he choose to go to jail instead? o No. The accused has no choice but to pay the fine. Will subsidiary imprisonment apply for SPLs? o Yes. If the accused was convicted of a crime defined by SPL, Art. 39 will still apply, taking into account Art. 10 of the RPC. Ex: Violation of BP 22 Supposing he was convicted for possession of unlicensed firearm and sentenced to prison term but he was insolvent. Subsidiary imprisonment? o Yes. Again, Article 39 is consistent with Art. 10.
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Must there be an express statement in the dispositive portion imposing subsidiary imprisonment? o Yes. Subsidiary imprisonment is a penalty. There must be a statement in the dispositive portion that if he is insolvent, he must serve subsidiary imprisonment. Absent this specific order in the dispositive portion, he cannot be compelled to serve this. (Ramos v. Judge) What is the financial standing of the culprit improves? o He has to pay. Subsidiary personal liability does not relieve him from the obligation to pay the fine in case his financial standing improves. When can there be no subsidiary imprisonment? o If the penalty is higher than prision correccional, there can be no subsidiary imprisonment. Toledo v. Superintendent, citing Bagtas v. Director of Prisons, supposing the accused is charged with 2 or more offenses and there was 1 decision that convicted him of all the charges. How do we determine the 6-year limit? o Where this situation exists, the 6 year period limit shall be based on the total duration of the penalties imposed by the court based, after the joint trial, on the 3-fold rule under Art. 70 of the RPC. If the totality of the penalties exceed 6 years, no subsidiary imprisonment shall not be
imposed, even if the penalty for each of the crimes is less than 6 years. What are the accessory penalties? o RP and RT: Civil interdiction for life or during period of sentence as the case may be Perpetual absolute DQ o PM: Temporary absolute DQ Perpetual absolute DQ from right to suffrage o PC: Suspension from public office Suspension from right to follow profession or calling Perpetual special DQ from right to suffrage If imprisonment exceeds 18 months o AM, Am: Suspension from office Suspension of right to suffrage during term of sentence
Art. 45: forfeiture of the proceeds of the crime
Who has the power to order forfeiture of the proceeds of the crime and the instruments or tools used in the crime?
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o Only the trial court which rendered conviction of the accused may order this. o But before the court may do so, the tools or instruments must be presented to the court as evidence. Otherwise, the court has no jurisdiction to order the forfeiture or destruction of such. o In case of bribery, the money used may be forfeited in favor of the state. What if the tool or instrument belongs to some other person? o The tool or instrument MUST belong to the accused himself. If it belongs to some other person and he has no involvement in the crime, there can be no such declaration. Does this provision apply to SPLs? o Yes. When may the court order destruction of the items? o If the items are contraband. What is the rule under the Dangerous Drugs Act? o Those subject of the crime, including proceeds derived from drug trafficking, and even money and assets acquired in violation of RA 9165 – deemed and ordered forfeited in favor of the government, unless belonging to third persons without involvement of the crime. o Exception to third person rule: if the items are beyond lawful commerce – still forfeited
o Under Sec. 20 of the same law, the proceeds of the sale or disposition of the property forfeited must be used to pay the expenses incurred in the proceedings including cost of the proceedings
Art. 48: complex crimes
When is there a complex crime? o Material Plurality – when a single act constitutes two or more grave or less grave offenses (delito compuesto – composite crime), or when an offense is a necessary means to commit the other (delito complejo – complex crime proper) What is the effect on the penalty? o There is only one penalty, although there are multiple crimes o The more serious crime’s penalty is imposed in maximum period
Delito compuesto (first mode)
When is there delito compuesto? o Either dolo or culpa Ex.: person was convicted for reckless imprudence resulting into homicide and destruction of property o The felonies resulting from the single act must be felonies in the RPC o If punishable under the RPC and an SPL, Art. 48 will not apply. The offender may be
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charged and convicted for both crimes, separately without double jeopardy. Ex. Estafa and illegal recruitment Ex. Estafa and BP 22 Can Art. 48 apply if the constituent acts are less grave felony and light felony? o No, light offenses are not included (see excerpt). If under Art. 48, the maximum of the graver penalty is imposed, is it a special aggravating circumstance? o No. What if the accused is entitled to a generic mitigating circumstance, will it offset? o No, unless it is a privileged mitigating circumstance. Supposing one wants to kill another with treachery, but there was abberatio ictus? o Then the crime committed by the accused is a COMPLEX CRIME. o Attempted murder + murder The accused stabbed the victim with a bolo, and the bolo hit both the person and the person behind him. The target died. What is the crime? o Complex crime of murder and SPI. o (Note that as to the second person, it was just SPI because there was no intent to kill him.)
The accused forcibly insert his penis into the vagina of the woman and she sustained Less SPI in her vagina. What is the crime? o Complex crime of rape with LSPI The accused stabbed his wife to death, and she was 6 months pregnant at the time. What is the crime? o Complex crime of parricide with unintentional abortion. What is required for delito compuesto? o The law is clear: a single act. But the SC sometimes applied the single impulse test or the single criminal intent test. o Gamboa v. P, cited in P. v. Judge Pineda: there must be singularity of the criminal act, not singularity of the criminal impulse. Because singularity of criminal purpose is NOT written in Art. 48. The SC applied single impulse test for the first time: o X stole on the same occasion 13 cows. SC held: one crime of theft even if there were 13 cows, applying single impulse test. o Y took two roosters on one occasion. SC held: one crime of theft because it was in response to one criminal impulse. In crimes against chastity, the SC adopted another test: single criminal intent: o X raped his niece at 10 am, and then again at 11 am at same grassy area. One crime of rape,
o
o
o
o
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even though committed in intervals of one hour, because he was motivated by a single criminal intent. Y inserted private organ and raped the victim, but he was not content; he also inserted his finger at the same place and at the same occasion. The accused is guilty of one count of rape and 2 counts of sexual assault: same place, same occasion. Z inserted his penis into the vagina of the victim and made several push and pull movements but without removing his organ, until he reached orgasm. Only one crime of rape, because he reached orgasm only once then he removed it. W raped his niece once a day and inserted his finger once a day, for 16 successive days in different locations. Guilty of as many crimes of rape and sexual assault equal to how many times he inserted his organ and finger. Reasoning: there could not be a single criminal intent because each time he committed the crime, was on different days – the accused was animated by separate criminal intents on each occasion. V raped the victim for first time is the pig pen, about 8 meters from the house. Then brought her to the room and raped her again. Then
brought victim room of cousin, and raped again. Brought her to kitchen, where he raped her again. There were separate criminal intents because he raped the victim in different places although the rapes were done successively. o What is the test then? The “place test” NOTE, however: P v. Escoton: Convicted person for 5 counts of rape even if it was in the same place, and at the same night. Be forewarned that this might be the new rule now (2010 decision). What test will be applied for kidnapping? Single impulse or single intent? o Even if the persons were kidnapped on the same occasion and place, there were as many crimes of kidnapping as there were persons. o Kidnapping with homicide, K with murder, K with rape are all special complex crimes, and not complex crimes under Art. 48 of the RPC. Even if the homicide or rape is a mere afterthought, this would be the crime. o If the victim of kidnapping got raped, how many crimes of special complex crime of kidnapping and rape?
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There are as many times of crimes of kidnapping and rape as the number of persons kidnapped and raped. o What is the test then? “Number of persons” Will you apply the single criminal intent or resolution test in mala prohibita? o No. Lim v. P: X issued 3 bouncing checks on the same occasion. There are as many violations of BP 22 as there were many checks. The criminal intent or resolution test does not apply because it is mala prohibita. What about falsification of documents? Must one apply the single criminal intent or resolution test? o X convicted of only one complex crime of estafa through falsification of three postal money orders which she cashed in on the same day. Since it was the same occasion, the acts were considered as only one act of estafa through falsification of commercial document. o Y falsified three money orders separately. Here, each act constitutes a separate crime, because Y was animated by separate impulses, in falsifying each voucher. o Z, an employee of the SC, falsified the roll of attorneys. Included 3 names. HELD: As many crimes of falsification as there are many persons.
o X antedates a public document, forges the signatures therein, and changes its content. Is he guilty for three counts of falsification of the document? No. There was only one crime of falsification of public document, although there were multiple modes of falsification committed. o Gamboa v. CA: There was no single impulse, intent, or resolution test mentioned in Art. 48. It mentions “a single act.” o Compare to Ilagan v. CA: X is a real estate agent who fraudulently collected from lot buyers, but instead of turning over the proceeds to the corporation, he kept them. How many crimes of estafa did he commit? As far as the lot buyers were concerned, there were as many crimes of estafa as the number of times the petitioner fraudulently collected from the victims. As far as the corporation is concerned, it depends on obligation to account. If he is obliged to account everyday and he fails to do so, there are as many crimes of estafa as the number of days he failed to account. If he is obliged to account every month, he is guilty for every month he fails to account. What is the rule for libel?
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o Even if two or more persons were subject to libel, if there was only one publication, there is only one crime of libel. What is the rule for adultery? Is is a “delito continuado” (continuing crime)? o Adultery is not a delito continuado. Each sexual act is an offense. Adultery is consummated and exhausted at the time of carnal union. Crimes against persons: o X and Y, constabulary officers, killed around 50 people with guns. What is the crime? Convicted of complex crime of multiple murder under Art. 48(1), applying single impulse test. N.B. the court just resorted to this because they couldn’t tell who killed who. o There were several killings inside Bilibid prison. What was the crime? Decision by J. Aquino: Multiple counts of murder and multiple counts of attempted and frustrated murder. Again, the SC applied single criminal impulse test. Dissent by J. Makasiar: Read Art. 48 – single act. It doesn’t say single criminal impulse.
On an MR: J. Aquino reneged, considering J. Makasiar. If it is prisoners, apply Art. 48. If NOT prisoners, then separate crimes. This is really strange. o But what MUST be the rule, according to P v. Pineda? DO NOT APPLY SINGLE IMPULSE TEST. Just read Art. 48: it requires a single act. o Several accused had automatic, high powered guns and killed several people. When they pulled the trigger, several bullets shot out. What was the crime? Complex crime of multiple murder and multiple attempted murder. Although several independent acts were done, it was not possible to determine who among them killed how many victims. The accused showed a single criminal impulse based on the statement “my gosh, di natin napatay lahat.” The SC also used conspiracy as basis. o But see P v. Dalmacio: Armalite guns fired successively, and explosives, killed several and seriously wounded others. The accused were guilty for as many crimes as how many people were injured. Malversation:
o There may be a complex crime of malversation through falsification of official documents – a crime being done to commit another crime. Can you apply Art. 48 to plunder? o No. Plunder is unique. One cannot apply Art. 48. Although there maybe some predicate crimes, only ONE CRIME is committed. Article 48 does not apply to special complex crimes: o Ex. robbery with homicide, robbery with rape, robbery with intentional mutilation o Ex. kidnapping with murder, kidnapping with rape, kidnapping with homicide
Delito complejo (second mode)
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When is there delito complejo? o One felony is the necessary means to facilitate or ensure the commission of another felony. If one felony is indispensable to the commission of another, then Art. 48 DOES NOT apply; there is only one crime. o Bottom line: Must be necessary but NOT indispensable. Is it possible that one is delictual and the other is culpable felony? o Yes. o Ex. Cashed check on behalf of an impostor. The employee of the bank did not bother to check, since they are friends.
o Due to the employee’s failure to ascertain identity of payee, there was Estafa through falsification by culpa. The latter was the means to commit the former. o Why can a public document be falsified through culpa? Because for official or mercantile documents, there is no need to prove that there is intent to cause damage. The intent to cause damage is only required for private document. Therefore, there is no falsification through culpa for private documents. What about forcible abduction with rape: related with Art. 342 and rape/sexual assault (Art. 366-A)? o Take into account absorption of felonies. If the intention was to rape, and the victim was brought to a place in light of rape, then there is rape only – abduction is absorbed by rape. o But there may be a complex crime of forcible abduction with rape. What are these cases where it not absorbed and when it is absorbed? Ex. Victim abducted and brought to grassy area near her house, where she was raped. Abduction was absorbed since it was near her house.
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Ex. Brought to place 600m from her house, where she was raped. Abduction was STILL absorbed by rape. Ex.: Abducted to place 100m from her house – forcible abduction with rape. What is determinative? SPECIFIC INTENTION OF OFFENDER AND NOT THE DISTANCE o What if there was abduction, and then there were three rapes done after? The moment the first rape was committed, then forcible abduction with rape was consummated. So the second and third rapes were SEPARATE crimes. There is one complex crime, two separate simple crimes. (This is en banc decision.) But there are some commentators that say that the subsequent rapes must be absorbed since abduction is a continuing crime. If the accused abducted two women at the same time, and then raped both? o Guilty of TWO counts of forcible abduction with rape. Can robbery with force upon things be taken together with robbery with violence against persons as a complex crime?
o Yes. The former can be a means to commit the latter. When does delito complejo not apply? o 1. Indispensable to the second crime o 2. Essential element or mode of committing another felony o 3. Merged with another crime o 4. Felony is committed to conceal another crime A company officer falsified two private documents to make it appear that there were two extra employees, even if she really just kept the wages for herself. Can one apply Art. 48(2) for estafa through falsification of private document? o No. There can be no complex crime of estafa through falsification of a private document, because the latter must have 1. Intent to cause damage, and 2. Damage caused. For estafa, the same elements must apply. The moment the falsification was established by intent to cause damage, the same element CAN NO LONGER BE USED to establish estafa. o The crime instead is falsification of private document. If the estafa can be committed without the falsification, the proper charge is estafa. Art. 48 does not apply. o If it is falsification of public or mercantile document, can there be complex crime of
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estafa through falsification of public document? Yes. Is coup d’etat a political crime? o Yes. o Political crimes are those directly aimed against the political order. Any common crime committed in furtherance of a political crime is absorbed. o The common crimes are absorbed because they are necessary to achieve the political purpose. o What about illegal possession of firearms? Yes, it is absorbed. See RA 8294. Art. 48 is for the benefit of the offender, under the pro reo principle. How so? o Because even if there are two crimes committed, the law only punishes the offender for one, although it is in the maximum period. In the eyes of the law, the two crimes stem from a single criminal intent – this is less perverse in the eyes of the law compared to punishing him for two crimes. o Does this apply to the second part of Article 48? Yes, because the first act was only a means done to commit the second crime. There is still one criminal resolution.
o How did the SC reason this out in P v. Hernandez? Absorption in political crimes. Read the dissent of J. Montemayor. He said that pro reo should not apply to the second paragraph because he committed two crimes, unlike in the first paragraph. The majority rejected this by pointing out that both means were included in the same provision. If the treatment for the second paragraph must be different, then it should have been placed in a different provision. How do you define grave and less grave offense? o Grave: afflictive or capital o Less grave: corrective Does 48 apply if one crime is under RPC and one is SPL? o No. It mentioned “felonies.” o So punish them separately. Ex. violated estafa and BP 22. If one is under RPC and ordinance? o No. Punished under both the RPC and the ordinance violated. Can there be a complex crime of arson and homicide? o No. It’s either only simple arson or simple homicide. NEVER complex. Look at intent.
What is the penalty for a complex crime? o Penalty for the more serious crime, applied in its maximum period.
Art. 49: penalty for error in personae
To which situation does Article 49 apply to? o Only error in personae. o N.B. aberratio ictus and praeter intentionem both attract the application of Article 48 instead. What is the penalty for praeter intentionem? o 1. If the penalty for the felony actually committed is higher than that which he originally intended, the penalty of the latter in its maximum period. o 2. If the penalty for the felony actually committed is lower than that which he originally intended, the penalty of the former in its maximum period. o 3. If the act actually committed is an attempt or frustration of another crime which has a higher penalty if consummated, the penalty of the attempt or frustration in its maximum period.
Application of penalties
What are the rules in reduction of the penalties provided under law? o Consult the following table: Consummated Frustrated
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Attempted
Principal
As provided
-1
-2
Accomplice
-1
-2
-3
Accessory
-2
-3
-4
What are the rules on reduction of penalties? o 1. Single and indivisible penalty next lower penalty Ex. RP RT o 2. Penalty is two indivisible penalties or one or more divisible penalties imposed to their full extent penalty next lower in degree as to the lower divisible penalty Ex. PM to RT PC o 3. Penalty is one/two indivisible penalty and maximum period of another divisible penalty medium and minimum periods of the proper divisible penalty and the maximum period of the next lower Ex. RT in maximum to Death PM in maximum to RT in medium o 4. Several periods corresponding to different divisible penalties period following the minimum prescribed and the two next following Ex. PM in medium to RT in minimum PC in medium to PM in minimum What are the rules on MCs and ACs? o 1. If the AC is taking advantage of public position:
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Impose penalty in its maximum regardless of MCs o 2. If the crime was committed by a person belonging to an organized or syndicated crime group (group of 2 or more persons collaborating, confederating, or mutually helping each other for purposes of gain in commission of crime there must be an organized group, and not just a conspiracy): Impose penalty in its maximum as well regardless of MCs o 3. ACs and MCs which arise from moral attributes of offender, private relations with offended party, or other personal causes: Will only aggravate or mitigate liability of those to whom the circumstances apply to o 4. ACs and MCs which consist in the material execution/means to accomplish the act Will only aggravate or mitigate liability of those had knowledge of them at the time of execution or cooperation Why are abuse of public position and crime by syndicate/organized crime group special ACs? o It cannot be offset by generic mitigating circumstances What is the rule for habitual delinquents? o 3rd conviction:
o 3. AC only: Maximum period o 4. Some of both: Offset, then apply the above 3 rules o 5. Two or more MC with no AC: Lower the penalty one degree, but always in the proper period What if there are 2 or more MCs, but there is at least one AC? No lowering by degree. What if there are 2 or more ACs? No increasing by degree. There can only be reduction by degree, not increase by degree. Ex. if there are four mitigating circumstances, once you use two to lower the penalty by one degree, the other two are not taken into account. What if the accused is sentenced to reclusion perpetua, has two generic MC, and no AC. Can it be lowered by one degree? No. No matter how many MCs there are, RP cannot be reduced by degrees (except privileged MCs) o To which crime do these rules not apply to, and what applies instead?
Penalty for last crime + PC in medium and maximum periods th o 4 conviction: Penalty for last crime + PM in minimum and medium th o 5 conviction or oftener: Penalty for last crime + PM in maximum to RT in minimum o What is the maximum period imposable for habitual delinquents? Cannot exceed 30 years, in any case What is the penalty for impossible crimes? o Arresto mayor or fine of 200-500 o There is some commentary that the penalty for impossible crime does not apply for light penalties (or else, the penalty for the impossible crime would be greater than the crime itself) What is the rule for single indivisible penalties (now, only RP)? o Apply it in full, regardless of MCs or ACs. o What is the exception? Privileged MCs. What are the rules applicable for MCs and ACs when the penalty is divisible? o 1. No AC, no MC: Medium period o 2. MC only: Minimum period 81
To quasi-offenses under Art. 365. Instead, the court will apply its sound discretion for modifying circumstances instead of these rules. What to make of Art. 67 which applies to incomplete exempting circumstance of accident? o Article 67 is inoperative. Apply Art. 365 instead, because incomplete accident is a quasi-offense. When do the regular provisions on calculation of penalty not apply? o For the privileged mitigating circumstance in Art. 68 of minority (if 15-18 and acted with discernment). o But what if the minor commits a SPL, which does not follow nomenclature of RPC? The minor is not entitled to privileged MC. Ex. Life imprisonment in Illegal Recruitment What is the rule for incomplete justifying or exempting circumstances? o See discussion above when to reduce it by one or two degrees. Take note that this is a privileged MC and cannot be offset by ACs.
Penalty of fine
What two factors are considered by the court in imposing fines within a range? 82
o 1. Presence of MCs or ACs. o 2. Wealth or means of the culprit. What are the scenarios? o Either the law imposes a penalty of fine o OR penalty of fine AND imprisonment o OR penalty of fine or imprisonment For example, what If the law provides for a penalty of fine of not less than 50K to 100K, what can the court impose? o The court has discretion to impose a fine within these bounds Will you apply the ISL by analogy? o No. It does not apply here. If the law specifies penalty of fine OR penalty of imprisonment (Ex. BP 22), can the court impose a similar alternative penalty? o No. The court must make a definite choice. What are the rules in the increase or decrease in the degree of the fine? o Increase or reduce (as the case may be), the maximum by 1/4th of the maximum amount. But never change the minimum. o Ex. 50K to 100K, and there is an AC, then it can be 50K to 125K (1/4 of 100K), or 50K to 75K. Can the judge impose a fine as a substitute penalty to imprisonment?
o No. Fine cannot be used as substitute penalty to imprisonment. Penalty of fine is independent from penalty of imprisonment. Accused drew and issued a check to pay for an obligation, but it bounced. He was charged for BP 22. During trial, accused paid the value of the check. So there was no more damage to the complainant, but the case was already pending. May the accused be convicted for a fine still? o Yes. Penalty of fine does not go to the offended party but the State. What if the penalty is death? o Reduced to RP with no parole. What is the rule on successive service of sentences? o 1. If they can be served simultaneously, then do so. o 2. Otherwise: Follow respective order of severity, serve them successively What is the order of severity? D, RP, RT, PM, PC, AM, Am, destierro, perpetual absolute DQ, temporary absolute DQ, suspension, public censure o What is the 3-fold rule? Maximum duration of the sentence cannot be more than 3-times the length of time of the most severe penalty.
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For RP, treat its duration as 30 years, in calculating the three-fold rule. o What is the maximum period for sentences? Always 40 years. Do not include subsidiary imprisonment penalty in the computation of 40 years. What are the penalties that can be served simultaneously with penalty of imprisonment? o 1. Perpetual absolute DQ o 2. Perpetual special DQ o 3. Temporary absolute DQ o 4. Temporary special DQ o 5. Suspension o 6. Public censure o 7. Fine o 8. Bond to keep the peace o 9. Civil interdiction Can destierro be imposed as the same time as imprisonment? o No. Imprisonment must be served by the convict successively, following the order of their severity, as provided for by Art. 71 o 2nd sentence does not commence until after the first expires. What is the rule on execution of penalties? o No penalty executed except by virtue of final judgment
When can public censure not be imposed? o If the person is acquitted, cannot anymore be subjected to public censure. Judge sentenced accused to 25 years RP; can he be compelled to serve sentence? o No. There is no such sentence as 25 years of RP; just RP (indivisible). o Remedy: writ of habeas corpus. What if the convict becomes insane or an imbecile? o Suspend service of sentence and sent to hospital for necessary treatment o But the civil liability should still be enforced in spite of insanity or imbecility of the person. What is the nature of destierro? o Not permitted to enter the places mentioned in the sentence and within radius specified – which shall be from 25-250 KM from the place specified.
Civil liabilities
A minor is exempt from criminal liability. Can the minor be held civilly liable? o No. The minor is also exempt from civil liability. The parents/guardians are civilly liable. o Relate with Art. 221 in Family Code: Parents/guardians with parental authority are civilly liable for the injuries 84
and damages caused by the acts/omissions of minors living in their company and under their parental authority Subject to proper defenses under law Does a complex crime under Art. 48 automatically mean there is only one civil liability? o No. There are still as many civil liabilities as crimes, because Art.48 is strictly a pro reo provision in criminal law and does not extend to civil liabilities. Is the adopter civilly liable for the damage caused by the adopted minor? o Yes. What are the requirements for the employer to be civilly liable for damage caused by their employees? o The employee has to be insolvent. Is a teacher liable for student’s acts? o Only when engaged in industry. Mere consulting doctors in a hospital negligently left gauze in the stomach of a person they operated on. Is the hospital liable? o Respondeat superior because there was control exerted by the hospital o Are these consultants deemed employees? Yes. Because employer-employee relationship is not determined by the nomenclature of the relationship.
o For medical negligence cases, an employeremployee relationship exists between hospitals and their attending physicians, including medical consultants. Ratio: The performance of these doctors is evaluated by a peer review board based on feedback from patients and mortality statistics. The private hospitals can hire/fire/exercise control over the consultants. The hospital is owned by a private corporation. Is the private corporation civilly liable for the negligence of the consultant-doctors? o If a hospital is owned by a private corporation, such corporation may be held liable on the basis of corporate negligence or corporate responsibility. As the owner of the hospital, the private corporation is duty-bound to see to it that the hospital meets the needs of the patients, including close supervision over medical staff, including consultants. When can the employer be exempted from subsidiary liability, or have it lessened? o If there is collusion between employee and private complainant, ex. the claim is inflated, in order for the employer to have more liability. In order for employer to be liable, what proof is needed?
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o There must be proof that the employee is insolvent. This is proven through returns of the sheriff. o Can the employer challenge the sheriff’s returns? Yes. o At what stage of the proceedings can the employer do this? Upon the submission of the sheriff’s return. If the employee is convicted based on reasonable doubt, is there civil liability for the employer? o Yes. The only time there is no civil liability is when the court holds that the accused did not commit the acts on which the charge was based on. What is the rule on registered vehicles? o Regardless of who the actual owner of the motor vehicle might be, the registered owner is the operator of the same with respect to the public or third persons. The owner on record is the employer of the driver; the actual operator and owner are mere agents of the registered owner of the vehicle. o The registered owner is subsidarily liable (not the lessee), but the registered owner can recover from the lessee. When are civil liabilities applicable?
o Whether the offense is punishable by law or not. (Because it can be based on contracts or quasi-delicts). There may be victimless crimes or crimes with victims. What is the rule for civil liabilities arising from criminal offenses? o The moment the criminal action is instituted, the civil action is instituted along with it. Can there be civil penalties for crimes defined by SPL? o Yes; however, there must be evidence that a party, including the government, sustained substantial injury so that the accused may be civilly liable. If a crime is absorbed by another crime, can there be civil liability in the absorbed crime, juridically speaking? o Yes. Ex. for political crimes like rebellion, sedition, etc. there can be murder or rape. These are absorbed by the political crime; nevertheless, there is civil liability for these acts. Ex. there is criminal liability for homicide, even if absorbed by arson. X issued a post-dated check in payment of a current obligation. It bounced. How many crimes? o Two: BP 22 and estafa.
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o Will X have to pay twice for the value of the check, considering there is only one check? No. Even if there were two crimes, there was only one check, thus there should only be one payment of the check. What is restitution, and what are its rules? o Must return the thing itself if possible, with allowance for deterioration or diminution of value o What if a third person acquired a property that was subject of crime? Offended party can still recover the item from that person But the buyer in GF is entitled to reimbursement from thief or criminal. If the stolen property cannot be returned anymore, what is the remedy? o Value of the thing taken. o When do you determine value? At time of commission of crime or upon order of return? Rationale is to bring back the situation to before the crime was committed. Value of the property in the commission of the crime must be the basis. What is reparation?
o The court must determine the amount of damage, taking into consideration the price of the thing, if possible, and special sentimental value to the injured party. What other liabilities aside from restitution and reparation? o Under NCC, for one to be able to recover actual damages, he must be able to prove by documentary evidence the actual damages sustained by him o If he cannot prove actual value of actual damages, what must one prove to be entitled to temperate damages? Claimant need not prove actual amount, as long as there is proof that there is loss. Court may grant temperate damages, as long as reasonable. P v. Billaber: In a charge for illegal recruitment, the money paid by the applicant (placement fee, etc.), o 12% interest on the return of the amount paid from time of filing of the case until the amount has been paid. Palana v. P: The petition was convicted for BP 22. Ordered to pay to offended party the amount of check with interest (6%) from filing of information until the finality of the decision + 12% per annum from finality of decision until the amount was paid. What are the rules for actual damages?
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o 1. For crimes and quasi-delicts liable for all natural and probable consequences of the act or omission o 2. Liability may be increased or decreased depending on aggravating or mitigating circumstances o What damages may be recovered? Actual or compensatory, moral, exemplary, temperate, nominal, etc. Reparation, restitution, indemnification for consequential damages Not only actually value lost, but also lost profits. Under what circumstances can moral damages be recovered? o 1. Crimes leading to physical injuries Includes death o 2. Quasi-delicts o 3. Seduction, abduction, rape, or other lascivious acts o 4. Adultery or concubinage o 5. Illegal or arbitrary detention, arrest, or search o 6. Libel, slander, or defamation When are exemplary damages imposed? o When a crime has one or more ACs, exemplary damages may be imposed In criminal law, an AC not alleged in the information cannot be considered. Does the
same rule apply for ACs, which can be the basis of exemplary damages under the NCC? o No. The word “aggravating” in NCC should be applied in its generic sense since it does not distinguish. Includes specific aggravating, qualifying circumstances, etc. These are distinct and separate from penalty of fine in the RPC. o Even if not alleged in the complaint or information, if proven = can lead to exemplary damages. The rule is under the NCC and not the RPC, after all. o Ex. Even if treachery is a qualifying circumstance under AR 248, it can be treated as a generic aggravating circumstance for the purpose of imposing exemplary damages o May exemplary damages be awarded in arson? Yes. “It is an anti-social act.” o Can relationship be the basis to grant exemplary damages? Yes. Relationship may be a basis for granting exemplary damages even if it is an inherent element of the crime (ex. parricide). When are temperate damages recoverable? o The heirs of a deceased in homicide, murder, parricide are entitled to actual damages, as proved by requisite documentary evidence. If
the actual damages are not proved, the court may prove temperate damages. Check Annex 1 for detailed numbers on civil liabilities MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY Extinction of criminal liability
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How is criminal liability extinguished? o 1. Death of the convict as to personal penalties For pecuniary penalties, if death of the offender occurs before final judgment o 2. Service of the sentence o 3. Amnesty o 4. Absolute pardon o 5. Prescription of the crime o 6. Prescription of the penalty o 7. Marriage of offended party as provided in Article 344 of the RPC When does death extinguish the civil liability of the accused and when does it not? o When the civil liability arises from the criminal act. Civil liability of accused extinguished by death includes duty to restitute the proceeds of the crime. o But civil liability predicated on a source other than the delict survives. In this case, it can be executed against the estate. Contrast absolute pardon from amnesty:
o Pardon: does not look back; looks to the future and is not retrospective If he is pardoned and commits a crime of the same title, he is still a recidivist o Amnesty: everything is extinguished o Pardon is a private act of the President and must be proved by the accused, unlike amnesty, where the court can take judicial notice because it is a public act with the concurrence of Congress. o Effects on right to suffrage and right to hold public office: Absolute pardon granted by President restores civil rights, but for these two specific rights (suffrage and holding public office), it must be specifically granted by the pardon What is the rule on pardon under Art. 344? o The offended party may grant pardon to both offenders, in the crime of concubinage and adultery. o Offended party may pardon before institution of criminal complaint. o If there is conviction by final judgment, the President may grant PARDON EVEN IF it is a private crime. When does marriage become a condonation? o Under 8353, the marriage between offender and offended party in rape or sexual assault
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will extinguish criminal liability and the penalty already imposed. o So even if the marriage happened during service of sentence, the penalty already imposed is extinguished. o Supposing there are 3 accused: principal by direct participation, principal by indispensable cooperation, and an accomplice – if there is marriage between principal by direct participation, does this extinguish liability for the other accused? Yes, they are benefited. This was the intent of the Senate when they removed the original proviso stating that the coprincipal, accomplice, and accessory do not benefit (through Sen. Enrile’s statement). Suppose an accused made perjurious statements in a petition for naturalization. He was found out. He decided to withdraw the petition for naturalization. Does this extinguish liability? o No. This extinguishes merely the application but not the liability for a crime already committed What is the amnesty period rule under BP 22? o For BP 22, when a check was issued, there were no funds. But when presented, there already were funds No liability in this case.
o If there were still no funds when presented, there is “amnesty period” for 5 days to pay. If paid No liability. Prescription of crimes
When do crimes prescribe? o Death, RP, RT 20 years o PM, other afflictive penalties 15 years o Correctional penalties 10 years o AM 5 years o Light offenses 2 months o Libel and similar offenses 1 year o Oral defamation, slander by deed 6 months o N.B. Remember 20y-10y-2m as the usual rule; then remember that the two “mayors” are 5y less than their brethren. Remember, finally, that libel and slander are 1 year and 6 months, respectively. If the penalty imposed on the convict is a compound one, what is the basis for prescription? o The highest penalty. What is the nature of destierro? o Destierro is correctional: prescribes in 10 years What should be considered to determine whether the crime has prescribed or not? o 1. Period of the offense charged o 2. Period when it begins to run o 3. Period when it is interrupted
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Act 3326: the law defining how to compute prescription for crimes under SPL o But there are SPLs that themselves provide for manner of computing prescription o Ex. OEC 5 years What is the rule under Act 3326? o Prescriptive period: from when it is known to the offended party or to the State or agents o If not known when committed, when discovered by the offended party or the State or its agents What do you mean by offended party? o Private party or government or its agents When does the period start running? o When crime is discovered by the offended party, authorities, their agents When is the period interrupted? o 1. Counted when complaint filed for preliminary investigation with public prosecutor or the OMB. What if it’s a crime punishable under Summary Procedure? When it is filed directly with the court Or when it is filed with the prosecutor o 2. Offender is outside the Philippines – this does not contemplate very brief trips abroad When does the period resume?
o 1. When proceedings terminate without the accused being convicted or acquitted o 2. When proceedings are unjustifiably stopped for reasons not imputable to the accused How about continuing crime? When does period being to run? o Prescriptive period runs after the occurrence of the LAST act. Supposing a document is executed (ex. REM) and it is falsified. When does the period run? o For documents required to be filed with the Reg. of Deeds, period begins to run upon filing with the ROD. But what is the rule for marriage? o Prescriptive period should begin to run from when State or agents or offended party acquired actual knowledge of the second marriage. Unlike property registration, registration of marriage is not constructive knowledge of marriage.
Indeterminate Sentence Law
Prescription of penalties
o N.B. This differs from prescription of crimes in the ff ways: 1. RT drops from 20 years to 15 years 2. Light penalties increase from 2 months to 1 year 3. Libel and slander have no special periods When does prescription of penalties start to run? o The prescriptive period for penalties begins to toll when the accused commits the crime of evasion of service of sentence. When is it interrupted? o 1. Defendant surrenders o 2. Defendant captured o 3. Goes to foreign country where the Philippines has no extradition treaty o 4. Commits another crime before expiration of period
What are the prescriptive periods for penalties? o Death and RP 20 years o RT, PM, other afflictive penalties 15 years o Correctional penalties 10 years o AM 5 years o Light penalties 1 year
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What is the nature and purpose of the ISL? o For benefit of convict, and to increase economic contribution. o Purpose: to individualize the administration of Phil. penal law. o Looks at convict as private individual, and secondly as member of society as a whole. o The State is concerned not only in protecting social organization against criminal acts of
destructive individuals, but also in redeeming the individual for economic usefulness and other social ends. What is the court’s role under the ISL? o Court must determine the maximum of the indeterminate penalty, and then the minimum. How is the maximum determined? o Consider modifying circumstances. Note that the privileged mitigating circumstances must first be considered. How is the minimum determined? o Minimum is one degree lower than that provided by the RPC. o The minimum is within the whole range of the next lower penalty, not necessarily in the same period as the maximum penalty. Thus, the period of the minimum and maximum need not be the same. o Minimum: court has unlimited discretion within the range of the minimum of the penalty one degree lower than the penalty imposed by law Who cannot avail of ISL? o [grave crimes] o 1. Convicted and punished with death, life imprisonment, RP For the purpose of ISL, life imprisonment and RP are synonymous. o 2. Committed:
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Treason, misprision of treason, proposal to commit treason; Rebellion, sedition, espionage; Piracy o [personal circumstances] o 3. Habitual delinquent o 4. Escaped confinement or evaded sentence o 5. Violated conditional pardon o [too short] o 6. Maximum term of not more than one year o 7. Those already sentenced by FJ upon passage of Act Obviously not applicable now, since those incarcerated then are now dead or out of prison Does ISL apply to fines? o No, the ISL does not apply because it applies only to penalty of imprisonment with divisible penalty. There are laws which expressly provide that the convict is not entitled to the benefits of the ISL and parole. Ex. terrorism law. When can a straight penalty be imposed? o When BOTH minimum and maximum durations of imprisonment are less than 1 year (outside coverage of the ISL). For instance, in this case, the maximum was four months and one day. The court imposed a straight penalty of 60 days.
What is parole? o When the person serves the minimum of the ISL, he may apply for parole. He will be allowed to leave the penal institution under certain conditions. (Ex. do not commit crime, etc.) o Offenders who commit crimes while on parole are disqualified from ISL. o This lasts for a certain period of time. o If he complies with the conditions of the parole, the Board of Pardons and Parole will give out final release and discharge. What if the offense is punished under an SPL with a definite range provided for the penalty? o The court still imposes an indeterminate sentence, using the minimum and maximum periods provided by the law as limits.
Probation Law
What are the conditions that should accompany a grant of probation? o Mandatory conditions: 1. Report to designated probation officer within 72 hours after receipt of order 2. Report periodically to the officer at least once a month or sooner, as determined by the officer o Discretionary: the court will specify these What is a penalty subject to probation?
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o Must not exceed 6 years (PC). o Fine must not be 200 pesos or more. Who are disqualified from probation? o [Type of conviction] o 1. Sentenced to maximum term of more than 6 years o 2. Convicted of subversion or any crime against national security or public order o 3. Those who have perfected appeal o [Had prior record] o 4. Previously convicted by FJ of offense punished by imprisonment not less than 1 month and 1 day and/or fine not less than 200 o 5. Once been on probation o [Not likely to be applicable] o 5. Already serving sentence upon effectivity of probation law Again, this is unlikely to apply now Differentiate disqualification from denial: o Denial is when a person is qualified for probation but it is not granted because of, for instance, dubiety in character. o Note that probation is a privilege, not a right. Even if you are not disqualified, it doesn’t mean you are automatically qualified. What is the number one rule? o if you file appeal, you lose benefit of probation. If you file for probation, you cannot appeal. When must application for probation be filed?
o Within period for perfection of an appeal. What is the effect of probation? o 1. The sentence is suspended o 2. If the probation is violated, the entire sentence is served What is the rule on Probation of minors? o If the minor is incorrigible, then he will serve the penalty of imprisonment. But he is still entitled to probation. How did R.A. 9344 amend the Probation Law? o Because normally if you appeal, you lose probation. But under 9344, it is allowed. X was sentenced for three crimes, tried jointly. Each had less than a 6 year penalty. If you add them all up, however, they exceed 6 years. Does probation apply? o Yes. By a vote of 8-7, the SC said he is entitled to probation. The penalty for EACH crime is considered, not all the crimes. X was convicted of frustrated homicide (PM). He appealed to CA, which affirmed, but with modifications. He filed petition for probation but was denied for appealing. He claimed he did not appeal from CA decision. Is X entitled to probation? o No probation, because “appeal” that matters is appeal from the trial court, not the CA. What is the additional rule in RA 9372?
o Those who commit terrorism are not entitled to probation. What is the remedy if the court denied petition for probation? o If there was GADALEJ, the remedy is Rule 65 (Certiorari) Soriano v. CA: In the probation that was granted, a condition was that he has to submit a program of payment for the civil liability. He did not pay. The probation was revoked for failure to comply. Went to the CA: “unconstitutional because he is being imprisoned for nonpayment of debt” HELD: Wrong contention! Imprisoned for not complying for condition of probation, not for nonpayment.
I: CRIMES AGAINST NATIONAL SECURITY TREASON (114)
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What is the nature of treason? o Treason differs from other crimes, because all persons are regarded as principals. Those aiding or abetting, or even those not present in the scene but playing just a small part are considered principals. o N.B. This is the only provision in the RPC that is based on the constitution of the US (Art 3, Sec 3), and not borrowed from Spain. This includes the need to either have: Testimony of two witnesses to the same overt act
Or confession in open court How can a person commit treason? o 1. Levying war against the Philippines o 2. Adhering to the enemy, by giving aid or comfort Why must there be an overt act of giving aid or comfort? o Requirement of overt act of giving aid or comfort is to make sure that the crime of treason has moved from the realm of thought to the realm of action. o In a case, does the mere act of X of letting his German-aligned son stay in his house constitute the overt act of giving aid and comfort? Yes. What is the purpose of the two-witness rule? o To prevent the possible fabrication of evidence to prosecute a person. Quantity of witnesses is not enough; the witnesses must be credible. Each witness must testify to the same overt act. o What if the acts are separable? If the acts are separable, there must be at least two witnesses for each separable act. No need to have to prove the entire composite act; enough to have witnesses prove each component.
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When is there no need for the two witnesses? o If there is confession in open court, then no need for two witnesses. Is offering comfort women to enemy soldiers giving aid and comfort? o P v. Perez: Getting women to satisfy sexual urges of enemy soldiers is not giving aid and comfort to the enemy. o P v. Lozano: Sexual and social relations with Japanese soldiers do not materially improve their war effort. o N.B. J. Callejo disagrees. He thinks this is giving aid and comfort to the enemy. Can aid and comfort be made by speech? o Yes. Aid and comfort may be made by speech. Does the ISL apply? o No. The ISL does not apply to treason. There is a specific provision. Is treason delito continuado? o Yes. Delito continuado contemplates a series of acts committed over time, but only instigated by a single criminal resolution. o Either a single act, or a series of acts impelled by a single criminal intent. Is dual citizenship a defense? o No. Dual citizenship is not a defense. There must have been a prior renunciation of the Filipino citizenship, and if this is not done, one commits treason.
Can treason be committed when a State is occupied? o Yes, as long as it remains the de jure government, as when the Japanese occupied the PI. There are those who hid the principals in treason or helped them by giving arms. Can there be accomplices or accessories in treason? Or are they all principals? o As long as you performed an overt act, there is an act of treason already. There can be no accomplice or accessory in the crime of treason. Do exempting circumstances apply? o Yes. Article 12 defenses APPLY. (Uncontrollable fear, etc.) o A minor who committed treason is still entitled to privileged mitigating circumstance of minority. Are Articles 13 and 14 applicable to treason? o No. The penalty does not depend on 13 or 14, but on the nature of the crime committed. The SC will not apply 13 and 14, and will just assess the crime, according to its barbarity. Is treason a specific intent crime? o Yes. The specific intent is to deliver the country to the enemy. o If you don’t intend to deliver the country to an enemy, then it is mere rebellion
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Aliens may also be guilty of treason. Under what circumstances? o If they are residents of the Philippines, because as resident aliens, they owe temporary allegiance to the Philippines. While they are here, they are under the protection of the Philippines. Treason is a war crime. Explain. o It cannot be committed during time of peace. It may be incubated during time of peace, but once war commences, treason may blossom into a crime (only then). What is the relationship between treason and common crimes? o Treason absorbs common crimes. Is there a complex crime of treason with rape, murder, etc.? o No. It is a political crime, and thus absorbs these other component acts. These are essential elements of the crime of treason; without these, treason could not be committed. What do you mean by levying war? Is the mere assemblage of armed men with capacity to overthrow the government enough or is there a need to strike? o Levying of war means an armed body of men, committing acts of violence for purpose of overthrowing the government.
o There must be an actual assemblage of men for the purpose of executing treasonous design by force. They must be in such a position that they may overthrow the government. It is not even necessary that they be armed by high powered arms, but it is enough that they constitute enough men to overthrow the government. o Mere conspiracy to overthrow is not enough (see conspiracy to commit treason). What is the second mode of committing treason? o 1. Adhering to enemy o 2. Through giving aid and comfort o N.B. BOTH elements must concur. Without one, there is no treason by the second mode. He must translate this to overt acts. There is difference in quantum of evidence to prove adherence and to prove the overt act. Explain. o Adherence may be proved by direct or circumstantial evidence. o The overt act, however, must comply with the two-witness rule, because treason is such a heavy crime, in order to prove it, there is a higher bar. The offenders committed five overt acts. Must the prosecution prove all five with two witnesses? o No. They can prove even just one. o But note that the witnesses must be credible.
Is the use of unlicensed firearms aggravating? o No.
CONSPIRACY AND PROPOSAL TO COMMIT TREASON (115)
Conspiracy or proposal to commit treason is a crime in itself. What if they actually commit treason? o If they actually commit treason, these crimes lose their juridical personality and become mere modes. Is this a war-time crime only? o No. Conspiracy and proposal to commit treason MAY be committed during time of peace.
MISPRISION OF TREASON (116)
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What is the nature of this crime? o Felony by omission. o Gravamen of crime: WILLFUL or MALICIOUS concealment. o It is a crime by dolo although a felony by omission. Elements: o 1. Aware of plan to commit treason; o 2. Fails to report it to governor/mayor or fiscal How much time? o Depends on circumstances. Who can commit this crime?
o ONLY committed by Filipinos, not foreigners. Thus, dual citizens, who are foreigners too, may NOT be liable for misprision of treason. o N.B. compare to treason itself: even dual citizens can commit treason Does the two-witness rule apply? o No. Differentiate this from accessories-after-the-fact: o Misprision of treason is different from being an accessory-after-the-fact. The latter hides the principal. Misprision hides the conspiracy. o Note though: This is moot because there are no accessories in treason. This statement is based on a UK case. What is the punishment? o Punished two degrees lower than treason, since the person who committed misprision is “punished as an accessory to treason.” But he is still a principal of misprision of treason.
PROVOKING WAR AND DISLOYALTY DURING WAR (118-121)
ESPIONAGE (117)
o Consummated as long as there is intent; no need to actually obtain. The mere entering consummates the crime. Is this a war-time crime only? o No. It can be committed even in time of peace
Offenses: o 1. Without authority, entering warship, fort, etc. to obtain information, etc. of confidential nature Relating to national defense o 2. Possessing by reason of public office the confidential information, etc. and disclosing them to foreign representative What is the nature of the first mode?
1. Inciting war or giving motives for reprisals o By unlawful or unauthorized acts, provokes or gives occasion for a war involving or liable to involve the Philippines o Or exposes Filipinos to reprisals 2. Violation of neutrality o During time of war where the Philippines is not involved, violates regulations of neutrality issued by government 3. Correspondence with hostile country – in ascending degree of gravity: o A. if correspondence was prohibited by government o B. if done through ciphers o C. if the information is useful to the enemy 4. Attempt to flee to an enemy country
PIRACY (122-3)
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What are the two modes of committing piracy? o 1. Attacking or seizing a vessel on high seas or Philippine waters
o 2. Seizing cargo, equipment, or personal belongings or complement or passengers on high seas or Philippine Waters Who may commit piracy? o The offenders must not be members of the complement or passengers What if they are members of the crew or they are passengers? o A. There is mutiny, not piracy, through: Unlawful resistance to superior officer or raising commotions and disturbances on board o B. If there is taking of the implements or cargo of the vessel or the passengers, for them to be liable under Art 122 or 123 – they must not be part of the crew or complement. If they are passengers or crew members, the act is ROBBERY under the RPC – Arts 293, 294 What are the Qualifying circumstances? o 1. Seized a vessel by boarding or firing upon it o 2. Pirates abandoned victims without means to save themselves o 3. Attended by murder, homicide, PI, or rape Physical injuries include frustrated or attempted homicide. It must be used in its generic term. What is the effect of RA 7659?
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o RA 7659 merely expanded Arts 122 and 123, but under PD 532, there can be a separate crime of Piracy in Phil. waters or high seas from piracy in Phil. waters or high seas in Arts 122 and 123. When does PD 532 apply then? o PD 532 – one must prove that the perpetrators were purposely organized not just for one act of robbery, but several indiscriminate commissions thereof. There must be evidence of similar attempts or takings before. o If there is only one, either Article 122, 123 or 293, 294 (robbery). What is the nature of piracy on the high seas? o It’s a crime against the law of nations. o Piracy on high seas has two aspects: 1. Violation of common right of nations 2. Criminal liability of the pirates may be imposed by municipal law of the country, where found Arts 122, 123: o 122-3 makes mention of the complement of vessel. Who are these? Under Art 648 of the Code on Commerce, these are all persons on board, from the captain to the cabin boy What is the relationship of piracy with the common crimes committed to accomplish it?
o For these common crimes to be an element of piracy, they must accompany the crime of piracy. There is no complex crime of piracy with rape, or murder, or PI. There is only one crime of piracy. It is a single, indivisible offense. Do not apply Art 48. EVEN IF a lot of people died or were raped, there is still one crime of piracy. o But if these crimes were committed after the piracy has been committed, they become separate crimes. Does the use of an unlicensed firearm (RA 8294) qualify piracy? o No. Even if they used unlicensed arms or explosives, there is no violation of this statute. Philippine waters is defined differently in PD 532, from that in the Constitution: o High seas: all parts of the sea not included in the EEZ o EEZ: not extend beyond 200 nautical miles from shoreline RA 9372 (HSA) o Piracy in Philippine waters and the high seas are predicate crimes of terrorism. If these are committed for purpose of sowing terror in the population, then terrorism is committed, with these as predicate crimes. o RA 6235 – aircraft hijacking is a predicate crime for terrorism under RA 9372 too
What are the punishable acts under RA 6235? o 1. Compel a change of course of a Philippine aircraft or seize control thereof while in flight When is it “in flight”? When all the external doors are closed after embarkation. o 2. Compel foreign aircraft to land in Philippine territory or seize control thereof while in the Philippines o 3. Ship, load, or carry in public passenger aircraft explosive, corrosive, flammable, or poisonous materials o 4. Ship, load, or carry in cargo aircraft any of the same materials against regulations by the Civil Aeronautics Association What are the special aggravating circumstances for the first two offenses above? o 1. Firing upon the pilot, crew, or passenger of the aircraft o 2. Exploded or attempted to explode a bomb to destroy the aircraft o 3. Accompanied by murder, homicide, PI, or rape (same as last ground of piracy) P v. Catantan: There is crime under PD 532 even if offender did not seize the vessel, but merely boarded it and inflicted PI on the occupant or owner.
R.A. 9372 – HUMAN SECURITY ACT 100
What is terrorism?
o Sowing widespread and extraordinary fear and panic among the populace to coerce the government to give into an unlawful demand, and committing the following any of the acts enumerated. What are the enumerated acts? o Under the RPC 1. Piracy or mutiny 2. Rebellion/insurrection 3. Coup d’etat 4. Murder 5. Kidnapping and Serious Illegal Detention 6. Crimes involving destruction o Under special law 1. PD 1613 – law on arson 2. RA 6969 – toxic substances and nuclear waste act 3. RA 5207 – atomic energy regulatory and liability act 4. RA 6235 – anti-hijacking law 5. PD 532 – anti-piracy and antihighway robbery law 6. PD 1866/RA 8294 – illegal possession of firearms and unlawful manufacture/use of explosives Who are liable? o 1. Principals o 2. Accomplices
o 3. Accessories o 4. Conspirators (even if not yet executed) II: CRIMES AGAINST FUNDAMENTAL LAW ARBITRARY DETENTION (124)
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Elements: o 1. Offender is public officer or employee o 2. Detains person o 3. Without legal ground What is gravamen of the crime? o Detention without legal grounds by public officer or employee, of another person. How do you distinguish this from kidnapping? o Arbitrary detention: public officer or employee vested with authority to arrest or detain another person detains another without any lawful cause. o Kidnapping: offender is a private person and the purpose is to deprive the victim of his or her liberty. Who are liable for arbitrary detention? o Public officers or employees authorized to detain another person. o Ex. PNP, NBI, even judges acting in official capacity Who are persons in authority, or agents of persons in authority authorized to detain?
o LGC, Sec. 338: Punong barangay Members of sangguniang barangay Members of lupong tagapamayapa N.B. They are persons of authority but limited to their jurisdiction, in their respective barangays. If they arrest beyond their barangay, they are NOT persons in authority under this provision. o Art. 152 Barangay captain Barangay councilman Barrio policeman o Forestry Code District foresters are authorized to enforce Forestry Code and may arrest violators. Forest officers or employees of bureau of forest management – they do not even need a warrant of arrest to arrest. o Sec. 44 of RA 9165 – Dangerous Drugs Law School heads, supervisors, and teachers are persons of authority, for the purpose of enforcing the Dangerous Drugs Law within school premises or outside school premises in an official school activity o Are the members of the CAFGU persons in authority?
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Yes. They are authorized to carry firearms, to complement the operations of the regular force of PNP; they are composed of civilian volunteers. Under EO 264, they MAY arrest. So they can be liable for arbitrary detention. May a private person be liable for arbitrary detention? o Yes, but only if the private individual connives with the person in authority. What do you mean by detention? o Psychological restraint and not just physical restraint is enough for this provision, in whatever form, for whatever length of time. Ex. keeping a child in a room, threatening her with a big gun o Fear has been known to make people immobile. This includes threats to kill, and similar threats. This is equivalent to using actual physical force to detain. Take note of circumstances where people can be arrested without a warrant (in flagrante delicto, etc.). Failure to comply with these exceptions and yet arresting without warrant is Arbitrary Detention. Usual cause of Arbitrary Detention charge is arresting a person without warrant. o Ex. a person evading his sentence may be arrested on the run without a warrant, because he is committing an offense in flagrante delicto.
o David v. Arroyo: Mere fact that the accused was wearing a t-shirt saying “oust Gloria now” is not a reason in itself to be arrested for inciting to sedition. o P v. Lozada: Hot pursuit based on actual facts, with the use of the senses of the policemen, with reasonable basis to believe that the person arrested is the author of the crime, etc. Under the HSA, may a person be arrested for act of terrorism, and for how long must the arrested person be detained? o Maximum of three days. How may arbitrary detention be committed? o Arbitrary detention may be committed by dolo or culpa. Ex. of culpa: Re-arresting a person who was released by means of order of the court. May there be a complex crime of arbitrary detention with PI? o Yes. This happens when there is excessive force in the arrest. Are the periods provided in Article 124 essential elements of the crime? o No. These just provide a guide for calculating the sentence. What if a person arrested is later acquitted after trial?
o This is fine. He need not ACTUALLY be convicted as having committed a crime – enough to examine the nature of his deed and how the officer at the moment characterized the act. (Existence of probable cause) ARBITRARY DETENTION
DELAY PRISONERS TO JUDICIAL AUTHORITIES (125)
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THROUGH
IN DELIVERY OF
Elements: o 1. Offender is public officer or employee o 2. Detained a person legally o 3. Fails to deliver person to proper judicial authorities within proper time period Under the HSA, what are the duties of those conducting custodial investigation? o N.B. More expansive than duties in RA 7438 (Act defining rights of persons under custodial investigation) o Before detaining a person after warrantless arrest, he MUST first deliver the person to the nearest office OR RESIDENCE of a judge, so judge can: 1. Ascertain identity of officer and arrested person 2. Determine circumstances behind arrest 3. Check for torture, or other abuses o Then, the judge delivers within 3 days to nearest court with jurisdiction his report.
Does the law apply to crimes defined by SPL? o Depends, if the penalties used follow the nomenclature of the RPC. How do you determine the imposable penalty? o 12 hours – light o 18 hours – correctional o 36 hours – afflictive o (3 days – under the HSA) o What is the basis for the nature of the crime? What crime as it appears to the arresting officer, and NOT what the crime actually turned out to be. What is delivery to judicial authorities? o Means constructive delivery, which is time the appropriate complaint or information is filed, with the court for appropriate judicial proceedings. N.B. Not a Preliminary investigation. (There’s a reason why resorting to preliminary investigation requires waiver of Art. 125 under Crim. Procedure) Take note of rules on inquest. Art. 125 talks about those LAWFULLY arrested, but there was no immediate delivery to the courts. The inquest must be terminated within period stated in Art. 125. Or else, the
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policeman will be liable under this provision. To whom must the detainee be delivered? o MTC, RTC, Family Court, or SB o Not to the CA, not to the SC. They are not trial courts. If there was no warrant of arrest or commitment order, but the information or complaint was filed, is there delivery? o Yes. Alvior v. Auguis: [Context: before, the MTC may still conduct PI, but now they cannot under the amended ROC.] The person was lawfully arrested then delivered to MTC, but the judge was not there. The arresting officer did not release the detainee. He just delivered to the clerk of court. HELD: Liable for failure to deliver, because the clerk cannot conduct PI anyway and the judge was not there. o Note: If the case is cognizable by the OMB or Sandiganbayan there is agreement between OMB and DOJ, where the DOJ can conduct PI but they have to submit findings to the OMB. How does Art. 12, par. 7 apply as defense? o There can be defense of insuperable cause for delay in delivery. What about delay in delivery of a person arrested lawfully by a private person?
o Delay in delivery of a prisoner arrested lawfully by a private person amounts to ILLEGAL DETENTION, not arbitrary detention. Does Art. 125 apply to arrests with warrant? o No. Article 125 only applies to warrantless arrests. What if the officer fails to comply with Article 125? o Failure of officer to comply with Article 125 does not affect the legality of the confinement.
EXPULSION (127)
ARBITRARY DETENTION THROUGH DELAY IN RELEASE (126)
What is the penalty? o Same penalty as 124, because failure to release is tantamount to arbitrary detention.
What is the nature of this crime? o Another crime by omission. Acts punishable: o 1. Officer delays release of arrested person (either convict or detention prisoner) beyond period provided. o 2. Unduly delays service of notice of such order to the prisoner o 3. Unduly delays proceedings upon petition for liberation Proceedings mentioned in the article: petition for habeas corpus Offenders: o Heads of jail or penal establishment o Custodial guards Who may order release of prisoner? o Either the courts or the prosecutor, or the director of Bureau of Prisons
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When is one liable for expulsion? o He must use force, violence, or other measures to compel another to change his residence against his will Who can commit this crime? o Can only be done by public officers or employees. o What if the person is not one? If NOT authorized, then the crime is trespass to dwelling. Relate to RA 9165, Sec. 31: o In addition to the penalty provided for in the DDA, any alien who violates the provision must be deported immediately without further proceedings, except if the penalty is death (although no more DP under RA 9346) Under Probation Law: may the person be compelled to change his residence? o Yes. Sec. 10. The court may require the probationer to reside in a place designated by court, and may not change residence without prior notice. Marcos v. Manglapus: Heirs of the late President Marcos are barred from returning to the Philippines.
What is the power of the President to deport? o With respect to aliens, with respect to the Deportation Board, the President has the power to deport aliens. What is the effect of an extradition treaty? o If the Philippines has an extradition treaty with another country, may compel a person in the Philippines to be deported and extradited to that other country. HSA RA 9372 – one charged with terrorism may be granted bail, but placed under house arrest under usual place of residence until further order of court.
VIOLATION OF DOMICILE (128)
May be violated through 3 modes: o 1. Entered dwelling o 2. Searched without consent o 3. Entered and refused to leave If all three of these modes are committed, how many crimes are committed? o Just one. Remember, these are modes and not individual felonies. Who may commit this crime? o May only be committed by public officers or employees with authority to arrest, or to seize property of another. o Article 128 does not apply to public officer or employee who entered dwelling of another in hot pursuit.
Is it possible that the consent of the owner of the house is denied impliedly, and not expressly? o Yes. It may be implied or express, in spite of the law’s language (“without the previous consent of such owner”) What if there is unusual ingress? o If entry is made through a way not intended for ingress, there is entry against will of owner – denial is implied “Owner”: does this include lessee of the house? o Yes. Residence under this provision is the place where the person is habitually present; and from where he departs and intends to return.
SEARCH
WARRANT MALICIOUSLY OBTAINED, OR ABUSE IN
SERVICE OF WARRANT LAWFULLY OBTAINED (129)
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Acts punishable: o 1. Procuring search warrant without just cause o 2. Exceeding authority or using unnecessary severity in executing legal search warrant Does Article 48 apply in this instance? o No. Remember: 129 is an EXCEPTION to Art. 48. When a public officer obtains maliciously a search warrant by submitting a perjurious affidavit or deposition, there are TWO crimes committed 1. Perjury; and
2. Procurement of malicious search warrant o Basis of this statement is the phrase “in addition to the liability attaching to the offender for the commission of any other offense…” If the officer applied for search warrant without probable cause, and uses the warrant to extort money. Is the police officer liable for malicious procurement? o Yes. Because he was acting in BF. There was malice. o If the policeman applied for a warrant in GF, but it was denied, there is no crime committed. If officer knew deposition was false, but still submitted it to obtain warrant, what are the crimes? o 1. Procurement of malicious search warrant o 2. Art. 184 – offering false testimony in evidence What is the liability of the one who made the deposition and knew it was false, but still came up with deposition? o Perjury Mode 2: when a search warrant was lawfully obtained, BUT in the enforcement, the officer EXCEEDED his authority. o Usual example: the items seized were not in the warrant.
o Exception: “plain view.” But if not in plain view, he would exceed his authority. Can an officer break open a door? o Officer may break open the door, if he is refused entry upon knocking and identifying himself as an officer. o “Knock and announce rule” in warrants, BEFORE breaking a door. o “Breakage”: includes lifting latch, unlocking chair or hatch, turning knob, etc. Does Article 129 apply to searches by employees of the Bureau of Customs? o No, because authority is based on Art. 2203 of Tariff and Customs Code, in enforcement of customs law. o N.B. BOC officials do not possess authority to do searches in domicile
PROHIBITION, INTERRUPTION, MEETINGS (131)
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DISSOLUTION OF PEACEFUL
Who can commit this crime? o Only committed by public officers. o If done by a private person, it is serious disturbance/tumults (Art. 153). What if it is committed by a member of the meeting? o It’s not interruption of peaceful meeting. It must be done by a stranger to the meeting.
o If done by a member of the meeting, it is unjust vexation Acts punishable: o 1. Prohibiting/interrupting/dissolving peaceful meeting without legal ground If the meeting is not peaceful, it can be broken up o 2. Hindering persons from joining lawful association or preventing them from attending o 3. Prohibiting or hindering persons from petitioning to authorities for correction of abuses or grievances
CRIMES AGAINST RELIGIOUS WORSHIP (132—3)
Interruption of religious worship Offending religious feelings
R.A. 9745 (ANTI-TORTURE ACT)
Punishable acts: o 1. Physical torture Act imposed by a person in authority or his agent upon a person in custody that causes severe pain, exhaustion, dysfunction, or disability o 2. Mental or psychological torture Act imposed by a person in authority or his agent which is calculated to affect or confuse the mind or undermine a person’s dignity or morale
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o 3. Other cruel, inhuman, and degrading treatment Act of deliberate and aggravated treatment not falling under the two above, imposed by a person in authority or his agent upon a person in custody causing severe suffering, gross humiliation, or debasement o 4. Secret detention, solitary confinement, incommunicado Can torture or CIDT be justified by war? o No. It is jus cogens. Who are liable? o 1. Principals (all three kinds) o 2. Superior military/police official or senior government official who gave an order Liable as principal o 3. Immediate commanding officer of the unit or immediate senior public official who knew of the torture/CIDT and could’ve prevented it but didn’t o 4. Accessories: A. Profiting from torture/CIDT (knew of it) B. Concealing the torture/CIDT or destroying effects/instruments C. Harboring, concealing, helping the principal escape What are the special aggravating circumstances?
o o o o
1. Torture resulting into death 2. Torture resulting into mutilation 3. Torture with rape or sexual abuse 4. Torture where victim became insane, an imbecile, impotent, blind, or maimed for life o 5. Against children What is the nature of torture? o It is a “separate and independent crime.” It does not absorb and is not absorbed by any other felony or crime committed as a means or consequence thereof. What is the applicability of the RPC? o 1. It is suppletorily applicable o 2. Any crime punished as a Crime against Persons (Title 8) and Crimes against Personal Liberty and Security (Title 9) and attended by any of the acts constituting torture/CIDT are punished in their maximum period. So what is the “dual nature” of torture (important)? o Torture is both an aggravating circumstance and a separate and independent crime in itself Can torturers be subject to amnesty? o No, by express provision, as to not depreciate the crime
III: CRIMES AGAINST PUBLIC ORDER Rebellion, sedition, disloyalty REBELLION OR INSURRECTION (134)
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What are the elements of rebellion? o 1. Rising publicly and taking arms against the Government o 2. For purpose of removing from Phil. allegiance the territory of the Philippines (or any part thereof or naval/armed forces), depriving the President or Congress of any of its powers or prerogatives Distinguish rebellion from insurrection: o Rebellion – overthrow government and supersede it o Insurrection – minor change as to certain matters in government or to prevent exercise of government authority as to certain matters What is the nature of rebellion? o Insurrection and rebellion are both political crimes. o Involves any part of the country; or whole country o Can be private or public individuals o Rebellion is a vast movement of people; involving multitudes Is rebellion a continuing crime?
o Yes. SC declared that rebellion is by nature, a continuing offense, which differentiates it from other offenses. It may be committed by a single or a series of acts for achieving any or all of the purposes stated in the RPC provision. What must concur for rebellion to exist? o For rebellion to exist there must be intent + overt acts. o Common crimes are absorbed by the political crime. o But even if the common crime is absorbed by the political crime, there may be civil liability for these predicate crimes. The liability under the NCC is apart from liabilities in the RPC. May there be frustrated rebellion? o No. When the intent + overt acts are present, the crime is consummated. There is no need to achieve the goal. o Likewise, no frustrated coup d’etat. o No need for actual clash. Is being a member of the CPP rebellion? o No. Mere membership in CPP is not rebellion. But being a member of the NPA, the military arm of the CPP, constitutes rebellion. Is subversion a crime? o No more crime of subversion. Rebellion is a crime against public order. What about terrorism?
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o It is a crime against national security and the law of nations. o There can be a crime of international terrorism; it a crime much like international piracy, where anyone may capture the suspected terrorist anywhere. Can there be a complex crime of terrorism with rebellion? o No. Rebellion is simply a predicate crime of terrorism. o Why is rebellion a predicate crime of terrorism? Because committing rebellion can sow widespread fear. In the same way, murder is a predicate crime, because multiple murders or maybe murdering one key person like the President could cause widespread panic or fear. How is terrorism different? o Terrorism is different because the purpose is to achieve the illegal demand on the government. It may be political, and it may not – it may be purely monetary. What is the main difference between terrorism and rebellion? o For terrorism, there must be widespread panic and fear; and there must be an unlawful demand against the government.
NOTE: terrorism is a specific intent crime, as with rebellion – so there is a difference in the o In contrast, rebellion is merely a crime against public order. Objectives: 1) remove allegiance to government of the Phil. Territory or any part; 2) or deprive Chief Executive or legislative of powers/prerogatives
COUP D’ETAT (134-A)
Elements of coup d’etat? o 1. Swift attack accompanied by any of the modes below, o 2. Against: A. Duly constituted authorities of the Philippines B. Any military camp or installation, communications network, public utilities/facilities for exercise of power o 3. Carried out by military or police or public officers With or without civilian support o 4. To seize or diminish State power What is the nature of coup d’etat? o Also a political crime o Intent is to diminish State power (eminent domain, taxation, police power) What are the modes by which coup can be committed?
o Violence, intimidation, threat, strategy, stealth + swift attack Does it absorb common crimes? o Some, but not all common crimes o Is rape absorbed by coup? No. Rape cannot be absorbed, because it does not help forward the power of diminishing power (unlike in rebellion, where rape would help sow public disorder.) o What about murder in coup d’etat? It can be absorbed, because it helps further the intent. o What about use of explosives? Use of explosives is absorbed by coup d’etat (RA 8294) Is there a frustrated crime of coup d’etat? o No. The moment there is intent + swift attack, the crime is consummated, even if the purpose is not achieved. o There can be attempted coup d’etat, but not frustrated.
CONSPIRACY AND PROPOSAL INSURRECTION, OR COUP (136)
COMMIT
REBELLION,
Omil v. Ramos: Conspiracy to commit rebellion or coup d’etat is a continuing crime. (“Believe it or not,” according to J. Callejo)
DISLOYALTY (137) 111
TO
o If the listeners are incited to commit rebellion, all of them, including the inciter, are ALL principals for the crime of rebellion Inciter PDI Listeners PDP
When is there disloyalty? o 1. Failed to resist a rebellion by all the means in their power Mode: crime of omission May invoke Art. 12 (fear, force, intimidation, etc.) o 2. Continuing to discharge functions o 3. Acceptance of public position Is motive material? o Motive of public officer is immaterial; whether it is gratuitous or not When does disloyalty lose juridical existence? o If the officer commits overt acts of rebellion (e.g., he continues discharging his office and he commits murder or malversation to help the rebels), then the crime becomes rebellion, not disloyalty
SEDITION (139)
INCITING TO REBELLION OR INSURRECTION (138)
What is the punishable act? o Writings or speech must be done with intent to induce the readers or listeners to commit rebellion or insurrection What if the listeners do not act upon the incitement? o If the listeners are not incited, they are not guilty of any crime. But the person speaking is guilty for inciting. What if the listeners are incited to rebel?
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What is sedition? o Sedition is the raising of commotion or disturbance in the state; revolt against legitimate authority, public corporation, social classes, etc. o Ultimate objective: violation of the public peace Elements of sedition? o 1. Rise publicly and tumultuously o 2. To obtain by force, intimidation, or other illegal methods o 3. Any of the following motives/purposes discussed below Key term: o “Publicly and tumultuously” o What is “tumultuously”? Full of public commotion, or uproar. Essence: intent + tumultuous uprising o When is there public uprising? “Tumultuous public uprising” – more than Is it a public crime?
o Yes. Sedition is a crime against public order and the tranquility of the general public When is the crime consummated? o Again, the crime is consummated upon concurrence of intent + overt acts. Motives: o [Preventing exercise of functions of execution of law] o 1. Prevent promulgation or execution of and law, or holding of popular election o 2. Prevent National, provincial, or municipal government or officer from exercising functions or preventing execution of AO N.B. no “barangay official” in the enumeration o [Act of hate or revenge] o 3. Inflict act of hate/revenge upon person or property of public officer or employee Contrast with direct assault: here, there is tumultuous public uprising o 4. Commit act of hate/revenge against private persons or social class, for political or social end o [Despoiling] o 5. Despoil any person, municipality, or province, or National Government of all its property or part thereof, for political or social end What laws are included in par. 1?
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o Laws in general, even political in nature, as well as civil and criminal laws; ordinances of municipal or provincial boards Who are the officers included in par. 2? o Includes judges and justices, and constitutional officers; municipal council, provincial government or board o BUT NOT barangay officials or council Although they are included in par. 3 In both rebellion and sedition, there is a public uprising. What is the difference? o Rebellion to achieve political purpose, they take up arms o Sedition as long as tumultuous; they do not take up arms, because they do not intend to overthrow the government o three persons who are armed participating therein What are crimes of hate/revenge in paragraphs 3/4? o Crimes against persons (murder, etc.) o Crimes against property (arson) o Victim may be private or public officials, whether of national or local government What about crimes of murder, homicide, PI, arson, committed by those committing sedition – are these absorbed? o NO! They are not absorbed. Neither are these complexed. DO NOT apply Art. 48
o They are are separate and independent crimes Ex. P v. Cabrera- guilty of sedition, and murder as separate crimes o N.B. Differentiate from rebellion or coup which allows absorption. Neither rebellion, coup, or sedition allow complex crimes. When can there be a complex crime involving sedition? o Sedition and Art. 143/144 (prevention of meeting of board/Congress)
Crimes against popular representation ACTS
No crime of proposal to commit sedition; just conspiracy
INCITING TO SEDITION (142)
PREVENTING MEETING OF
CONGRESS
AND SIMILAR
BODIES (143)
CONSPIRACY TO COMMIT SEDITION (141)
Article 142 punishes also those who “conceal such evil practices” (inciting to sedition). What does this imply? o “Concealing such evil practices” is not an act of an accessory in this case, but an act of a principal.
Does freedom of speech include inciting sedition? o No. Freedom of speech does not protect inciting to sedition Punishable acts: o 1. Inciting others to commit acts of sedition o 2. Uttering seditious words or speeches tending to disturb public peace o 3. Writing, publishing, circulating scurrilous libels and government or authorities tending to disturb public peace o N.B. For #2 and 3, no need to have any of the enumerated purposes
Elements? o 1. Through force or fraud o 2. Preventing the meeting of the Congress, any of its subcommittees/subdivisions, constitutional commissions, or provincial/city/municipal board Meeting of barangay council is not included here Liable for grave coercion under Art. 286 May be committed by public officers or employees
DISTURBANCE OF PROCEEDINGS (144)
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Two modes of committing this crime? o 1. Disturbing the meeting of the bodies enumerated, or o 2. In the presence of any of such bodies enumerated, behaving in a manner as to interrupt proceedings or impair due respect
Who must commit this crime? o Offender must NOT be a member of the body disturbed; he must be a stranger to the deliberative body N.B. Again, barangay council meeting not covered by this provision Can there be a complex crime? o Yes. If they commit crimes of violence like homicide to disturb the meeting, there CAN be a complex crime under Art. 48
Illegal assemblies and associations ILLEGAL ASSEMBLIES (146)
VIOLATION OF PARLIAMENTARY IMMUNITY (145)
o Ex. If a congressman is in possession of lowcaliber gun, he is protected (since this is up to 6 years only) o Ex. But if the gun is high caliber, he is not immune (this is prision mayor) They are also immune from searches under this provision. But it is not in the Constitution.
Elements of first mode? o 1. Through force, intimidation, threats, fraud o 2. Prevent a member of Congress from: attending session or meeting expressing opinions or casting vote Elements of second mode? o 1. Public officer or employee o 2. Arrests or searches member of Congress o 3. While Congress is in regular or special session o 4. Unless the crime committed is more than 6 years Correlate with the Constitution: o Art. 145: amended by 1987 constitution. Parliamentary immunity only applies up to prision correctional (the provision says “prision mayor”).
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Two forms of this crime : o 1. Meeting conducted for the purpose of committing any crime punishable under RPC AND there were armed persons o 2. Meeting where audience is incited to commit treason, rebellion/insurrection, sedition, or direct assault Whether armed or not Who are the leaders or organizers of illegal assemblies? o May be determined by their speeches, publications, pamphlets, banners, leaflets indicating roles and responsibilities If there is one with an unlicensed firearm, and he attended an illegal assembly, is he liable for RA 8294? o No, because he is committing another crime. So he cannot be guilty of violating RA 8294.
o 2. The person will be considered a leader or organizer of the meeting (and is punished PC instead of AM)
Under the first form, a meeting with presence of an armed person to achieve a crime in the RPC is proscribed. If they ACTUALLY commit the crime, what happens to illegal assembly? o It loses its juridical existence. It becomes a mere preparatory act. What about the second form? o It is a point of disagreement as to the liability of the person who incites the commission of treason, rebellion/insurrection, sedition, or direct assault: Some say the crime is inciting to rebellion or sedition BUT the problem is, it is an element of illegal assembly (146), so how can one commit inciting to rebellion or sedition? o J. Callejo’s opinion: If the inciter is NOT a member of the assembly (an outsider) – he is liable for inciting. If the inciter is a member – the government has two options to charge with: 1. Illegal assembly, or 2. Inciting to rebellion or sedition What is the presumption if one carries an unlicensed firearm to the meeting? o 1. Presumed that the purpose of the meeting is to commit violations of the RPC
ILLEGAL ASSOCIATIONS (147)
What are the two types of illegal associations? o 1. Totally or partially organized to commit any of the crimes in the RPC o 2. Totally or partially organized for some purpose contrary to public morals What are public morals? o Estrada v. Escritor: “those which are detrimental or dangerous to conditions helpful for the advancement of society” o Not religious morality, but secular morality. What was added by RA 9208 (anti-trafficking law)? o Punishes association organized to propagate or promote immoral doctrines, obscene publications or shows, sex tourism, sexual exploitation, pornography What was added by the HSA (RA 9372)? o Sec. 17: Public officers may petition that an association may be declared as one composed of those conspiring to commit terrorism
Assault upon, resistance, or disobedience to PIAs or their agents DIRECT ASSAULTS (148) 116
What is the purpose of Article 148? o Intended to protect those exercising official functions and to guarantee dignity and authority What is the nature of Direct Assault? o It is a FORMAL CRIME. It is not a material crime. o There can be no attempted or frustrated direct assault. o It is consummated when a person of authority is attacked with force or met with serious intimidation or resistance What are the forms of direct assault? o 1. Without public uprising, use force/intimidation to attain any of the purposes in rebellion or sedition: [Rebellion] A. Remove allegiance from Philippines the national territory or any part thereof, depriving President/Congress of powers over it [Sedition] B. Prevent exercise of powers/execution of law C. Acts of hate/revenge against public officer or social class for political or social end
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D. Despoiling any person or public subdivision of property for political or social end o 2. Attack, use force, or seriously intimidate or resist a PIA or any of his agents While in the performance of duties Which is more common? o The first form rarely occurs (it’s difficult and rare to achieve these ends without a public uprising) o Second form is more common Who may be liable in second form? o Private individual, person in authority, or agent of person in authority Under what circumstance is direct assault committed? o Crime may be committed when PIA or agent is performing duty o Or he was attacked for past performance of duty What does “seriously” qualify? o “Seriously” qualifies only “intimidate” and “resist” but not attack or the use force, which only requires a laying of hands o So if there is use of force, degree of force is not material. Degree is only important for intimidation or resistance. Is motive important? o For second form, motive is not important
o For first form, when one is not performing his duty, then motive comes into play What are the elements of the second form? o 1. The public officer was performing his duty or was attacked for past performance of duty A public officer goes to a locality to solemnize a marriage and then he returns to his office. En route, he is assaulted. Is it direct assault? Yes. When he is going back to his public office after solemnizing the marriage, the going back is part of his official duty. If a mayor is attacked for past performance of duty, is it direct assault? Yes. X attacked a barangay kagawad, but hit the barangay chief tanod who was just sitting around. Is it direct assault? No. The tanod is not performing his duty at the time he was hit. o 2. Accused knew or ought to have known that he was a public officer or an agent thereof Case: an officer in civilian clothes was surveying a public market. Was there DA?
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No. Because the accused did not know that the accused was a police officer who was on 24 hour duty. And the accused killed the victim on a personal grudge. o 3. He attacked, used force, or seriously intimidated/resisted the PIA or his agent What does “Agent” include? Police, Malacanang confidential agent, sheriff Municipal treasurer (since he is only a deputy ex-officio of the provincial treasurer) Postmaster Agents of BIR o 4. Qualified if: 1. Committed with a weapon 2. Offender is public officer or employee 3. Laid a hand on the PIA What if there is an agreement to fight? o Husto v. CA Husto is an academic supervisor. The victim, an academic supervisor too, wanted to transfer a favorite teacher to Poblacion. Husto disagreed. They agreed to fight. When they were just about to go out, Husto could not wait; he grabbed an ashtray and smashed it against the other’s head.
o HELD: It was direct assault because they did not fight outside What if the officer exceeds his authority? o P v. Fook: Fook, a Chinese person, went to the Philippines. He got body searched in immigration and he passed. He went back because he forgot something. He got body searched again. He got upset and resisted. He was charged for direct assault. o HELD: No direct assault. The PIA or his agent who exceeds his power is NOT in the exercise of the functions of his office. Here, they body searched Fook TWICE, which is beyond the scope of duty. o Resistance is legitimate against PIA or agent who exceeds authority. How much resistance can be done depends on the extent of excess of authority. o When is one not liable for resistance? For one not to be liable for resistance, the resistance must be co-extensive with the excess of authority, and just sufficient to repel the excess or abuse What does “lay a hand” mean? o To inflict upon PIA or agent a physical attack; holding; shoving; etc., with intent to cause evil or injury o When a person lays a hand over PIA, the crime is direct assault. It is not necessary to
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ascertain what force the law requires, since the law itself defines the force by providing the term “laying a hand.” When is force or intimidation serious enough? o Depending on circumstances of the particular event. In the following cases, there was direct assault: o Accused punched a police officer several times o Accused struck police officer with pen knife and wounded him o Accused tried to stab the police officer but he missed – still DA (so need not actually strike the PIA) o Accused struck judge with dagger, after the judge convicted him of theft Recall that DA is qualified if committed with a weapon. What is the special nature of qualified direct assault with the use of a weapon? o It is a special aggravating circumstance; cannot be offset by generic MC. o Not enough to merely carry a weapon. He must use the weapon to assault the victim. o Mere aiming of a gun at a PIA is qualified direct assault because there is intimidation, with use of weapon. What if a diplomat is assaulted? o RA75, sec. 7 (Assault of diplomat) is a special crime
o A crime is committed by any person who assaults, strikes, or wounds a public minister or ambassador, contrary to law of nations There can be a complex crime of direct assault with another felony. o What if the assault on the PIA or agent results to his death? Complex crime of direct assault with murder or homicide o When is there none? But if direct assault is committed and ONLY slight PI results, there is just the crime of direct assault. o A mayor is on the way home or on the way to the office. The accused robbed the mayor and killed him. What is the crime? Robbery with homicide. The direct assault is absorbed by Robbery with homicide, which absorbs crimes committed pursuant to such. o X fired an SMG against police officers serving warrant. What is the crime? Direct assault with multiple attempted homicide o Can there be complex crime of DA with serious disturbance under Art. 153? Yes. If election inspectors or watchers are holding a meeting to canvass, and they were assaulted, causing serious
disturbance: there is a complex crime of direct assault with serious disturbance How do you reconcile DA with Less Serious Physical Injuries (Art 265), which provides a distinct penalty if the victim is a PIA? o Art. 265 – If there are less serious PI, the crime is less serious PI. The PIA must not be performing his duties when the less serious PI is inflicted, or it is not by reason of past performance of duty. o Art 48 – Direct assault with less serious PI if the PIA is in performance of his duty or is attacked for past performance of duty. Who else can be PIAs? o Lawyers and teachers can be PIAs o Correlate with RA 9165 (DDAs) – teachers and professors are PIAs when performing their duties
INDIRECT ASSAULTS (149)
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Elements: o 1. There is direct assault against an agent of a person in authority (under Art. 148) o 2. A person came to the aid of the agent o 3. The offender uses force or intimidation against such person coming to the aid of the agent There is disagreement again as to this provision. o Guevara and Reyes: WRONG about this
Said there is indirect assault if there is a person going to the aid of PIA or agent, and that person is himself assaulted. o J Callejo agrees with Regalado: Guevara and Reyes did not take into account RA 1978: If one who goes the aid of a PIA, he becomes an agent of a PIA. If he himself is attacked, then he becomes an agent of a PIA it becomes direct assault There is only indirect assault if the private person comes to the aid of the agent of the PIA.
RESISTANCE AND DISOBEDIENCE TO A PIA/AGENT (151)
DISOBEDIENCE TO SUMMONS (150)
o The President of the Philippines and members of SC are exempt from powers of inquiry o If President does not agree with attendance of members of Executive, they cannot be compelled to answer queries of Senate Relate to Sec. 35 of HSA: o Any information secured in violation of antiterrorism law is inadmissible in evidence in any judicial, QJ, legislative, or admin functions
What are the acts punished? o 1. Refusal to obey summons of Congress, or any commission authorized to summon witnesses o 2. Refusing to be sworn in o 3. Refusing to answer legal inquiry or produce documents o 4. Restraining another from attending as a witness therein o 5. Inducing disobedience to summons or refusal to be sworn in (#1 or 2) What is the doctrine laid down by Senate v. Ermita (EO 464)?
When does this provision apply? o When there is resistance or serious disobedience of a PIA/his agent but not falling under the prior provisions
Public disorders SERIOUS DISTURBANCE/TUMULTS (153)
121
Acts punished as tumults/other disturbances of public order: o 1. Serious disturbance in public place o 2. Interrupting or disturbing gatherings not included in 131 or 132 (thus, neither political nor religious) o 3. Making outcry tending to incite rebellion or sedition o 4. Displaying placards or emblems which provoke disturbance of public place
o 5. Burying with pomp one who is executed Relate to Art. 131: When is one guilty under disturbance/prohibition of peaceful meetings? o For policemen to be guilty under 131, the person must be a stranger to the meeting. What are the limits to right of assembly? What is the test? o Clear and present danger of substantive evil, with imminent danger posed against the public interest What does BP 880 require before a rally can be conducted? o There is need to secure a permit When can permit be denied? CPD o N.B. But for freedom parks, there is no need for a permit o Calibrated preemptive response – maximum tolerance
NOT part of the Part of assembly assembly Covers peaceable assemblies rallies
the NOT part of the assembly Covers normal gatherings (non political, non religious)
or Cannot be committed by culpa (there is intent to seriously disturb)
Distinguish: Interruption of Serious Interruption of peaceful disturbance gatherings (153, meetings (131) (153, p.1) – p.2) taken in contrast with 131
Caused by public Caused by public Caused by a officer officer private or public officer 122
What is the nature of the crimes? o 131 – crime against the fundamental law of the State o 153 – crime against public order So this really is just for normal gatherings, and not one subject to fundamental rights This does not include religious assembly, which is covered by 132. o In a public rally of INC there was serious disturbance. Is this covered by 131, 132, or 153? Art. 131. This is not a religious ceremony, but a rally. Distinguish 153 from 155 (Alarms and scandals)? o In both cases, there is disturbance
o 153 – causing of public disturbance, and the offender had the intention to cause such serious disturbance Cannot be committed by culpa o 155 – disturbance is not serious o What kind of disturbance must be caused in 153? Serious. Otherwise, it will be alarms or scandals under 155. o How do you determine if the disturbance is serious or not? Look at the place, facts and circumstances surrounding the cause of disturbance, and effect to people at that time The locus of the crime is determinative of its nature. What do you mean by this? o The place where it is committed. o Public place is one that is open to all, as distinguished from domiciles. Under second mode of 153, what are the elements? o 1. There is public performance or function Suppose someone disturbs court proceedings, is it covered by the second mode? Can be charged with Art. 153, because these are open to the public.
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Covers proceedings such as by COMELEC o 2. There is disturbance caused There is a presumption under law of tumultuous disturbance. When does this presumption vest? o If caused by more than 3 armed men. o If there is actually a tumultuous disturbance, does the presumption need to apply? No need for the presumption. In the causation of a serious public disturbance, there is SPI or damage to property. Do you apply Article 48? o Yes; there are two grave or less grave felonies committed in a single act. (Ex. Disturbed COMELEC proceeding.) o Villanueva v. Ortiz – there was complex crime of serious disturbance with direct assault. If there are two modes done, is there a complex crime? o No, there is just one crime, notwithstanding multiple modes. Distinguish inciting to rebellion/sedition from the third mode of violating Art. 153 (“tending to incite rebellion/sedition”)? o Intent controls. For inciting, there has to be intent in the first place. For 153, there’s just tendency to incite.
Does the “burying with pomp” provision still apply? o No, in light of RA 9346, nobody can be executed.
ALARMS AND SCANDALS (155)
Acts punished: o 1. Discharging firearm, rocket, firecracker, or explosive within any town or public place o 2. Charivari or disorderly meetings o 3. Disturbing public peace while wandering at night or engaged in nocturnal amusements o 4. Causing disturbance or scandal while intoxicated while 153 is not applicable Is Alarms and Scandals a specific intent crime? o No. It is the result, not the intent that controls. o Why does the provision say “calculated to cause alarm/danger”? “Calculated to cause alarm or danger” is an erroneous translation. o If there is discharge of firearm but there is no alarm caused, then there is no crime under Art. 155. If the firearm is unlicensed, can one be convicted under RA 8294? o No. If there is another crime committed (155 here), one cannot be liable for RA 8294.
DELIVERING PRISONERS FROM JAIL (156)
Elements? 124
o 1. Any person removes from jail or penal establishment a person confined therein o 2. Through the following means: A. By violence, intimidation, or bribery B. Through other means (lower penalty) C. Taking guards by surprise outside the establishment (lowest penalty) To what kind of prisoners does “delivery of prisoners” as a crime apply? o Applies to any prisoner, whether a detention prisoner or convicted prisoner o If the person is a convict, is there a crime when he escapes? Yes. Evasion of sentence. o If the person is a detention prisoner, is there a crime committed? No. He is presumed innocent. Is the deliverer of prisoners a principal or accomplice? o A principal under Art 156. When is the crime consummated? o The moment he steps out of the building where the cell is, however brief it may be. o Is there a crime of frustrated delivery from jail? No. o May they be an attempted delivery from jail? Yes.
If a mental retardate is transferred to a hospital, from jail, and he is delivered, is there a crime of delivery from jail? o Yes. The hospital is an extension of prison. If a person is in his house, can there be delivery? o Yes. Because under arresto menor, there can be house arrest. Who may be liable for delivery? o 1. Those helping a co-prisoner o 2. Employees of penal establishment, if without custody of the prisoner What if he has custody of the prisoner? Crime is infidelity in the custody of prisoners Is it possible that a person with custody of a prisoner is liable for delivery of prisoners and not infidelity in the custody of prisoners? Yes, if he was off-duty. o 3. Private person If a person delivered a prisoner and the prisoner had a change of heart and decided to return, is the principal for delivery still liable? o Yes. Is there a provision in the HSA that punishes a custodian who lets his prisoner escape? o Sec. 44. o Can this be committed by culpa?
125
Yes. It can be committed by negligence, as long as it is inexcusable negligence. If the detention prisoner is charged with parricide, and the person delivered him, can not the person be charged as accessory under Article 19? o Yes. The law provides that a person who helps escape a person who committed parricide, murder, or treason escape, he can be an accessory under Art. 19 to parricide, murder, etc. o So what applies now, Art. 19 or 156? Either, as the prosecutor has a choice. The prosecutor can choose ONE but not both. N.B. the Art. 19 punishment is heavier than 156 Under Art. 8 (conspiracy), it can be a crime in itself or a mode. Is it possible that conspiracy or connivance be an aggravating circumstance? What is the effect if a co-prisoner connives? o For delivery of prisoners from jail, if there is connivance, it aggravates the punishment. o So this is a THIRD character of conspiracy – not just mode, not just crime, but also aggravating circumstance. o What about bribery? Bribery in this case can be deemed a means to commit the crime of delivery.
o If the public officer accepts a bribe to release the prisoner, what are the crimes? One giving money: corruption One accepting money: 1. Bribery 2. Delivery of prisoners o But if the bribery was towards another prisoner, what is the effect? It would be a deemed a means to commit the crime. What does the phrase “other means” mean? o Example: craft or disguise o What is the effect? Arresto mayor (lower penalty) If the other means used by the principal of delivery of prisoners is a FELONY, what happens? o Art. 48 applies. Example, if there was direct assault, attempted homicide, physical injuries, etc. What is the exception to this rule? o The means provided specifically in Art. 156 (bribery), or fraud (or other means that do not constitute crimes by themselves), etc. do not attract Art. 48.
Evasion of service EVASION OF SERVICE OF SENTENCE (157-9)
How is evasion of service committed? 126
o Committed by one convicted by final judgment who escapes from prison. If a person escapes from jail, and he is arrested without warrant, would the policeman be charged with arbitrary arrest? o No, because warrantless arrest is allowed for those who escaped (Third exception) o Is evasion a continuing crime? Yes, as long as he is escaping, he is committing a crime. Can one be guilty of evasion of sentence, although not confined in a prison? o Yes: 1. If arresto menor, can spend sentence in house. 2. Sentenced to destierro and one entered the prohibited place. 3. Hospital, which is an extension of the penal institution. Elements of evasion: o 1. Convicted by final judgment o 2. Serving of sentence which consists of deprivation of liberty o 3. Escaping during sentence Can one not sentenced to Final Judgment (ex. detention prisoner) be liable for evasion of sentence? o No.
Under what circumstances may a prisoner be not liable for evasion of service of sentence? o 1. Detention prisoner o 2. Deportee who violated deportation order o 3. Youthful offender under 9344 Because rehab center is not a penal institution Can a person serving sentence for an SPL be liable for evasion? o Yes. As long as serving sentence, whether RPC or SPL. When does Article 48 apply and when does it not? o If one uses violation or intimidation, it is absorbed. o But if one commits a crime to evade, then Art. 48 can apply. A convict was granted conditional pardon. The usual condition is not committing another crime during conditional pardon. Is the violation of the conditional pardon a felony? o Yes, it is a felony. o What is the period for the condition? Remaining period of the sentence if the penalty remitted is greater than 6 years If less than 6 years, prision correccional in minimum period o Is it necessary for the prosecution for violation of conditions of pardon upon violation?
No. The C.E. can order the immediate arrest of the person through Board of Pardon and Parole. o Is a violator of the conditions of pardon entitled to ISL? No. It is provided in the ISL. Circumstances qualifying offense: o 1. Unlawful entry (by scaling) o 2. Breaking doors, windows, etc. o 3. Using picklocks, false keys, disguise, deceit, violence, intimidation o 4. Through connivance with other convicts or employees of penal institution What if the convict evaded on circumstances of a catastrophe? o And caught again, increase penalty by 1/5 o If he returns within 48 hours, decrease penalty by 1/5 For violation of conditional pardon through commission of the crime, there can only be conviction under Art. 159 after conviction.
Commission of another crime during service of penalty QUASI-RECIDIVISM (160)
127
Is quasi-recidivism (160) a crime? o No, it is a special aggravating circumstance. It is committed only by a person convicted by FJ for a crime, and he commits another crime.
o Does the second crime have to be a felony? Yes. It cannot be an SPL. The law uses nomenclature of penalties in RPC. (Maximum period of the second crime.) o Does the first crime have to be a felony? No. It can be an SPL. o If the second crime has an aggravating circumstance, what is the effect to the penalty? Since it is in the maximum, then the aggravating circumstance will result into the maximum of the maximum. o He commits another penalty. Is he a quasirecidivist again? Justice Regalado: He is a quasirecidivist again and again. If he is not a quasi-recidivist for the second time, he can commit another crime with impunity. o What if he is a recidivist AND a quasirecidivist? Since recidivism is an aggravating circumstance too – it leads to the maximum of the maximum. But the law makes mention of Art. 62, par. 5. What is this? o One is a habitual offender. One who escapes from jail, is he automatically a quasi-recividist?
o Justice Regalado: No. Because the very act of evasion of sentence is an element of the aggravating circumstance of quasi-recidivism. Under Art. 62, par. 1 – if the aggravating circumstance in itself constitutes a crime punishable by law, it is not taken into account. o J Callejo: “This still bothers me.” No clear answer. Can one be a quasi-recidivist and a recidivist at the same time? o Yes. Only difference: recividism can be offset by generic mitigating circumstances, quasirecidivism cannot. While serving sentence, a convict commits a complex crime. What is the effect? o Maximum of the maximum of the more serious crime. What is the best evidence to prove prior conviction? o Court judgment. What is the difference between reiteracion and quasi-recidivism? o Reiteracion: needs final service of two or more lesser crimes, or one graver or equal crime
IV: CRIMES AGAINST PUBLIC INTEREST Forgeries
128
FORGING THE
GREAT SEAL OR THE SIGNATURE OR STAMP OF
THE PRESIDENT (161)
Can forgery of signature or the great seal be committed by culpa? o No. There must be knowledge and intent to use the signature or great seal. What is the presumption under this law? o Presumption: possession of a document bearing the forged signature or seal – deemed to be the one who committed the forgery.
USE
OF FORGED GREAT SEAL,
PRESIDENT’S
SIGNATURE OR
STAMP (162)
Can only be committed with criminal intent, because the law uses the word “knowingly.” Who can commit this crime? o Offender here is not the forger, because the forger is liable under 161.
MAKING, IMPORTING, AND UTTERING FALSE COINS (163)
What are the means to commit this crime? o 1. Making false coins o 2. Importing o 3. Uttering with connivance o N.B. if foreign currency, amount is immaterial. When must the coin be considered legal tender? o It must be legal tender in the Philippines at the time of violation.
129
o Ex. Using a forged 1-centavo coin, when is was not out of circulation can still be punished Can the first mode (“making”) be attempted or frustrated? o Yes. o Attempted – one failed to perform all acts of execution except when there is spontaneous desistance o Frustrated – if the imitation is so imperfect, although all acts were committed. When is the second mode (“importing”) consummated? o When the boat enters port or the plane enters airspace, EVEN IF they are not unloaded or brought to customs. When is importation frustrated? o Importation may be frustrated, if before they cross territorial waters of Philippines, they are caught. What does “uttering” mean? o To offer the false coin, knowing it to be false, whether accepted or not, representing that it is genuine, with intent to defraud o The offender must not be the maker (or else, he falls under mode one), but there must be connivance How many crimes are committed if the offender makes 1,000 counterfeit 10 centavo coins, and a few US coins?
o Test is number of currencies involved What is the rule on territoriality of this crime? o This crime can be prosecuted abroad, under Art. 2. Is damage an element of utterance? o No. Damage is not an essential element of utterance
FORGING,
NOTES OR DOCUMENTS PAYABLE TO BEARER (166)
MUTILATION OF COINS (164)
Amended by PD 247, which punishes: o 1. Willful defacement o 2. Mutilation o 3. Tearing o 4. Burning o 5. Or destroying currency notes or coins Must be of legal tender Coins of foreign currency are not included
SELLING OF FALSE OR MUTILATED COIN (165)
IMPORTING, OR UTTERING TREASURY OR BANK
Two acts punished: o 1. Possession of false/mutilated coin with intent to utter o 2. Actual utterance of the coin Possession includes constructive or physical possession of counterfeit or mutilated coins There must be knowledge that the coin is false What if the one possessing with intent to utter is the counterfeiter? o If the one possessing is also the counterfeiter, this crime is absorbed under 163
130
What are covered by this provision? o 1. Treasury notes o 2. Bank notes o 3. Documents payable to bearer Three acts: o 1. Forging or falsifying treasury/bank notes/documents payable to bearer N.B. Take note of modes to commit forgery of bank notes or treasury notes, etc. under Art. 169. o 2. Importing false or forged bank notes o 3. Uttering these in connivance with forgers or importers Otherwise, see Art. 168 How can forgery be committed (Art. 169)? o 1. Giving a treasury or bank note or instrument payable to order or bearer the appearance of a true and genuine document o 2. Erasing, substituting, or counterfeiting, or altering figures, letters/words, or designs in said instrument When is there uttering under this provision? o To utter is to offer the forged document, knowing it to be false, whether accepted or not, with representation that it is genuine, with intent to defraud
P v. Balmores – a PCSO ticket is a government obligation. If the accused bore a PCSO ticket and wrote in ink the number purported to win attempted estafa, because he was not able to encash it before being caught What about blank postal money orders? o Blank forms of postal money orders are not official public documents, or treasury/bank notes. They are not certificates of obligations until filled up. What about treasury warrants? o Treasury warrant is a government obligation and is therefore covered by Art. 169 of RPC
COUNTERFEITING,
IMPORTING,
UTTERING
INSTRUMENTS
PAYABLE TO ORDER (167)
What does this provision cover? o Documents payable to order What are the acts punished? o Same three acts of making, importing, and uttering with connivance o N.B. Again, utterance here must be in connivance with forgers or importers. Otherwise, see 168.
ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER CREDIT INSTRUMENTS (168)
o 1. Treasury/bank note/ security payable to bearer or order is forged or falsified by another person o 2. Offender knows it was falsified o 3. Used OR possessed with intent to use Possession of genuine treasury notes of the Philippines with any figures, letters, or words altered or erased with full knowledge of such alteration falls under this provision What if it’s possession alone? o Possession alone, without use or intent to use, is NOT a crime under 168 RA 8484 (Access devise law) o Sec. 17 – any prosecution under this law shall be without prejudice for liabilities for violations of RPC o So one can be charged under both RPC and 8484 RA 8239 (Forgery of passports) o If it is also punishable under RPC, and the RPC crime has higher penalty, impose higher penalty. o But only one crime is committed.
FALSIFICATION OF LEGISLATIVE DOCUMENTS (170)
Elements of crime under Art. 168?
131
What is punished here? o Resolution, ordinance, or bill referred to must be a genuine one
What kind of alteration must be made? o 1. Alters the substance of that issuance o 2. With deliberate intent (malice) May a private person be liable under Art 170? o Yes. The law does not distinguish.
FALSIFICATION
PUBLIC OFFICER, ECCLESIASTIC MINISTER (171)
BY
EMPLOYEE, NOTARY,
How is a document under this provision defined? o It is a deed or instrument or other authorized paper by which something is proved, established, or set forth. (P v. Andaya) o Do 171 or 172 apply to electronic documents? Yes, by specific provision of Sec. 6(h). In fact, a document may be notarized electronically and considered a public document. If it is falsified, 171 applies o What about documents incapable of producing legal effects? A document incapable of producing legal effects cannot be foundation of a right and thus CANNOT be subject of falsification. When is there falsification through taking advantage of public position? o 1. Has official custody of the document o 2. When he intervenes in preparation of the document
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o What is the test whether there is taking advantage of public position? If he uses influence, prestige, or ascendancy of his office to commit the crime. If a public officer or employee falsifies a document, and it is not part of his duties, he did not abuse his public position. He is guilty NOT under 171, but under 172 (falsification of private individuals) o If a notary public falsifies a document outside his territorial jurisdiction, did he abuse his public position? NO. He is not a notary public outside his jurisdiction. What documents are covered by 171 and 172? o 1. Public/official o 2. Commercial o 3. Private o N.B. if Legislative, see Art. 170 What is a public document? o When an authorized person not a party thereto intervenes in a document o Also, reports made by officials in their official duty o A document notarized by a notary public without a commission – is it a public document? No. It is a private document.
o How about pleadings of parties and papers submitted to the court in the course of official judicial proceedings? Pleadings of parties and papers filed by them which are involved in actions and submitted to the custody of the court are public documents N.B. The roll of attorneys is also a public document. What is an official document? o Public officer takes part by virtue of official position, or any document which has become part of the public records o Is a passport an official document? Yes. RA 8239. o How about a private document that is falsified before being submitted to the government, as required? The falsification of a private document before submission may nevertheless be falsification of public or official document because it is destined to be such. o When one takes a civil service examination, are the exams official documents? The booklets or papers submitted to the CSC are official documents. o How about a personal data sheet submitted to the CSC for appointment to public position?
133
It is a public document, because such document is required by law. The mere fact of preparation occurred before submission does not affect its status because the document is destined to be part of public record. What is a commercial document? o Used by merchants or business to promote or facilitate trade or credit transactions o Is a cash disbursement receipt a commercial document? No. Batulanon – it is a private document. Merely a receipt issued. It is a private document – executed by private person without intervention of public notary or person legally authorized o Is a sales invoice a commercial document? Yes. May falsification of public or commercial document be committed by culpa? o Yes. Samson case – X endorsed checks without knowing the identity of the persons who were recipients of the checks. o He did NOT alter the document, he merely endorsed without due diligence. How about a private document? Can it be falsified by culpa?
o No. There has to be intent to damage or damage caused. It cannot be committed by culpa. o But not for commercial, public, or official document no need for intent to damage Layug v. Sandiganbayan vis-à-vis Flores v. Layosa. o Layug: an ordinary government employee has a time record measured through Bundy clock. Layug is a teacher in Davao national high school. He said in his record that he went to class and taught from 8:30-11:30, 1:30-4:30. But some of the time, he spent in the library. He was charged for falsification, because he said in his time record that he taught in certain times, but he was just in the library. No question, the time record is a public document. He was charged for falsification of a public document ELEVEN times. But he did not get his salary for the time he was not teaching. QUESTION: Is he guilty for falsification of public document even if there is no damage to the government? HELD: Layug was acquitted. In the prosecution of cases involving falsification of time records, there must be proof of damage to the government (e.g. salary paid for services not rendered). BUT this is weird, because
134
usually, damage is not an element of falsification of public document. o Flores: The falsification of a daily time record automatically results in financial losses to the government because it enables the employee to be paid salary and earn leave credits for services never rendered. Contrast: In Flores, damage is not an element, because potentially, the government can be damaged. o What prevails? Flores is the sounder doctrine. A COMELEC registrar, who was also a lawyer, was allowed by COMELEC to appear for poor litigants. He submitted a DTR saying that he was in the office, but he was actually in court attending to poor litigants. He was charged with falsification. o HELD: Even if he was not in the office at that time, the COMELEC allowed him to appear for poor litigants. He was performing a duty authorized by the COMELEC. There was no falsification. Spouse is a janitor, but before the janitor died, he received his check. Before the check became due, the janitor died. The widow already received it. She cashed it, thinking it was leave credits value. The check was worth X amount, though the janitor had leave credits exceeding the amount of the check. She was charged with falsification.
o HELD: Acquitted. She was acting in good faith. There was no damage to government; in fact, the government owed the janitor pa. Is the spuriousness of a document a defense against charge of falsification? o No. o X got a warrant of arrest, falsified signature of the judge, and had his wife arrested. He claimed he was not guilty of falsification because it was a spurious document in the first place. HELD: Convicted. There can be falsification even if it is a spurious document. Cannot use own acts of falsification as a defense against prosecution. If a notary public notarizes a document without commission, is there falsification of public document or private document? o Falsification of public document. o So to simplify: 1. The document remains private 2. But the crime is falsification of public document Can there be an attempt or frustration of falsification? o There can be no attempted or frustrated falsification of public or official document UNLESS the falsification is imperfect
135
o Consummated the moment the genuine public or official document is altered, or the moment the false document is executed Even if the document is not put to illegal use. Can there be falsification by omission? o Yes, the crime of falsification can be committed by omission. Here the asst. book keeper did not include in the ledger things or properties purchased by him as such. He committed estafa through falsification by omission by not indicating in the ledger his purchase of goods. May someone be convicted based solely on presumptions? o Yes. One found in possession of falsified document is presumed to be the author. What are the acts punished as falsification? o 1. Counterfeiting or imitating handwriting, signature, rubric (¶1) o 2. Causing to appear that persons participated, etc (¶2) o 3. Persons in fact participated in proceedings, but accused make it seem that they said/did some things they did not do (¶3) o 4. Making untruthful statements in narration of facts (¶4) o 5. Altering true dates (¶5) o 6. Making alteration or intercalation to genuine document which changes its meaning (¶6)
o 7. Issuing copies (¶7) o 8. Intercalating instrument or note (¶8)
Counterfeiting or imitating handwriting, signature, rubric (171 ¶1)
What does “imitating” cover? o It can also cover “feigning.” Feigning means the forgery of a signature that does not in fact exist. When does one become guilty for falsification under this provision? o For one to be guilty for falsification under this provision, it is not necessary that the imitation of writing, handwriting, or signature be perfect. It is only necessary that the two writings bear some resemblance to each other o There can be no falsification of public document unless there is an attempt to imitate the genuine signature of another What if the false signature did not look like the real one? o One is guilty of falsification even if he did not imitate the signature of the person in the document, as long as there is a DIFFERENCE between the genuine signature of another and the falsification.
Causing to appear that persons participated, etc (171 ¶2)
What is punished here? 136
o Falsifying a document by causing it to appear that a person or persons participated in any act or proceeding when in fact, they did not. X had an uncle and auntie. By 2000, his auntie and uncle died. He executed three documents (deed of sale, deed of conveyance) – all in the same occasion. In each document, the dead spouses sold to the vendee parcels of land. Then, Lastrilla signed the signature of his dead uncle and auntie, and antedated the deed. Is this falsification? o Yes, under this paragraph (Art. 171 par. 2). o The uncle and auntie are both dead. So this provision applies even if those who were made to appear to participate are already dead. o But there is only one crime, even if there were several modes. Accused was a COMELEC registrar. He made it appear in the list of voters that certain voters were listed, when they were not, and that they voted, when they did not. What is the crime? o Guilty under this same provision AND o Liable under Omnibus Election Code Can this crime be committed to conceal another crime? o Yes. o Ex. X was an accountable officer and he misappropriated funds of government. To conceal malversation, he falsified receipts to
show that people received some amounts, when they did not. o Guilty of two crimes: 1. Malversation 2. Falsification under this paragraph X was paid by examinee in CSC to take the exam on his behalf and pose as him. Is he guilty of falsification? o Yes. He made it appear that another person participated in the exam, when he did not.
Persons in fact participated in proceedings, but accused make it seem that they said/did some things they did not do (171 ¶3)
X changed the answers of a Bar examinee, Y, then she corrected the answers. What is the crime? o X was guilty under this provision. o Y was guilty as an accomplice, by knowing that X committed the crime for him.
Making untruthful statements in narration of facts (171 ¶4)
What are the requirements: o 1. Offender is a public officer or employee o 2. Untruthful statements in narration of facts o 3. The facts must be absolutely false What if there is some color of truth in the falsification? o If there is color of truth in it, he is not liable under this paragraph. 137
o If there is colorable truth to the statement, one is not criminally liable. If there is a color of truth to it, there can be no criminal intent. o There is no F of public document if acts of accused are consistent with GF, even if it may be false. Color of truth indicates GF. X was Chinese, but he declared himself as Filipino. The clerk wrote down “Filipino” in the residence certificate. Is the clerk guilty of making untruthful statements? o Clerk is NOT guilty – he had no criminal intent and relied on the Petitioner. o Petitioner is guilty under this paragraph as Principal by Direct Inducement. What if it was altered to speak the truth? o There is no falsification (e.g. there is error in cedula, then altered to speak the truth. There is alteration, but no falsification) What is the legal obligation contemplated under this provision? o The legal obligation may spring not only from a law or a regulation/rule promulgated by authorities (e.g. CSC, COMELEC) Ex. Guilty of falsification under this provision, if X falsified a personal data sheet, which is a document required to be submitted to the CSC under its rules. The mere fact that she was not hired is inconsequential.
The duty to make truthful statements, what is it based on? o 1. Law o 2. Ordinance, as long as it requires such making of truthful statement o 3. One issued by a government agency o Ex. A government employee who falsely stated in ITR that he has 2 dependents, when just has one, so that he can pay less taxes: the government employee is guilty of falsification of official document. What is the required intent? o There must be deliberate intent to make a false narration of facts, so there is no culpa
Altering true dates (171 ¶5)
May this crime be committed by culpa? o No. Intent is essential to the crime. What dates are contemplated by this provision? o “Dates” referred to here are those that have legal efficacy; ex. Date when obligation is due, date when persons were married.
Issuing copies (171 ¶7)
Making alteration or intercalation to genuine document which changes its meaning (171 ¶6)
o 3. Alteration or intercalation made in document to speak of something that is false What is the duty of one making the alteration? o One making the alteration must explain the same. What alterations consist of: o Erasure o Interlineations o Additions o Substitution of any material matter in a document or instrument When is the alteration of intercalation NOT a crime? o 1. Alteration or intercalation was made to make the document speak the truth o 2. The alteration or intercalation did not change the substance of the document. May this crime be committed by culpa? o No. There must be criminal intent. It cannot be committed by culpa. Good faith is a proper defense.
Elements: o 1. A person changes a document or intercalates an entry or statement therein o 2. The alteration or intercalation was made in a genuine document 138
Two modes of committing this crime? o 1. There is no genuine original of the copy of the document issued in an authenticated form o 2. There is a genuine document, but alteration of the copy as to not correctly reflect the original
Done with dolo or with deliberate intent Public officer or notaries-public. Sec. 19, Rule 132 of Rules of Evidence enumerates these documents.
Intercalating instrument or note (171 ¶8)
Intercalated document must be false and change the sense of the document or official book.
Number of crimes of falsification committed:
One may be liable for estafa through falsification of a public or official document, but not estafa through falsification of private document. There are as many crimes of falsification as the number of documents falsified o If there is only one document falsified, but under multiple modes, there is only one crime of falsification o But in P v. Pomferada – someone falsified the roll of attorneys, by inserting three persons there; he committed three counts of falsification, even if made on the same roll of attorneys
FALSIFICATION
BY
PRIVATE
INDIVIDUALS
AND
USE
OF
FALSIFIED DOCUMENTS BY PRIVATE INDIVIDUALS (172)
Two modes under paragraph 1: o 1. Private individual falsifying a public, commercial, or official document no need for damage or intent to damage
139
o 2. Private individual falsifying a private document there is need for damage caused or intent to cause damage What does “damage” cover? Damage includes material damage and damage to the credit or honor of a private person So it is not confined to mere material damage o When can a public officer fall under 172? If a public officer falsifies a document, without abuse of official position, he can be liable under Art. 172 The offender did not gain any profit from the falsification of private document. But intent is an internal act. How does one establish this intent? o There must evidence independent of the falsification to establish intent. o Ex. May consist in an attempt to encash or use the document, or verbal or physical acts indicating intention behind falsification Under paragraph 2 (“use of falsified documents”), how is the crime committed? o 1. Person who shall knowingly introduce in evidence in any judicial proceeding o 2. or using a falsified document, to cause damage or with intent to cause damage A private individual who falsified a document, and also used the document under a judicial
proceeding, is he liable under paragraph 1 or paragraph 2? o Under the 2nd paragraph, the person using the document is other than the author of falsification. If the falsifier himself uses the document in a judicial proceeding, he is liable for falsification (par. 1) and not for use If a government employee falsifies his personal data sheet by making it appear that he passed the CSC exam, when in fact he did not, and he used the personal data sheet to apply for a position with the government (therefore, not in a judicial proceeding); how many crimes of falsification did he commit? o Two crimes: o 1. Falsification o 2. Use of such document in a proceeding other than a judicial proceeding If it was used in some other purpose or proceeding, is there need to establish damage caused or intent to cause damage? Yes. o CONTRA: If a falsified document was used in a judicial proceeding, is there need to establish damage caused or intent to cause damage? No.
FALSE
MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR
SERVICE, ETC. (174)
Who are punished here? o 1. Physician who issues false medical certificate o 2. Public officer who issues false certificate of merit or service, good conduct, and the like o 3. Private person who falsifies either type of document (lower penalty)
USING FALSE CERTIFICATE (175)
What is punished here? o Person who uses the certificate issued above What is material? o He must do it knowingly and with intent
INTRODUCTION
INTO THE
PHILIPPINES
OF ANY INSTRUMENT
INTENDED TO BE USED IN COUNTERFEITING (176)
140
In a situation where the instruments imported could not be used for the intended purpose, is it an impossible crime or a crime under Art. 176? o Still 176. As long as there was intent to use and there was importation. Must one import a complete set? o No. If the instruments brought into the country cannot be used on their own, but can be used alongside other instruments, there is violation of the law.
Other falsifications USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS (177)
2 modes of committing the crimes: o 1. Usurpation of authority o 2. Usurpation of official functions When a public officer or employee has already retired or resigned but continues to do his duties, is he liable for usurpation of functions? o Yes. o Ex. A notary public who notarizes a document when his commission has expired violated this provision For usurpation of authority, what must the prosecution prove? o 1. Accused is aware he is not a public officer o 2. He falsely represents himself to be such o 3. Such person has performed pertaining to an act of person in authority or agent of PIA Is good faith a defense? o Yes. Felony here is committed by dolo. GF is a defense. Situations involving complex crimes: o X pretended to a public official in order to molest a minor. What is the crime? Complex crime of usurpation of public authority with seduction o X pretended to be a BIR agent and showed falsified BIR ID. What is the crime?
Complex crime of usurpation of public authority with falsification Situations where usurpation is just a mode: o X pretended to be a public official to commit robbery. What is the crime? Just robbery. Take note of Art. 299-A par. 4: Robbery may be committed through pretense of exercise of public authority. It is NOT a complex crime. Usurpation is an essential element under this mode. o X kidnaps another to deprive her of liberty, by pretending to be a public officer. Is he liable for complex crime of usurpation and kidnapping? No. Usurpation of authority is a mode of committing crime of kidnapping. o Person pretending to be authorized to issue passports: Liable under RA 8239. (Phil. Passport Law)
PUBLIC USE OF FICTITIOUS NAME (178)
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What are the two paragraphs? o 1. Fictitious name – purposes: 1. To conceal a crime 2. To escape judgment N.B. Includes criminal or civil. The law does not distinguish.
3. To cause damage o 2. Person who conceals his true name or other personal circumstances Elements under first paragraph? o 1. Publicly uses fictitious name o 2. With any of the mentioned purposes o Is motive an essential element? Yes. Here, motive is essential element. If a person uses a fictitious name publicly, but without these purposes, what crime is committed? o Same crime, but under Par. II. What is meant by “publicly”? o Includes use in an official or public document What is meant by damage? o Not equivalent in falsification of private document. o “Damage” here is not to a particular person but to public interest. Public interest is something in which the public, community at large, has some pecuniary interest by which some legal rights are affected. Use of fictitious name as a mode: o If one uses a fictitious name to defraud another, what crime is committed? Estafa. Art. 315-2(A) o What if the fictitious name is used to commit robbery?
Then it’s just robbery. Under Art. 299(A)-4, robbery may be committed through use of fictitious name to gain entry into the house of another. Again, the use of fictitious name here is a mode to commit robbery. o If one uses a fictitious name in a narration of facts in a public or official document, what crime is committed? Falsification of public, commercial, or official document, because penalty for use of fictitious name is already integrated in the former. (171/172) o What if a person uses a fictitious name to obstruct justice? Violated PD 1829 (“knowingly uses a fictitious name to delay apprehension of suspects”) X a convict serving sentence, and Y, in jail, substitutes for X, to allow X to escape. Y took his place and claimed to be the escapee by stating his name. What crime did the first person commit? o Evasion of sentence, complexed with use of fictitious name The security guard noticed that X was gone, but did not ask the name of Y. What crime? o Justice Albert:
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o There are as many crimes as the number of fictitious names used
Y is guilty of use of fictitious name under this provision o Justice Reyes: Y guilty with delivery of prisoners from jail AND of use of fictitious name to conceal the escape of the prisoner X guilty of evasion AND use of fictitious name to evade service o Justice Regalado: Y is guilty of delivery of prisoners from jail. Use of fictitious name by the replacement is absorbed by crime of delivery. X is guilty of evasion of service of sentence, but not use of fictitious name. o Justice Callejo: If Y did not use a fictitious name to help the convict escape, he is ONLY guilty for delivery of prisoners (since he did not say a fake name). There was NO overt act of using publicly a fictitious name. If Y uses a fictitious name, art. 48 will apply X guilty of evasion of service of sentence complexed with use of fictitious name How many multiple crimes of use of fictitious name be committed?
C.A. 142
What is C.A. 142? o Anti-alias law What are the punishable acts? o Cannot use a name different form that registered in the LCR or used in baptism o Or for aliens, what was registered with the Bureau of Immigration What are the exceptions? o Literary, cinema, TV, radio, entertainment purposes, and other athletic events where use of a pseudonym is a normally accepted practice o How to secure an alias? Need judicial approval for at most, one alias. Same proceedings as change of name.
ILLEGAL USE OF UNIFORMS OR INSIGNIA (179)
What is punished here? o Public and improper use of insignia, uniforms, or dress pertaining to an office not held by such person or to a class of which he is not a member
FALSE TESTIMONIES (180-2) 143
What are the three types of false testimonies?
o 1. False testimony against defendant (180) o 2. False testimony favorable to defendant (181) o 3. False testimony in a civil case (182) o 4. False testimony is other cases (183A) o 5. Perjury (183B) o 6. Offering false testimony in evidence (184) False testimony against a defendant (Art. 180) – when does this provision apply? o Only applies for crimes under the RPC or SPLs that use nomenclature of RPC penalties, because the penalty for false testimony is dependent on the RPC graduation What are the requisites? o 1. The testimony must be complete Must have been subjected to direct and cross examination (unless latter is waived) o 2. There is intent to give false testimony Thus, only committed through dolo. GF is a defense. Villanueva v. SOJ – witness must be aware that his testimony is false. Unless he is aware, he may invoke GF. Knowledge that his testimony is false is internal act. How can you establish this? State of mind may be determine by things he states or does, proof of motive to lie, and objective
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falsity itself (if the statement is egregiously false), or proof from other facts. o 3. False statement must be related to the subject of inquiry, which legitimately affects the defendant Not necessary that witness’s testimony directly affects the decision. It just needs to affect a material fact. Does this provision include testimony on qualifying and aggravating circumstances? Yes. o 4. There is a judgment of conviction or acquittal Because penalty depends on the penalty imposed on the convict. It does not matter whether the accused is convicted or acquitted. It the intention of the accused that suffices. When will Art. 180 not apply? Will not apply if accused in main case is convicted and is convicted for a penalty less than correctional penalty, or a fine. The liar may not be prosecuted under 180, but can be prosecuted under perjury. Who is a “witness”? o Includes injured party or any witness
o And even one of the accused, as long as he testified for the prosecution. If the accused gave false testimony in favor of himself, is he liable under 181 (favorable false testimony)? o No. o Unless, X was not just disclaiming guilt, but pinning it upon another. (“Hindi ko pinatay yan. Siya po ang pumatay!”) What is the nature of false testimony as a crime? o It is a formal crime. The crime is committed as soon as the false testimony is given. o Thus, retraction does not extinguish the crime already committed. o UNLESS it was spontaneously done in the same testimony – there is GF Relate to RA 6981 – witness protection program: o Person in WPP who testifies falsely loses immunity and can be liable for perjury o But NOT art. 180-182 of the RPC HSA, sec. 47: o Any person knowingly furnishing false testimony in any proceeding involving terrorism is liable not under 180-182 but for the crime committed False testimony in a civil case (Art. 182): o Here, the offender may be a party litigant, or a witness for a party Elements of 182:
o 1. Given in civil case What is covered by “civil case”? Ordinary action Supplementary proceedings (Execution of judgment, prohibition) Petition to annul judgment What is not covered? Special proceedings. Naturalization proceedings. o 2. Relating to issues raised o 3. Testimony must be false o 4. Witness knows it is false o 5. Must be malicious and given with intent to affect the issues in the case o What is the effect of a retraction? The retraction of a witness under 182 does not extinguish criminal liability. Because it’s a formal crime Is this like Article 180, where penalty depends on outcome of the case? o No.
FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION (183)
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Elements? o 1. Knowingly making untruthful statements o 2. Not covered in the prior provision
o 3. Under oath or affirmation, or in an affidavit upon a material matter before a competent person authorized to administer an oath when required by law Where does perjury apply? o 1. Light penalties o 2. Other proceedings (ex. Special proceedings) o 3. Etc. Can perjury be done by culpa? o No. Perjury is a felony by dolo. o There must be malice. Mere assertion of false, objective fact not enough. There must be criminal intent. How about petitions? o Petition for habeas corpus is a public document. If the allegations are false, crime is falsification of a public document. o Complaint for damages filed with MTC which contains false allegations perjury o Filed petition to annul judgment and made false assertions perjury o N.B. In light of these, generally, a petition filed in court where false statements are made, the crime is perjury. Must the proceedings terminate first? o No. It is not necessary that the proceeding where the false statements were made must terminate first.
Elements? o 1. Party offers the document in evidence o 2. He knows that the document is false Malicious procurement of search warrant and use of perjured document – what crimes are committed? o 1. Malicious procurement of search warrant o 2. Perjury o N.B. These are NOT complexed (see discussion in Title II)
MONOPOLIES, ETC (185-6) RA 9184
OFFERING FALSE TESTIMONY IN EVIDENCE (184) 146
What is RA 9184? o Procurement Act of Government What are the prohibited acts for public officers under this law? o 1. Opening sealed bid prior to time appointed for opening o 2. Delaying without just cause the screening for eligibility, opening of bids, evaluation, or postevaluation of bids, and awarding beyond allowable period o 3. Unduly influencing or using undue pressure on the Bids and Awards Committee to accept a particular bid o 4. Splitting of contracts which exceed purchase limits and competitive bidding
o 7. Participating in bidding using another’s name or allowing another to use one’s name o 8. Withdraw a bid after it has been named highest-rated or lowest-calculated without just cause or to cause the bid to be awarded to another Includes non-submission of final requirements after acceptance, such as security, etc.
o 5. Rejecting bids due to manifest preference for a closely related bidder o Can they still be prosecuted under RA 3019? Yes. What are the prohibited acts for private individuals and colluding public officers? o 1. Two or more bidders agree and pre-arrange multiple bids where one is obviously better than the other to give semblance of competitive bidding o 2. One bidder maliciously submits different bids through different persons, to pretend that there is competitive bidding o 3. Entering into contracts where one party refrains from bidding or withdraws one already made o 4. Schemes that naturally reduce competitive bidding o What are the accessory penalties for offenses #1-4? Public officer suffers temporary or perpetual DQ from public office The private person cannot transact with government again o 5. Submitting false eligibility requirements o 6. Submitting falsified information in bidding documents
V: RELATED TO OPIUM
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What changes did the DDA bring about to this title? o 1. The penalties do not use nomenclature of RPC anymore o 2. The penalty is no longer based on quantity involved except for possession o 3. Use of dangerous drugs now has a graduated penalty First offense is 6 months rehab Second offense onwards has imprisonment already What if possession and use concur? Possession applies, not use What if sale and possession concur? Sale applies, not possession
o 4. Anyone charged under DDA cannot avail of plea bargaining What about probation law? Only those convicted for drug pushing or trafficking are exempted o 5. Accessory penalties apply not just after conviction but even during appeal What is the new classification of drugs? o 1. Dangerous drugs o 2. Controlled precursors and essential chemicals Who are the new additional offenders? o 1. Financier – person who pays for or underwrites illegal activities in the DDA o 2. Protector/coddler – person who knowingly and willfully consents to the unlawful acts in the DDA and uses his power or position to shield, harbor, screen, or facilitate escape of any person who has violated the DDA What are the new offenses? o 1. Illegal chemical diversion of controlled precursors and essential chemicals Sale, distribution, supply, or transport of legitimately imported, manufactured, or procured CPECs to any person or entity manufacturing DDs o 2. Failure to maintain and keep original records on transactions with DDs or CPECs
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o 3. Misappropriation, misapplication, or failure of public officer or employee to account for confiscated DDs, plant sources, paraphernalia or benefiting from these o 4. Planting as evidence any DD/CPEC It can even be by private persons o 5. Violation of any RR of the DD Board o 6. Issuance of false or fraudulent drug test results o 7. Violation of confidentiality of records o 8. Refusal of members of law enforcement agencies or any government official/employee to testify as prosecution witness in DD cases o 9. Delay and bungling in the prosecution of drug cases by government officer or employee What are the old offenses carried over? o 1. Importation of DD/CPCE Also, importation of such through diplomatic passport, diplomatic facilities, or other means using official status o 2. Financing, organizing, managing o 3. Protecting/coddling o 4. Selling or distributing or brokering transaction of DD/CPCE o 5. Use by drug pushers of minors or mentally incapacitated individuals as couriers or runners o 6. Maintaining drug den, dive, or resort where DD/CPCE is used Being employed by or visiting such dens
Protecting or coddling such dens o 7. Manufacture of DDs/CPCEs Or instruments, equipment, apparatus, etc. o 8. Possession of DDs or instruments Aggravated if during social gatherings (see below) o 9. Use of DDs o 10. Cultivation of plants classified as DDs or sources o 11. Unnecessary prescription of DDs o 12. Unlawful prescription of DDs o 13. Attempt or conspiracy (see below) What is the rule on attempt or conspiracy to commit unlawful acts? o They have the same penalty as the consummated crime in the offense of: o 1. Importation of DDs/CPECs o 2. Sale, trade, administration, dispensation, delivery, distribution, or transportation of any DDs/CPECs o 3. Maintenance of a den, dive, or resort where DDs are used o 4. Manufacture of DDs/CPECs o 5. Cultivation and culture of plants which are sources of DDs/CPECs o N.B. these mostly relate to production and sale/distribution
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What are the qualifying or aggravating circumstances? o 1. Crime committed under the influence of drugs o 2. Possession of DDs or equipment aggravated if possessed during parties, social gatherings, or meetings, or in the proximate company of at least two persons What is the nature of violations of the DDA? o Malum prohibitum What are the new programs for treatment and rehab of drug dependents? o A drug dependent or any person who uses DDs may apply to the DD Board for treatment and rehab. Effects: 1. Exempted from criminal liability 2. Placed on probation and undergo community service 3. Charged for violation of use of drugs o Or compulsorily confined under the Compulsory Submission Program – by petition of the DD board to the RTC When is the only time the RPC has any effect? o When the accused is a minor who is convicted of Reclusion Perpetua (because otherwise, the other offenders are charged with Life Imprisonment or other non-RPC-nomenclature sentences)
VI: CRIMES AGAINST PUBLIC MORALS
GRAVE SCANDAL (200)
What is punished here? o Highly scandalous conduct Where must it be commited? o Must be in a public place. Must be in public view o Unless there is an element of publicity, there is no grave scandal. Ex. the accused and her paramour were committing adultery in a private place (kitchen of woman’s house)
RA 9995 – law punishing video and photo voyeurism (amended Art. 201):
IMMORAL DOCTRINES, OBSCENE PUBLICATIONS, ETC. (201)
o It is a crime under this provision. There is no art here. What must be the nature of commercial distribution? o It must be distributed widespread or to many people, because if it is isolated, then it does not disturb the law
What is the test of obscenity? o Whether it shocks the ordinary and common sense of men. o Whether the tendency of the matter is to deprave or corrupt those whose minds are open to those immoral influences. Is nudity obscene per se? o Mere nudity in art or sculpture is not obscene since this can be a work of art. o If the nude representations are sold for commercial purposes and not the sake of art, it may fall under this provision on obscenity. How about actual exhibition of sexual intercourse in public?
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What are the crimes punished under RA 9995? o 1. Taking a video or photo of sexual act without consent of person o 2. Capture image of body parts (breast, buttocks, genitals, etc.) without consent of the person N.B.: For above, there must be reasonable expectation of privacy which was violated If a couple goes to a motel, is there an expectation of privacy? Yes. That is why they went to the motel. What is “Reasonable expectation of privacy?” The person concerned believes that she can disrobe in privacy without being concerned that she
would be captured in photo or video o 3. To sell, copy, or cause distribution of the video or photos – even when there is consent by the persons involved o 4. To broadcast in print, radio, or video these sexual acts (even in VCD or DVD) o N.B. So lack of consent is not an element when the material is being distributed already Can this video or photo be submitted as evidence? o No. This photo or video is inadmissible for evidence. o Exception: police can apply to court for an order to take a photo or video of a couple for investigation and apprehension of those committing this crime. Relate to RA 7610 - Child abuse law: o Those who coerce or induce a child (person under 18, or over 18 but suffering from mental or physical defect) – hired to perform in indecent shows or obscene publications o Here, the child is exempt from punishment because the child is a victim. o Who are liable? Ascendant, guardian, any person entrusted with care of child Person who induces or coerces the child
VAGRANTS AND PROSTITUTES (202) 151
Amended by RA 9344, Sec. 58: o Persons below 18 are exempt from criminal liability from prosecution for vagrancy or prostitution o Or mendicancy under PD 1563 Who are vagrants? o 1. Person with no apparent means of subsistence, but has physical ability to work, and who neglects to apply himself to some lawful calling o 2. Person loitering or wandering about with no visible means of support o 3. Idle person who lodges in houses of ill repute; ruffians or pimps o 4. Loitering in inhabited or uninhabited place belonging to another without any lawful or justifiable reason o 5. Prostitutes RA 7610: Who are liable? o 1. Pimps o 2. Those other persons that procure child prostitutes or encourage them o 3. Those who engage in sexual intercourse with children o 4. Those deriving profit or advantage (e.g. owners of establishment) Further amended by RA 9208 – anti-trafficking of persons act of 2003:
o Covers sex-tourism, qualified trafficking of persons, etc. When is trafficking of persons qualified under RA 9208? o 1. If the trafficked person is a child (under 18 or over 18 but has mental or physical defect) o 2. Offender is in military or law enforcement agencies o 3. If the offended person dies, becomes insane, gets AIDS/HIV, is mutilated What are the civil liabilities of the offender? o Offender liable to trafficked person – from personal properties o If insolvent, take value from those proceeds and instruments derived from trafficking, that are confiscated What are the special features of RA 9208? o 1. THERE CAN BE INDEPENDENT ACTION for civil liabilities under this law o 2. Exempt from filing fees
R.A. 7610 – SPECIAL PROTECTION AGAINST CHILD ABUSE
What are the punishable acts of child prostitution? o 1. Promoting, facilitating, or inducing child prostitution When is there attempt to commit child prostitution under this paragraph?
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Person who is not a relative of the child is found alone with the latter inside a room, inn, vehicle, or secluded area under circumstances that would lead a reasonable person to believe the child is about to be exploited o 2. Those who commit sexual intercourse or lascivious conduct with child exploited in prostitution When is the offender charged under the RPC instead? When the child is under 12, which is statutory rape When is there attempt to commit child prostitution under this paragraph? Receiving services from child in massage parlor, sauna, or health club, etc. o 3. Deriving profit or advantage from child prostitution What are the punishable acts of child trafficking? o 1. Any person who engages in trading and dealing with children, as in buying and selling children for consideration o 2. Qualified if victim is less than 12 When is there attempted child trafficking?
o 1. Child travels alone to foreign country without valid reason, clearance from parents or guardian, or DSWD o 2. Person or institution recruits women or couples to bear children to be trafficked o 3. Doctor, midwife, nurse, or other hospital employee simulates birth for purpose of child trafficking o 4. Person engages in act of finding children among low-income families, hospitals, clinics, etc. for purpose of child trafficking
Crimes committed by judgment
VII: CRIMES COMMITTED BY PUBLIC OFFICERS WHO ARE PUBLIC OFFICERS? (203)
Includes subsidiaries of GOCCs, whether created under Corporation Code or original charters. Whether stock or non-stock, vested with functions relating to public needs (governmental or proprietary), owned by government either wholly or partially
What is the coverage of “public officers” under this Title? o Definition in 203 is extensive and comprehensive. Embraces all public servants, from highest to lowest. Removes distinction between officers and employees. o Definition includes those occupying positions in government, highest to lowest, permanent or temporary. o Includes those with positions in GOCCs, including GSIS, Postal Service.
What are the crimes under this subdivision? o 1. Knowingly rendering an unjust decision (204) o 2. Rendering unjust decision through inexcusable negligence (205) o 3. Unjust interlocutory order (206) o 4. Malicious delay in administration of justice (207) o 5. Dereliction of duty (prevaricacion) (207) o 6. Betrayal of trust by attorney (208)
KNOWINGLY RENDERING AN UNJUST DECISION (204)
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To which judges does this provision apply to? o Applies to the judges of the first and second levels (MTC, RTC) o But not justices of appellate courts, SC, or Sandiganbayan (those who render collective judgment after due deliberation) What is the nature of this offense?
o Judge must commit breach of positive statutory duty or performance of discretionary act with improper or corrupt motive When is a judgment unjust? o Contrary to law, not supported by evidence, made with conscious and deliberate intent to do injustice o There must be intent + overt act It is not enough that the judgment is contrary to law or that the judgment is not supported by evidence – there MUST be intent on the part of the judge to do the injustice. o Can this be committed by culpa? No. This crime is malum in se. It cannot be committed by culpa. A judge renders a decision that is not based on evidence on record, and he is aware of it. He still renders the decision. Is he ipso facto criminally liable? o No. The judgment of the court must first become final and executory before he can be charged of a violation of Art. 204. o What prerequisite proceedings are contemplated? 1. There must be a decision of an appellate court, in prohibition/certiorari/appeal impugning the validity of the decision OR
MANIFESTLY
2. There is an administrative charge against the judge for promulgating the unjust order
UNJUST JUDGMENT THROUGH INEXCUSABLE
NEGLIGENCE (205)
When is there inexcusable negligence? o If the mistake of the judge cannot be explained; there is a manifest injustice with no reasonable explanation. When is a judgment unjust? o When it is contrary to evidence on record or the law. Can this be committed by culpa? o Yes. Unlike Art. 204, a judge may be liable by culpa. When does liability attach? o Not only erroneous, but motivated by dishonestly, hatred, or some other evil motive What can the judge invoke as a defense against ignorance of the law? o 1. Good faith o 2. Absence of malice o 3. Improper consideration
UNJUST INTERLOCUTORY ORDER (206)
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Elements: o 1. Judge either: A. Renders manifestly interlocutory order or
unjust
B. Decree through inexcusable negligence or ignorance o 2. Either by dolo or culpa What is an interlocutory order? o One that does not finally dispose of the case
MALICIOUS DELAY IN ADMINISTRATION OF JUSTICE (207)
What is the nature of this felony? o Felony by dolo. Must be committed with corrupt motives or malice, by a judge in delaying the administration of justice. What is required? o Mere delay is not enough. There must be intent to deliberately delay.
PREVARICACION/DERELICTION OF DUTY (208)
Who is liable for prevaricacion/dereliction of duty? o Public officer who, in dereliction of his duties, maliciously refrains from instituting prosecution for violation of laws or tolerates commission of these acts Who are the officers liable here? o Those charged in institution or filing of criminal complaints against violators of the law Ex. Agents of the NBI, PDEA, prosecutors, OMB, special prosecutor, etc. o Those charged with enforcement of internal revenue laws are NOT included
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What is the nature of this felony? o This is malum in se. o Although the crime may be committed by tolerance, however, the law expressly requires that the public officer/employee MALICIOUSLY refrains from instituting or prosecuting violations of the law. What is the condition sine qua non before a public officer/employee can be charged with prevaricacion? o The offender whom the public officer refused to charge/prosecute must FIRST be prosecuted and convicted for that crime whose prosecution was omitted by the public officer o This is a condition sine qua non to prevaricacion What crimes does prevaricacion touch upon? o Refers to both RPC and SPL crimes What about public officers and employees not tasked with instituting criminal actions or prosecuting them? o 1. They can be liable under PD 1829 – obstruction of justice o 2. May also be held as accessories under Art. 19 of RPC Are they liable for any other crime? o Violation of Anti-Graft and Corrupt Practices law, in addition to liability under Art. 208.
What is the relationship between prevaricacion and qualified bribery? o Prevaricacion is a constituent element of qualified bribery (Art. 211-A). The officer has to be convicted of prevaricacion first of an offense punishable by RP. And then, he can be charged with qualified bribery if he accepted consideration for such dereliction.
BETRAYAL OF TRUST BY ATTORNEY OR SOLICITOR (209)
o Revealing client’s secrets learned by him through professional capacity o N.B. No need to prove damage or prejudice here Third form: o Undertaking defense of opposing party in the same case without consent of first client o No liability for lawyer if the client accedes to the lawyer representing another
Bribery
Who can commit a violation under this provision? o Can only be committed by attorney-at-law (no more procurador judicial anymore) First form of violation: o Client must suffer prejudice due to malicious breach of lawyer of professional duty, or inexcusable negligence, or ignorance o What is “prejudice”? Material or moral damage o Where else is the lawyer liable under? Sec. 4B of RA 3019 – Anti Graft and Corrupt Practices Law if the lawyer knowingly induces or causes public official to commit any of the offenses under Sec. 3 of the RA 3019 o Practicing lawyer may also be liable for bribery under this provision, if he connives with a public officer. Second form:
DIRECT BRIBERY (210)
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Three forms of direct bribery: o 1. Public Officer: agrees to perform a criminal act, in connection with official duties, in consideration of any offer, promise, gift, or present received by him or through mediation of another whether the crime is committed by him or another o 2. Acceptance of gift, etc. for a non-criminal act o 3. Acceptance of gift, etc. in consideration for refraining from doing something which is his duty to do Who commits the crime of bribery? o Crime of bribery is committed by the public officer.
o What about the gift-giver? Giver of the gift commits corruption of public officer. What are the elements of the first mode? o 1. Accused is a public officer o 2. He receives directly or through mediation of another some gift, etc. o 3. Given in consideration of commission of commission by the P.O. of some crime in connection with performance of his duties Second mode? o 1. Act in consideration for which the gift, etc. was given does not constitute a crime For the public officer to be liable for direct bribery under the 2nd form, although the act of the P.O. does not constitute a crime, the act must be unjust o 2. The act or crime relates to P.O.’s exercise of functions What if the act is not part of his duties? o If the act is ENTIRELY outside his official functions, not liable for direct bribery. o Ex. If a public officer represents to an individual that he can issue a permit, but he cannot issue it in actuality, he is not liable for direct bribery. He is liable for estafa. When is bribery consummated?
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o Because the gravamen of the crime is the offer or promise and the acceptance, the crime is consummated upon acceptance of the offer/promise. o It does not matter whether the offered thing is actually given to the officer – as long as there is offer and acceptance, there is consummation Does physical receipt per se amount to consummation? o No. o Pelegrino v. P: The offered money was left on the table. The public officer gets the envelope and says “ano to?” HELD: Mere physical receipt without any other act or sign showing acceptance cannot lead the court to conclude that bribery has been committed. There must be physical act indicating acceptance. What constitutes “gift or present”? Can it be services? o Yes. The gift or present may be in the form of services to be rendered by the bribe giver. A promise to do an act that would have pecuniary gain to the PO is a present. o It is enough if a reward or personal advantage would accrue to the PO from the performance of an act by the bribe giver, and he values it highly Can there be attempted or frustrated bribery?
o NO. – Read on as to why even if the court keeps on deciding there is “attempted bribery,” there is actually none. To be safe, however, follow the SC decisions for the Bar. o De Los Angeles v. P – lawyer promised and actually delivered to NBI money to spare his client from investigation for smuggling of aliens. NBI agent accepted the money, but the agent gave it to his superior to use as evidence against the smuggler. What crime was committed? Attempted bribery. o US v. Te Tong – Appellant offered money to Chief of Police for the latter to release certain merchandise seized from appellant in gambling. The police accepted it, but to use it as evidence against appellant. What crime? Attempted bribery as well. o P v. Ng Pek – Appellant offered money to the police to dissuade them from arresting him and charging him for violation of ordinance. Policemen refused to accept the money. What crime? Attempted bribery. o N.B.: the one guilty of bribery is the public officer, but why is it that in these three cases, there was attempted bribery? It must have been attempted CORRUPTION OF PUBLIC OFFICER.
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Must the gift be offered or can it be solicited? o The present or gift may be solicited by the public officer or employee. If does not distinguish whether offered by the bribe giver or solicited by the officer Must the act be done? o No. It does not matter. o In fact, if the criminal act was actually done by the PO, he is guilty of two crimes: direct bribery + that crime. (Article 48 does not apply.) o May he be charged simultaneously for these two crimes? Yes. o Supposing he received the bribe to commit a criminal act, but the officer did not commit the criminal act? He is liable for bribery under the first mode. It does not matter if he actually commits the crime or not. When are there multiple counts of bribery? o There are as many crimes of direct bribery as the number of times a bribe is offered and received/accepted. o Ex. LTO inspector – every time he checked and he was offered money and he accepted it to do a criminal act Mariposque case (mode 2) – A robbery was committed, and X, a police officer, told the victim: “I
will recover your property, but you have to give me PHP 5,800.” Private complainant agreed. X recovered it. He did not deliver it. o The recovery of the property was not a crime. But there was an obligation to return the property. It was his duty to do so. His refusal to do so is not a crime, but it is unjust. So it falls under Mode 2. May a private individual be liable for bribery? o Asejas was a practicing lawyer. His Japanese client came to the Philippines. He told his client “there is a complaint against you.” Immigration agents told client: “Give P25K so we won’t investigate you.” Lawyer connived with the public officers and encouraged his client to give money. He did. o HELD: Private person (lawyer) was liable for bribery for acting in conspiracy with the public officers. o N.B. The Japanese client gave money because he was afraid to be charged for any irregularity in the VISA/ violation of DDA. Shouldn’t they have been charged for robbery/extortion? Bribery must be given voluntarily. That is the difference between bribery (voluntary giving) and robbery/extortion (involuntarily, through threat) When can a judge be an accomplice?
o Judge was an accomplice when he allowed his chambers to be used for the bribery transaction between the police and the suspected criminal for illegal possession When is a judge the PDP in this transaction? o Judge was PDP when he acted as the broker in bribery
INDIRECT BRIBERY (211)
What is indirect bribery? o Public officer accepting gifts given by reason of his office Distinguish from direct bribery: o Indirect – no such agreement to perform or not perform an act. PO is not required to do anything in particular. Enough that he received the gift/present by reason of his office
QUALIFIED BRIBERY (211-A)
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N.B. Relate with Art. 208 (prevaricacion) When does this happen? o Public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed crime punishable by RP and in consideration of offer, promise, gift, etc. To what crimes does this apply? o Crimes punishable by RP Must it be RPC or can it be SPL?
o RPC crimes and SPLs using RPC nomenclature (since the felony uses “RP”) What is the condition sine qua non? o The officer must first be convicted for prevaricacion, prior to conviction for qualified bribery.
CORRUPTION OF PUBLIC OFFICERS (212)
What is this crime? o The act of offering or giving to the public officer gifts, presents, etc. It must be by reason of his public office. o N.B. the public officer is liable for bribery Can there be attempted corruption of public officers under Art. 212? o Yes, when the officer refused to be corrupted. But there is no frustration of this crime because once the public officer concurs, then the crime is consummated.
Frauds, illegal exactions and transactions, malversation
FRAUDS AGAINST PUBLIC TREASURY, ETC. (213)
What is the offense under the first paragraph? o In official capacity, entering into agreement for scheme to defraud government o When is it consummated? Consummated by merely entering into agreement by public officer/employee
with interested party or speculator – no need for damage to be proven o What is the nature of this act? Crime by dolo What is the offense under the second paragraph? o Person who is in charge of collecting taxes, licenses, fees who: 1. Demands payment of larger sums 2. Fails to issue a receipt voluntarily 3. Collecting or receiving things or objects of nature different from that provided by law o Mere demand of sums different or mere failure to issue receipts consummates the crime. Not required for State to suffer damage. o What is the nature of this act? Mala prohibita o If accountable officer demands amount in excess of what is due to the government, the amount due to the government is still public property but the excess is private property May private individuals be liable under Art 213? o Yes, if there is conspiracy with public officer.
MALVERSATION (217)
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Elements? o 1. Offender is a public officer o 2. He has custody or control of funds by reason of duties of office
o 3. Those funds/property are public funds for which he is accountable o 4. He appropriates, takes, misappropriates, consents, or through abandonment/negligence, permits another to take the same N.B. shows that malversation can be by dolo/culpa Is demand an element? o No. Demand is NOT an element of the crime. How is malversation committed? o 1. Misappropriation of public funds o 2. The taking of such property o 3. Consenting another to take such property, whether wholly or partially o 4. Permitting another due to negligence or abandonment of duty, to take such public funds or property How can this be committed? o By dolo or culpa What are the described public properties or funds here? o 1. Public funds owned by national government or any of its agencies, including LGUs, GOCCs, under the custody of the accountable officers o 2. Funds or property under custodia legis which are attached, seized, or deposited with private individuals or public authorities under the law or by orders of the courts or executive
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officers even if such funds belong to public individuals o 3. Funds and properties of public corporations or special instrumentalities such as the PCSO as well as the PNRC are public funds/properties Amounts loaned to private individuals by GOCCs are private loans and are therefore not public property or funds What is the purpose of Art. 217? o The SC ruled that the law is designed to protect the government and penalize erring public officers conspiring with private individuals resulting to loss of public funds and property due to corruption or neglect of duty What is “to appropriate”? o To use public funds or property for himself or convert the same for his personal advantage o Includes any attempt to dispose of public funds or property without any legal right What is “taking”? o Concept of taking in malversation is the same concept as taking in theft or robbery o Once a public officer has possession of public property, however brief as may be, and disposes of the same, he is liable for Malversation Who is an accountable officer?
o By reason of office, is accountable for public funds or property o Every officer of government agency whose duties permit or require the possession or custody of government funds or property and who shall be accountable therefore and for safekeeping thereof in conformity with law o What about donations made by private individuals to government, are they public funds/property? Yes, whether domestic or foreign source, when duly accepted by government (because these are remitted to the national treasury and for which a general fund is provided for). Even the proceeds are public funds or property. o What is the test to determine who is accountable? The nature of the duties CONTROLS and not the nomenclature of the office X is a municipal mayor; he went to Manila on official business. He got a cash advance. Under the LGC, if you are given a cash advance, you have to account for this when you return from your destination. If he fails to account for it, although he was not benefited. Is he liable? o HELD: The municipal mayor is an accountable officer, because under the Government
162
Auditing Code, he was obliged to account for the cash advance. Fact of lack of benefit does not exempt him from liability. X and Y are both public officers. X is accountable, Y is not. They use public funds to drink beer. o HELD: X is liable for malversation. Y is not; he is liable for theft. Can a sheriff be liable for malversation? o Yes, because those taken under official duties are in custodia legis Ex. Received money from execution sale and misappropriates it o What are the fiduciary funds of the courts? Ex. Bail bonds Ex. Funds from extrajudicial foreclosure, even if destined for a private person, since it is momentarily entrusted to the one conducting public auction o Money and property is under custodia legis if taken through official judicial processes. What is the rule under RA 9165, DDL? o Any public officer or employee who is accountable for seized/surrendered dangerous drugs is liable under the law: life imprisonment to death o Can misappropriation of seized drugs be covered by Art. 217? Not anymore. It should be prosecuted under R.A. 9165 alone.
If a private individual profits from the fruits of malversation, since he cooperates as an accessory, can he be liable? o He can be liable for malversation as an accessory. There must be concrete evidence that: o 1. He received public funds/property o 2. There is a shortage of such Can a public officer give “vale” (allowances) to a co-employee? o No. Government Auditing Code – you cannot give “vale” to a co-government employee. To tolerate such a practice is to sanction every public officer to turn public funds into a lending business. So giving “vale” is NOT ALLOWED. If one misappropriates different types of property: guns, money, etc., how many crimes are committed? o If he did everything in one occasion, just one crime o If multiple times, as many crimes of malversation as the number of times he misappropriated. o N.B. So it is determined by instances, not types of property. Clerk of court has custody of 100K consigned with court. The sheriff stole it when the clerk went out for lunch. Is the sheriff guilty of malversation?
o No. He is not the accountable officer. If the clerk is negligent, he is liable for malversation through negligence. The sheriff is liable for theft. What is the effect of restitution? o Restitution does not exempt him from criminal liability, o At best it is a mitigating circumstance analogous to voluntary surrender. If person is charged with dolo, can he be found to have committed it by culpa? o Yes. Do the aggravating circumstances of abuse of confidence and taking advantage of public position apply? o No, they are INHERENT in crime of malversation.
FAILURE TO ACCOUNT (218)
Elements: o 1. Public officer o 2. Accountable officer o 3. Required by law or regulation to render accounts to government or provincial auditor o 4. Fails to make account within 2 months
TECHNICAL MALVERSATION (220)
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Elements: o 1. Public officer
o 2. Has public fund or property under administration o 3. Has been appropriated by law or ordinance o 4. Applies such fund or property for public use OTHER THAN that for which it has been appropriated for Gravamen of crime: use or application of funds/property for some other purpose than that provided for by law or ordinance o But he did not get it for himself Is this included in malversation in 217? o No, this is separate and independent from malversation in Art. 217 Does “ordinance” include appropriations even by boards? o Yes.
not grossly, it is just ground for administrative sanction. What are the elements of evasion through negligence? o 1. Offender is public officer o 2. He is charged with conveyance or custody of prisoner (whether detention or final judgment) o 3. Prisoner escapes due to officer’s negligence Does evasion through negligence require connivance or consent of the officer? o No. This is evasion through dolo. Can private persons be liable under this provision? o Yes, for both forms, but the penalty is lower. The private person must be entrusted with custody of the prisoner.
INFIDELITY IN THE CUSTODY OF DOCUMENTS (226-8)
Infidelity of public officers INFIDELITY IN THE CUSTODY OF PRISONERS (223-5)
How is infidelity in the custody of prisoners committed? o By dolo or culpa. Dolo – with connivance or consent Culpa – with negligence o What kind of negligence is required here? One that approximates malice or deliberateness. If one was negligent but
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What are the elements of infidelity in custody of documents? o 1. Offender is public officer o 2. Document is abstracted, destroyed, or concealed o 3. The document was entrusted to the officer by reason of his office o 4. Damage or prejudice to the public interest or a third person What are the modes of committing this offense?
o 1. Officer removes, destroys, conceals documents entrusted to him Must have damage o 2. Officer breaks the seals or permits them to be broken and the officer is charged with custody of the papers o 3. Officer breaks the seals or permits them to be broken and the officer is NOT charged with custody of the papers Distinguish this from qualified theft: o Infidelity: mail matter is entrusted to the official custodian thereof o Qualified theft: mail matter not entrusted, but in the course of performance of duty, he handles mail matter and misappropriates it
OPENLY REFUSE COURT, ETC. (231)
What is openly refusing? o Promptly and unreservedly refusing to execute judgment o There must be clear and manifest refusal o And there must be criminal intent to defy superior authority What if the decision is void? o Disobedience to void or invalid decision is not a crime
OTHER REFUSALS (232-4)
REVELATION OF SECRETS (229-230)
TO EXECUTE JUDGMENT OF SUPERIOR
What is covered by these provisions? o 1. Public officer who reveals secret known to him by reason of official capacity o 2. Public officer wrongfully delivers papers he is in charge of and which should not be published o 3. Public officer who reveals secrets of private individual known to him by reason of official capacity
What are the other kinds of refusal? o 1. Disobedience to order of superior officer o 2. Refusal of assistance in the administration of justice or other public service o 3. Refusal to discharge elective office
MALTREATMENT OF PRISONERS (235)
Other offenses or irregularities
165
See RA 9745 – law on torture Who are the public officers? o Those with custody of or in charge of the prisoner o Custody must be actual and not just by fiction of law Who is the victim? o The prisoner, the detention prisoner, or convict who was subjected to maltreatment
ANTICIPATION, (236-8)
PROLONGATION, ABANDONMENT OF DUTIES
ABUSES AGAINST CHASTITY (245)
Judge who continues to exercise functions of an abolished position, in GF, is a de facto officer Abandonment must be total and under such circumstances indicating absolute relinquishment
USURPATION OF LEGISLATIVE POWERS / FUNCTIONS/ LEGISLATIVE FUNCTIONS (239-241)
o Merely recommending is not a crime under this provision. o To be liable must nominate someone not qualified
If he inflicts physical injuries without intent to kill or he kills the prisoner, he may be guilty for maltreatment of prisoners and either PI or homicide/murder
EXECUTIVE
Usurpation of one department of the powers of another Does not cover usurpation within the same department. Different provision covers such usurpation
UNLAWFUL APPOINTMENTS (244)
What is required? o Must be aware that the person nominated or appointee does not have the legal qualifications. Is good faith a defense? o Yes. Differentiate nominating and recommending:
What are the violations? o 1. Public officer solicits or makes immoral or indecent advances to a woman interested in matters pending before such officer No need for solicitation to be accepted o 2. Warden or other public officer directly charged with care/custody of prisoners or persons under arrest solicits or makes indecent advances to a woman under his custody o 3. Jail warden makes immoral advances or solicitation to the wife, daughter, sister, or relative within the same degree of affinity of any person in the custody of such warden/officer So here, the prisoner is male but the solicitation is against a female N.B. doesn’t cover mothers What if a crime against chastity or person is committed? o Art. 245 is absorbed Public Authority is an Aggravating circumstance
R.A. 3019 – ANTI-GRAFT AND CORRUPT PRACTICES ACT 166
What does RA 3019 cover? o 1. Covers elected and appointed officials and employees, permanent or temporary, whether classified, unclassified, or exempt service receiving compensation, even nominal, from government o 2. Also covers the private individuals involved in paragraphs B, C, D, and K (one who urges release of confidential information for K) What are the punishable acts? o a. Persuading, influencing, or inducing a public officer to commit a violation or offense o b. Requesting or receiving any benefit for himself or another in a transaction with Government where the public officer has to intervene o c. Requesting or receiving any benefit from another for whom the public officer will secure or has secured a government permit or license o d. Accepting or having a family member accept employment in private enterprise with pending official business with him During pendency and up until 1 year after termination o e. Causing undue injury to a party/government or granting unwarranted benefits to a party through evident BF or manifest gross inexcusable negligence
o f. Neglecting or refusing to act upon official duty with just cause to obtain some benefit or to discriminate against/favor a party o g. Entering in manifestly and grossly disadvantageous contract on behalf of Government o h. Having pecuniary interest in any transaction with Government upon whom he intervenes o i. Having material interest in any transaction or act requiring discretionary approval by a board which he is part of, even if he votes in the negative o j. Knowingly granting a benefit in favor of an unqualified person or to a mere dummy of the latter o k. Divulging confidential information What are the exceptions? o Unsolicited gifts of small or insignificant value offered or given as mere ordinary token of gratitude/friendship
R.A. 7080 – ANTI-PLUNDER ACT
167
What is the definition of “ill gotten wealth”? o Any asset, property, enterprise, or material possession of any person acquired by him directly or indirectly through dummies, nominees, agents, subordinates, associates by any combination or series of the following means:
1. Malversation of public funds 2. Receiving kickbacks or shares in government contracts 3. Fraudulent conveyance of government assets 4. Accepting equity shares or future employment in business enterprise 5. Establishing monopolies to benefit certain persons 6. Taking undue advantage of public position to enrich himself What is the plunder? o Public officer who by himself or with others amasses ill-gotten wealth through a combination or series of overt or criminal acts (see above) amounting to at least 75M pesos What is “series/combination”? o Series is the repetition of the same predicate act o Combination is the commission of at least two different predicate acts What is “pattern”? o At least two such acts within a 10-year span (from the RICO Act)
R.A. 9372 – HSA
What are liabilities of authorities? o 1. Unauthorized or malicious interception or recording of communication or conversation
o 2. Failure to turn over detainee within 3 days to judicial authorities o 3. Violating rights of the detainee o 4. Failure to keep official custodial logbook and required contents o 5. Threat, intimidation, coercion, torture in investigation o 6. Infidelity in custody of detainees o 7. Unauthorized use of classified materials o 8. Furnishing false evidence, forged document, spurious evidence o 9. Refusal or delay in release of acquitted person What are the unlawful acts related to banks? o 1. Failure to notify person of freezing of bank deposits or accounts o 2. Copying, removing, destroying joint affidavits re: frozen deposits o 3. Unauthorized or malicious examination of bank o 4. Bank officials or employees defying court authorization o 5. Unjustified refusal to restore frozen deposits o 6. Loss, misuse, diversion of frozen or seized assets
VIII: CRIMES AGAINST PERSONS PARRICIDE (246) 168
What are the elements of parricide? o 1. A person is killed o 2. The deceased is killed by the accused o 3. Deceased is the parent or child (whether legitimate or illegitimate), legitimate ascendant/descendant, or spouse of the accused o When is legitimate relationship required? NOT between parent and child. But for every other ascendantdescendant relationships, it must be legitimate. What if the child is less than 3 days old? o The crime is infanticide Distinguish between parricide and infanticide: o Basis of parricide is relationship; infanticide is age o Parricide committed only by relatives enumerated; Infanticide committed by anyone o In parricide, conspiracy cannot be applied because relationship is an essential element, so the non-relative co-conspirator cannot be charged with parricide; Conspiracy can apply to infanticide because relationship is not determining o Concealment of mother’s dishonor is mitigating in infanticide but not parricide
Can parricide be complexed with unintentional abortion? o Yes. o Ex. X stabbed his wife to death, and the wife was pregnant at the time. The unborn child dies. Is there “robbery with parricide”? o No. It’s still robbery with homicide. “Homicide” is used in its generic term, so it includes parricide and infanticide. Can it be committed by culpa? o Yes. Can be committed by culpa o Ex. Spouses were quarreling and in retaliation, the husband drove the car with recklessness, killing his wife. What if the victim did not die? o Frustrated or attempted parricide What if there is no intent to kill? o Physical injuries
DEATH UNDER EXCEPTIONAL CIRCUMSTANCES (247)
169
When does it apply? o Legally married person surprises his spouse in the act of sexual intercourse with another person and kills any or both of them in the act or immediately thereafter
o Or under same circumstance, parents with respect to minor daughters living with them, vis-à-vis seducers What must be the nature of intercourse? o Sexual intercourse must be consensual o Even if not consensual, Article 247 can still apply if husband acted due to mistake of fact. Does Article 247 cover sexual assault? o No, it only mentions actual intercourse. RA 8353 did not amend Article 247. What if the killing happens an hour later? o It is fine, if the killing was still proximate and it must be the by-product of the spouse’s rage What if the spouses were living separately? o It is not a required element so Article 247 can still apply. o But for minor daughters, she must live with her parents. What is the punishment? o Destierro, if there is death. o None, if only physical injuries o Must the court take into consideration mitigating and aggravating circumstances? No, because destierro is not a punishment per se Who cannot benefit? o One who prostitutes his spouse or daughter Is there civil liability for the killing of the paramour/spouse?
o No, because Art. 247 is an absolutory cause – a crime is committed but there is no criminal liability H caught his W in the act and told her to leave. W went inside the bedroom to take her jewelries. H said W should just leave and not take the jewelry. W tried to stab H, H stabbed W. Does Art 247 apply? o No; NOT Art. 247 because he was protecting himself. This was self-defense (Article 11). Can a relative invoke Article 247? o No. But he can invoke Article 11, defense of honor – but the act must be reasonable. What if in the course of firing upon his spouse and the paramour, the offended spouse accidentally injures a third party caught in the crossfire. What is the crime? o Article 365 applies: SPI/LSPI through simple imprudence o It cannot be attempted homicide because there is no intent to kill and moreover, the accused was not committing a crime in killing his spouse and the paramour
MURDER (248)
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When is homicide qualified to murder? o 1. Treachery, superior strength, aid of armed men, employing means to weaken the defense
o 2. Price, reward, or promise o 3. Inundation, fire, poison, explosion, etc., or by means of motor vehicles o 4. On occasion of a calamity o 5. Evident premeditation o 6. Cruelty, scoffing at the corpse What if the killing is not homicide (ex. parricide or infanticide)? o Then the qualifying circumstances above just become generic aggravating circumstances o It must be homicide What if there is more than one qualifying circumstance for homicide to become murder? o It only takes one to qualify it to murder o The other will become a generic aggravating circumstance (but since the DP has been abolished, so the penalty will not be affected – murder is already RP) May treachery apply in abberatio ictus? o Yes, if the unintended victims were helpless to defend themselves What about dwelling and nocturnity? o They are not qualifying per se, but they can be instrumental in treachery, which can qualify
HOMICIDE (249)
What is homicide?
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o Killing of any person which does not constitute parricide, murder, or infanticide, and without justifying circumstance What is the rule on intent to kill? o When consummated, it is presumed and hence need not established o When the victim did not die, intent to kill becomes a specific criminal intent which must be established BRD Otherwise, just physical injuries o When death supervenes, intent to kill is presumed from voluntary commission of an unlawful act Is there frustrated homicide through reckless imprudence? o No. Homicide means there is intent. Fall back on the concept that if there is no death, no homicide is presumed. What is the special aggravating circumstance for those who commit murder, homicide, SPI, or intentional mutilation and the victim is under 12, under RA 7610? o The punishment is RP regardless When does VAWC apply, and when does homicide/murder apply? o If there is intent to kill, it’s attempted or frustrated murder/homicide. Of course, if the victim dies, murder/homicide.
o For acts of violence without intent to kill, VAWC applies. Under RA 8294, when does illegal possession of firearms become aggravating? o For murder and homicide. Nepomuceno: included parricide in this provision, because it also involves taking of life o Whereas for rebellion/insurrection, sedition, attempted coup, it’s just absorbed as an element of the crime. o N.B. Simple illegal possession of firearms can only be committed if no other crime is committed with such firearm. If there is some other crime committed, the illegal possession is absolved (ex. alarms and scandal, attempted homicide, etc.) o What is an unlicensed firearm? 1. One without a license 2. One with expired license 3. Unauthorized use of licensed firearm in the commission of a crime o What about the use of unlawfully manufactured, acquired, or possessed explosives? If used to commit ANY of the crimes in the RPC and it results to injury or death of any person, it is an aggravating circumstance
Except in furtherance of political crimes, which absorbs the use of explosives What if a person is killed in the course of or in the occasion of carnapping? o It becomes qualified carnapping. Article 48 does NOT apply.
DEATH IN TUMULTUOUS AFFRAY (251) INJURIES IN TUMULTUOUS AFFRAY (252)
172
AND
PHYSICAL
What is the nature of Articles 251-2? o Does not define a crime. It only provides penalty. o What is contemplated here are deaths in a tumultuous affray where the actual killer (or inflictor of SPI) is not known. If the person is identifiable, then these articles do not apply. Elements of 251: o 1. Several persons means more than 2 in each group o 2. They are not groups that are organized for the purpose of attacking another Otherwise, conspiracy will apply o 3. Persons attack one another is a tumultuous manner o 4. Cannot determine who killed the deceased o 5. Person who inflicted physical injuries on the deceased can be identified o Who is the victim in 251?
“Someone” – meaning, it can be a participant or a mere passerby What about 252? o 1. Same circumstances, but nobody died; there are just SPI, and the person who actually inflicted the SPI cannot be ascertained o 2. But those who inflicted violence on the person can be determined o Who is the victim in 252? Must be a participant in the affray What if the person who committed the killing (251) or SPI (252) can be ascertained? o Then neither 251 nor 252 can apply. What if one group in a concerted and planned effort attacked the other and the latter only defended themselves? o All of the members of the attacking group are liable for all injuries on the basis of Art. 8 (Conspiracy) – the act of one is the act of all What if the group is organized? o Then conspiracy will apply too.
DISCHARGE OF FIREARMS (254)
ASSISTANCE TO SUICIDE (253)
o A person has decided to commit suicide and requested another to assist in his suicide. o If the initiative did not come from the deceased, obviously, it’s homicide or murder. If X jumps to kill himself, lands on another, and kills that other person, what is the crime? o S can be liable for the death of the other person o Others believe not liable
Is suicide a crime? o No. A person trying to commit suicide does not commit a crime, even if he fails to kill himself. What is contemplated in 253?
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Elements: o 1. Offender discharges a firearm against or towards another o 2. With no intention to kill or injure but only to scare What if there is intent to kill? o Then it is murder or homicide in attempted or frustrated stage What if there is no intent to kill but the person was hit? o Physical injuries (S, LS, or slight) What if he fires in the air? o It’s Tumults/serious disturbances (153) or Alarms and scandals (155) What if the firearm is unlicensed?
o Under RA 8294, it doesn’t matter because another crime is committed (discharge of firearms) Can discharge of firearms be complexed with S/LS Physical injuries? o Yes. This is if a random person gets hit by the discharged bullet.
o If committed by the mother of the child to conceal her dishonor, her penalty is mitigated o Also can be committed by the maternal grandparents ABORTION (257-259)
INFANTICIDE (255)
Elements: o 1. Child is born alive o 2. The child is already viable (capable of independent existence) Who is not viable? Fetus with intra uterine life of 6 months or less What if the fetus is not yet viable? Then it is abortion o 3. The infant killed was less than 3 days old Who can commit the crime? o Anyone, even if not a relative Can treachery apply as an aggravating circumstance? o No. Treachery is inherent in infanticide o As with abuse of superior strength What is the extenuating circumstance of concealment of dishonor?
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When is there abortion? o 1. Fetus is still drawing life from his mother o 2. Fetus is not yet breathing on its own o 3. Baby had intra-uterine life of less than 7 months and is killed within 24 hours What are different kinds of abortion? o 1. Intentional abortion o 2. Unintentional abortion What are the means by which intentional abortion is done and punished? o 1. Violence upon person of pregnant woman (RT) o 2. Without violence, but without consent of woman (PM) o 3. With consent of woman (PC) What else in included? o 1. Abortion practiced by the pregnant woman herself or her parents o 2. Abortion performed by a physician or midwife
o Yes.
Does the alternative-aggravating circumstance of high degree of education apply here? No, the education is an element of the crime is already punished accordingly. Can there be frustrated abortion? o Yes, according to J. Regalado What is unintentional abortion? o Another person (not the woman) causes abortion by violence, but unintentionally What does “unintentional” refer to? There must be no intent to abort the child. But “unintentional” does not refer to culpa, because there has to be prior violence with intent committed. o What if the violence was caused by imprudence? It is not unintentional abortion It is reckless/simple imprudence resulting to unintentional abortion o X stabbed and killed his wife 9 months pregnant. What is the crime? Parricide with unintentional abortion Does concealment of dishonor by the mother or maternal (almost) grandparents also apply to unintentional abortion?
Intentional abortion
Unintentional abortion
With or without violence
Always violence
By woman herself another person Offender knows pregnancy
with
physical
or Always by another person
of
the Offender may or may not know of the pregnancy
There is intent to abort
There is intent to inflict violence, but no intent to abort
DUEL (260-1)
175
Elements: o 1. Previous agreement to fight o 2. Two or more seconds for each combatant N.B. “seconds” are those who enforce the rules of the duel, who take their place if they can’t finish, etc. o 3. Choice of arms and other terms of agreement must be agreed upon by the seconds How is resulting death or injuries punished? o Homicide or physical injuries Who is the offender? o 1. Person who challenges another
o 2. Person who incites another to challenge an adversary o 3. Person who accepts challenge from an adversary to a duel o 4. Scoffing or decrying another for having refused to accept a challenge to fight or duel
MUTILATION (262)
What is mutilation? o Intentional chopping off of a part of the body which will not grow again What is controlling? o There must be intent to mutilate. So it cannot be by culpa. What if there is no direct intent to mutilate? o Just serious physical injuries What if there is intent to kill? o Frustrated homicide or parricide Can mutilation be punished under VAWC? o No, because RA 9262 says that mutilation is punished under the RPC, and not VAWC When is the punishment greatest? o When what is cut off is a body part for reproduction
SERIOUS PHYSICAL INJURIES (263) AND ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES (264)
OF
176
What is the most important thing to remember for PI? o There must be no intent to kill How is SPI committed? o 1. Wounding, beating, or assaulting another (263) o 2. Knowingly administering injurious substances or beverages (264a) o 3. Taking advantage of his weakness of mind or credulity (264b) What is the classification of injuries and penalties based on severity (most severe to least)? o Par. 1: MENTAL – insane or imbecile PHYSICAL – impotent or blind Blindness: must be complete Impotence: loss of power to procreate and not copulation N.B. if castration was done with intent to deprive the victim of the power of generation: mutilation, not SPI o Par. 2: LOST POWER TO – speak, hear, smell LOST USE OF – eye, hand, foot, arm, leg LOST BODY PART – eye, hand, foot, arm, leg
INCAPACITY TO WORK – permanent, as to job habitually engaged in o Par. 3: Deformity Injury resulted to an ugliness upon the offended that would not disappear through natural healing process LOST BODY PART – any other part ILLNESS OR INCAPACITY TO WORK – more than 90 days o Par. 4: ILLNESS OR INCAPACITY TO WORK – more than 30 days What are the circumstances qualifying SPI? o 1. Victim is any of those of parricide Except for parents, on injuries inflicted by them due to excessive chastisement o 2. Presence of any of the qualifying circumstances for murder How does SPI relate to robbery with physical injuries? o 1. Par. 1, if committed “by reason or on occasion of robbery” (RT med – RP) o 2. Par. 2, if committed “by reason or on occasion of robbery” (RT) o 3. Par. 3-4, if committed “in course of execution of robbery” (PM max – RT med)
o What is “in course of execution of robbery”? It means the robbery is not yet completely accomplished when the SPI were inflicted As opposed to par. 1-2, where it can be “by reason of or in the occasion of” robbery When does Art. 264 apply? o When injurious substances are introduced or injected into the body of the victim What is important (again)? o No intent to kill What if the substance is poisonous? o Murder (or attempted/frustrated) Can this be committed by culpa? o No. There must be intentional introduction of the substance What if the offender is not aware that the substance is injurious? o Serious physical injuries through reckless imprudence What if there is intent to kill but the quantity is not enough to kill? o SPI or LSPI o Not an impossible crime
LESS SERIOUS PHYSICAL INJURIES (265)
177
When are there LSPI? o When the incapacity of the offended party is 10-30 days, or he requires medical attendance for the same period What are the qualifying circumstances for LSPI? o 1. Ignominy or to insult or offend the victim (additional fine) o 2. Victim is offender’s parent, ascendant, guardian, curator, teacher, or persons of rank or PIA (next higher degree of penalty) o But isn’t harming a PIA direct assault? Yes. So this provision only applies if the PIA is not performing acts in the course of his duties Or if the offender didn’t know the victim was a PIA
RAPE (266-A AND 266-B)
SLIGHT PHYSICAL INJURIES AND MALTREATMENT (266)
Slander by deed What if the injury was not serious at the onset but later on becomes serious? o The crime committed can change on the ultimate injury caused o Ex. frustrated can become consummated o Ex. SPI can become homicide
When is there slight PI (from highest degree to lowest)? o 1. Incapacity of offended party is 1-9 days o 2. Physical injuries do not prevent the victim from engaging in habitual work and did not require medical attendance o 3. Maltreatment by deed X slapped Y. Y did not sustain physical injury or need medical attendance. What is the crime? o Slight PI o What if the purpose is to humiliate Y?
178
What is the nature of rape since RA 8353? o It is a crime against persons o Thus, it may be filed by the public prosecutor. Consent of the offended party is no longer needed to file. May husbands be liable for rape/sexual assault on their lawful wives? o Yes. While he has the right to use persuasion, he cannot use force, violence, or intimidation. o Wife has the right to refuse, for instance, if they are legally separated or the husband has AIDS. What are the two classifications under RA 8353? o 1. Rape o 2. Sexual assault o What if an offender inserts his organ and then his finger in a woman’s vagina? One count of rape, and one count of sexual assault
Who may be the offender and offended in rape and sexual assault? o Rape is always a man against a woman What is the exception? A woman may be guilty of rape as an accomplice or principal by indispensable cooperation o Sexual assault may be committed by or against men or women Is there frustrated rape or sexual assault? o No. It is always in the attempted or consummated stage. o It is enough that a part of the object or organ passes through the genitals, anal orifice, or mouth to consummate the crime. What is the “instrument” covered by sexual assault? o It can be a body part or other things What are the means by which rape is committed? o 1. Force, threat, intimidation What is the nature of “force”? Can be actual or constructive What is important is that the offender was able to achieve his purpose What is the nature of “fear”? It includes fear of harm or death What is the nature of “intimidation”?
It must be viewed in the eyes of the victim And sufficient enough to cause fear on the part of the victim A father raped his daughter, but claimed the latter did not resist. Is it still rape? Yes. Moral ascendancy and parental authority – substitute for violence. The same rule applies for uncles, common law husband of mother, etc. X injected a drug into Y’s body and forced sexual intercourse upon her. What is the crime? Still rape. The drug took away her ability to resist. o 2. Offended party is deprived of reason or unconscious Deprived of reason: Intellectually weak to the extent that she is not capable of giving consent to intercourse What is the extent of deprivation of reason? Need not be complete o 3. Fraudulent machination or grave abuse of authority 179
What is an example of fraudulent machinations and grave abuse of authority? The offender succeeds by pretending to be his twin brother is a fraudulent machination Grave abuse of authority is one done by an employer to an employer, teacher to student, doctor to patient, etc. o 4. Under 12 years old or demented This is statutory rape. No need for force, threat, intimidation, or other circumstances to exist. What are the qualifying circumstances? o [Weapons/military] o 1. Use of deadly weapon or by 2 or more persons It must be used to intimidate the woman, and not just mere possession o 2. Victim is under custody of police or military o 3. Committed by AFP, PNP, or other law enforcer o [Adverse effect on the victim] o 4. Victim became insane on occasion of rape o 5. Victim suffered permanent physical mutilation or disability o 6. Offender knows he has HIV, AIDS, or other STD
180
o [Relationship] o 7. Victim is under 18 and offender is a parent, ascendant, step-parent, guardian, relative by blood or affinity to 3rd degree, common law spouse of parent of victim o 8. In full view of the spouse, parent, children, or other relatives up to 3rd degree o [Specially protected victims] o 9. Victim is under 7 years old o 10. Victim has religious vocation or calling and it is known by the offender prior to the rape o 11. Victim was pregnant and it is known by the offender o 12. Victim has mental disability, emotional disorder, or physical handicap and it is known by the offender How many circumstances are needed to qualify rape? o Just one. o Are the other qualifying circumstances treated as generic aggravating? No. What is the special complex crime? o Homicide committed on occasion of rape or sexual assault Homicide is used in its generic term No such thing as Rape with Murder. It’s always Rape with Homicide. o What is “on the occasion”?
o 6. Inflicting or threatening to inflict physical harm to control woman’s actions or decisions o 7. Using force or intimidation to have the woman or child perform non-rape sexual activity o 8. Acts that cause emotional or psychological distress to the woman or her child. Ex: A. stalking B. peering or lingering C. entering dwelling against their will D. destroying property or harming animals or pets E. harassment or violence o 9. Causing mental or emotional anguish, public ridicule, or humiliation to the woman or her child
There is logical connection between the rape and homicide. There is no appreciable amount of time lapsed What is the rule on pardon? o The valid marriage between the offender and offended party shall extinguish the action or the penalty imposed. o If the offender is already her husband, then subsequent forgiveness extinguish the action or penalty.
R.A. 9262 – VAWC
What are the punishable acts? o 1. Physical harm to woman or her child o 2. Threatening to cause such physical harm o 3. Attempting to cause such physical harm o 4. Placing woman or her child in fear of imminent physical harm o 5. Attempting to have the woman or her child do something they can refuse to do, stop doing what they have the right to do, or restrict freedom of movement. Non-exclusive list: A. threaten to deprive custody B. threaten to deprive financial support C. threaten to deprive a legal right D. preventing woman from engaging in lawful profession
R.A. 9775 – ANTI-CHILD PORNOGRAPHY LAW
181
Who is a “child” under RA 9775? o 1. Below 18 o 2. Mentally incapacitated o 3. Person of age, but depicted as a child o 4. Computer generated child What is child pornography? o Representation, visual, audio, or written, of child engaged in real or simulated explicit sexual activities. o Explicit sexual activities are:
1. Genital-genital, genital-oral, analgenital, whether heterosexual or homosexual 2. Bestiality 3. Masturbation 4. S&M 5. Lascivious exhibition of genitals, buttocks, breasts, pubic area, or anus 6. Use of object or instrument for lascivious acts What are the unlawful or prohibited acts? o [Producing] o 1. Hiring or using child in porn o 2. Produce, direct, manufacture child porn o 3. Intentionally provide venue for commission of prohibited acts (cinemas, dens, private rooms, etc.) o [Selling/distributing] o 4. Sell, distribute, publish, or broadcast child porn o 5. Possess such with intent to sell, distribute, publish, or broadcast When is there prima facie evidence of intent to do such acts? Possession of at least 3 copies of child porn in the same form o 6. Distributors, theaters, telecom companies distributing child porn o 7. Pandering child porn
Selling or distributing material causing another to believe that the material contains child porn, regardless of actual content o [Corrupting children] o 8. Parent or guardian knowingly permitting the child to engage in porn o 9. Luring or grooming a child Luring: communicating through computer with child to facilitate sexual activity or production of porn Grooming: preparing child for sexual activity by communicating child porn o [Accessing child porn] o 10. Willfully accessing child porn o 11. Possession of child porn o [Conspiracy] o 12. Conspiracy to commit any of the prior acts When is there a syndicate for child porn? o At least 3 or more persons conspiring or confederating with one another
R.A. 8049 – ANTI-HAZING LAW
182
What is hazing? o Placing recruit in some embarrassing or humiliating situation such as forcing him to do menial, silly, foolish, and other similar tasks or subjecting him to physical or psychological suffering or injury
Requisites of valid initiation rites? o 1. Include no physical violence o 2. Prior written notice to school authorities or head of the organization (ex. AFP) 7 days before the initiation. The school/organization sends a representative to the rites Notice contains: 1. Names of all those subjected to activities 2. Time period o 3. Initiation must not exceed 3 days. Liable as principals: o 1. Officers and members who actually participated in the infliction of physical injury or death What is prima facie evidence of participation? Merely being present there o 2. Officers or alumni who planned the hazing although not present o 3. Parents of member whose house is used, if they knew but did not prevent such acts from happening Liable as accomplices: o 1. Owner of the place where it was done, if he has actual knowledge of what is happening o 2. School authorities who consented to the hazing or knew, but did not prevent
Which MC does RA 8049 not allow? o Praeter intentionem What are the qualifying circumstances? o 1. Recruitment accompanied by force, violence, threat, intimidation, or deceit on the recruit o 2. Recruit consented to join but wanted to quit upon learning about hazing, but was not allowed to quit o 3. Recruit was prevented from reporting to parents or authorities through force, violence, threat, intimidation o 4. Hazing committed outside school or institution o 5. Victim is below 12 years old
R.A. 9344 – JUVENILE JUSTICE AND WELFARE ACT
183
What are the prohibited acts by competent authorities? o 1. Branding or labeling the child as young criminal, juvenile delinquent, prostitute, or attach other derogatory names o 2. Making discriminatory remarks as to child’s class or ethnic origin o 3. Employment of threats of whatever kind or nature o 4. Using abusive, coercive, and punitive measures (cursing, beating, stripping, etc.) o 5. Using CIDT
o 6. Compelling child to perform involuntary servitude IX: CRIMES AGAINST PERSONAL LIBERTY AND SECURITY KIDNAPPING AND SERIOUS ILLEGAL DETENTION (267)
Elements of kidnapping/SID? o 1. Committed by private individual o 2. Kidnaps or detains another or otherwise deprives him of liberty What is the specific intent needed? Specific intent is to deprive liberty Does deprivation just involve imprisonment or locking up? No. It can include deprivation of liberty in whatever form, and for whatever length of time. No need for actual deprivation of liberty, even if free to roam around, but cannot go home or go anywhere, there is still deprivation of liberty o 3. Detention is illegal i.e., no consent was given When is lack of consent presumed? Presumed if the victim is a minor.
184
Can there be kidnapping even if the victim initially agreed to go with the offender? Yes. If at the onset, the victim agreed to go with the offender, but is thereafter prevented with use of force from leaving the place, and there was deprivation of liberty, there is kidnapping. o 4. At least one of the circumstances in Art. 267 applies When does it become Kidnapping and Serious Illegal Detention under Article 267? o 1. Detention lasted more than 3 days o 2. Offenders simulated public authority o 3. Physical injuries were inflicted on the victim o 4. Threats to kill the victim were made o 5. Victim is a female, public officer, or minor (except when accused is one of the parents) o Is length of time relevant? Only for the first paragraph (more than 3 days). Duration or length of time is irrelevant if any of the circumstance in par. 2 to the last paragraph of Art. 267. o If the private individual pretended to be a policeman, is it a police crime of kidnapping with usurpation of public authority? No. The usurpation of public authority is a mode of committing kidnapping (par. 2) so it is not a distinct offense. What are the qualifying circumstances?
o 1. Ransom is demanded Must ransom be paid? No, mere demand for ransom is enough. What can ransom encompass? Not just money but anything of value or beneficial o 2. Victim is killed or dies as a consequence o 3. Victim is raped o 4. Victim is subjected to torture or dehumanizing acts Distinguish kidnapping from grave coercion: o In grave coercion, a person is also prevented from leaving or going to another place, but there is no actual confinement or lockup of the victim. o P v. Astorga: accused and victim where strolling in school grounds where accused led victim to another town. The child wanted to leave but accused did not let her, parents saw them, not kidnapping but grave coercion Is there a complex crime of kidnapping with SPI? o No. Infliction of SPI is a mode of kidnapping (par. 3). What if the victim in kidnapping is tortured? o Under RA 9745, if the victim in crimes against persons or crimes against liberty is tortured, then the penalty imposed is the maximum. What if the victim is killed? o Special complex crime of kidnapping with homicide or o Special complex crime of kidnapping with murder
185
N.B. unlike robbery (which is always just attended by homicide), there can be special complex crime of kidnapping with murder When do such special complex crimes arise? o When there is a logical connection or intimate relation between the kidnapping and the rape or homicide. o This applies even if the rape or killing is merely an afterthought. o What if the person dies in crossfire due to police officers firing? There is still kidnapping with homicide because it’s only required that there is a “logical connection” with the kidnapping or that arises from it o What about torture? Apply RA 9745 instead. “Dehumanizing acts” – this has been amended by RA 9745, which considers torture as distinct from dehumanizing acts What if two persons were killed by reason or on occasion of the kidnapping? o There are as many crimes as the number of persons kidnapped. o So in this example, there are two counts of the special complex crime of kidnapping with homicide. What if a component crime of the special complex crime was merely attempted or frustrated?
o There is no special complex crime. The special complex crime only arises when all component crimes are consummated. o If victim subjected to attempted or frustrated homicide/murder, this is separate from the crime of kidnapping, do not use Art. 48 X and Y kidnapped Z, took his car, and demanded ransom. When they failed to get ransom, they killed Z. What are the crimes? o 1) Kidnapping with homicide for ransom. 2) Carnapping There is a special complex crime. o The SC, however, said that the crime is kidnapping for ransom and carnapping, with the homicide as aggravating circumstance. The odd thing is there is no law allowing for the homicide to be an aggravating circumstance. (P v. Muit) When is it simple murder, and when is it kidnapping with homicide? o Primary purpose of the offender is material in determining the crime. If the primary purpose is to kill, it’s murder. If the primary purpose is deprivation of liberty and the victim is killed, kidnapping with homicide. What about rape vis-à-vis kidnapping with rape? o If the original purpose is rape, and the deprivation of liberty is to fulfill this purpose, then rape. For kidnapping with rape, the rape must just happen on occasion of the kidnapping. Under PD 532 (highway robbery), what if kidnapping is committed too?
o Qualified. Penalty is (before) death. When will kidnapping of a person on the highway become a crime under PD 532? o The seizure must be directed not against a specific or preconceived victim, but against anyone (indiscriminate). o Must prove that the offenders are organized for the committing of indiscriminate kidnapping. Differentiate kidnapping from illegal detention: o Kidnapping denotes taking of a victim o Illegal detention consists in mere deprivation of liberty Can murder and kidnapping with murder arise as two separate crimes? o Yes. Ex. X killed son of employer then kidnapped and killed the other child, 2 crimes: murder and kidnapping with murder, as the killing of the first child was already consummated at the time the second was kidnapped and killed.
SLIGHT ILLEGAL DETENTION (268)
186
Elements: o 1. Offender is a private individual o 2. Kidnaps or detains another or otherwise deprives him of liberty o 3. Detention is illegal o 4. None of the circumstances in Art. 267 apply What is the penalty for anyone who furnishes the place for the perpetration of the crime? o Same penalty as the principal o What about in Kidnapping/SID?
The one who furnishes the place is liable as an accomplice. What is the special mitigating circumstance? o If the offender voluntarily releases the within 3 days from commencement of the detention: 1. Without having attained the purpose intended 2. Without institution of criminal proceedings yet o N.B. It is NOT an exempting circumstance, it just reduces the penalty o Does this special circumstance apply to Kidnapping/SID under Article 267? No. Just 268. What is one day? o 24 hours from deprivation Is the escape or rescue of the victim an exempting circumstance? o No
KIDNAPPING AND FAILURE TO RETURN A MINOR (270)
UNLAWFUL ARREST (269)
o 2. Public officers (as long as the purpose is to bring the person to proper authorities to file charges) Compare to arbitrary detention (Art. 124): o In arbitrary detention, the public officer had no intention to bring the offended to the proper authorities but merely to detain the victim What if the officer plants evidence against the victim in order to arrest him? o It is arbitrary detention through incriminating machinations under Article 363.
What is the tenor of this crime? o Arrest of another for delivery to proper authorities but without lawful cause o Usual cause: arrest without warrant but not under any of the exceptions under law o Who are the “proper authorities”? Those authorized to arrest another and file the appropriate charges Who may commit this crime? o 1. Private individuals
187
Elements: o 1. Person is entrusted with the custody of a minor person o 2. He/she deliberately fails to restore the latter to his parents or guardians Does this amend Article 267? o No. The intent in the two crimes are different. What is the essential element here? o The deliberate failure or refusal to restore minor to parent or guardian as the controlling intent o What must be the nature of this intent? Premeditated, intentional, malicious Can this crime be committed by any of the parents? o Yes. In fact, this reduces the crime (special circumstance in Article 271 but applicable here)
INDUCING A MINOR TO ABANDON HIS HOME (271)
What is the tenor of this crime? o Inducing a minor to abandon the home of his parents or guardians or persons entrusted with his custody Relate this with the crime of kidnapping and SID: o Kidnapping and SID cannot be committed by the parents of the minor (paragraph 4 of Art. 267 says “except when the accused is any of the parents”) o What if the parent “kidnapped” the minor child? It would be under 271 instead. o What if the parent kidnapped his adult child? Then Kidnapping/SID 267 can apply because the law only excludes parents if the child-victim is a minor
TRESPASS
DWELLING (280)
AND
OTHER
FORMS OF
TRESPASS (281)
ABANDONMENT OF PERSONS IN DANGER (275)
TO
What if the child is over 7? Then the liability is under RA 7610.
What are the different kinds of abandonment? o 1. Failure to render assistance to a wounded/dying person found in an uninhabited place o 2. Abandonment of one’s own victim in an accident o 3. Failure to render assistance to an abandoned child below 7 years old
188
What are the two types of trespass to dwelling under 280? o 1. Entering the dwelling of another against the latter’s will o 2. Entering the dwelling of another against the latter’s will through means of violence or intimidation What are the elements of “other forms of trespass” under 281? o 1. Person enters the closed premises or fenced estate of another o 2. It is uninhabited o 3. The prohibition to enter is manifest o 4. There is no permission secured from the owner or caretaker What if person enters the dwelling of another to commit a crime and commits such crime? o Dwelling is an aggravating circumstance and loses juridical personality as a separate crime When will there be two crimes? o If the accused enters the house not to commit a crime, but once he enters, he commits a crime. o Two crimes: trespass to dwelling and the other crime committed. Must refusal of consent be express? o No. It may be implied.
What if the occupant is a mere tenant or lessee? o It is still trespass. When is there no trespass committed? o 1. Purpose of entry is to prevent some serious harm to the person entering, occupants, or third persons o 2. Purpose is to render some aid to humanity or justice o 3. Places entered are cafes, taverns, inns, and other public houses while open What if these cafes, taverns, etc. are closed? Then there is trespass to dwelling What if the place is a disco, restaurant, etc? They can still be the object of trespass but it becomes trespass to property because these are not dwelling What are the other similar crimes? o 1. Violation of dwelling (128) o 2. Unjust vexation or light coercion (287) o 3. Theft If entry is to fish, harvest, gather, etc. o 4. Vagrancy If the property is not fenced and there is no prohibition of entry Who should give permission to enter the dwelling? o Person of sufficient discretion.
GRAVE THREATS (282), LIGHT THREATS (283), LIGHT THREATS (285)
AND
What is a grave threat? o Those made with deliberate purpose of creating in the mind of the victim a belief that the threat will be carried out o What is the nature of the threat? Infliction upon the person, honor, or property of a person or his family of any wrong amounting to a crime o Must there be a demand for money or any other condition? There may or there may not be What is a light threat? o Threat to commit a wrong not constituting a crime, with a condition imposed What are other light threats? o 1. Threaten another with a weapon or draw the weapon in a quarrel, unless in lawful selfdefense o 2. In the heat of anger, orally threaten another with some harm not constituting a crime, and it shows that he did not persist in the idea (N.B. the code says “not constituting” but that wouldn’t make sense, because par. 3 covers that. So it’s supposed to “constituting a crime”) o 3. Any person who orally threatens to do any harm not constituting a felony
Grave threat Threatens crime
Light threat a Threatens wrong
May or may not Must have have a condition condition
OTHER 189
Other threat a Threatens wrong
light a
a Does not have a condition
Indications show he persists in the crime
Threat made in the heat of anger and indications show he does not intent to persist in the wrong
Can intimidation be committed by an intermediary? o Yes What if the threats are part of the element of intimidation/violence in the commission of another crime, what happens? o The threats are absorbed. o Ex. threatening to kill unless she gave in to sexual advances of accused, the crime is rape What if the grave threats constitute force or intimidation to vacate property? o Not grave threats but usurpation of real property or real rights over property Distinguish from robbery through extortion: o 1. Grave threats depend upon moral pressure. o 2. If crime consists of securing on the spot the property of the victim, it is robbery through extortion How may multiple counts of grave threats be committed? o There are as many counts of grave threats as the number of people threatened What is a bond for good behavior?
o For grave threat and light threat (not other light threats), the court may require the offender to give bond not to molest the person threatened o If he fails to do so, he shall be sentenced to destierro Is a threat to sue in court unlawful? o No. The threat must constitute a “wrong” and suing in court is not a wrong.
GRAVE COERCION (286)
190
Elements of grave coercion: o 1. Person is prevented by another from doing something not prohibited by law or compelled to do something against his will, whether right or wrong o 2. Prevention or compulsion is effected by violence either by material force or serious intimidation that can control the will of another o 3. Person who restrains the will/liberty of another has no right to do so What are the two types of grave coercion? o 1. Prevents another from doing something not prohibited by law (preventive coercion) OR o 2. Compel him to do something against his will, whether right or wrong (compulsive coercion) o What if the subject of preventive coercion is an act prohibited by law? There is no grave coercion But it can be some other crime:
e.g. physical injuries (if applicable), unjust vexation (if no injury) When is grave coercion aggravated? o 1. Coercion in violation of right of suffrage o 2. To compel another to perform or not perform any religious right Distinguish between grave coercion and SID/K? o Grave coercion – no intent to deprive another of his liberty o SID – there is intimidation, but to deprive liberty What if the coercion is to prevent people from seeking grievance or peaceably assembling? o Article 131 (disturbance or prevention of peaceful meeting) What if the threat is against the owner of a property intending to take his property from him? o Article 312 (usurpation of real property or real rights over property) May be liable for grave threats or homicide (if the person is killed), as the case may be. But it may be absorbed by the “violence” provision in Art. 312 What if there is lewd design? o Forcible abduction, not grave coercion Distinguish between threat and coercion: o Threat:
1. Threatened harm/wrong is future and conditional 2. May be done through intermediary or in writing 3. By means of intimidation which is future and conditional o Coercion: 1. Threatened harm/wrong is immediate, personal, and direct 2. Cannot be done through intermediary or in writing 3. Committed by violence, although it may be brought about by intimidation if serious enough, direct, immediate, and person (such as intimidation with a firearm) Illustrate the distinction: o Threat: “if you are still here when I come back, I will kill you.” (future and conditional) o Coercion: “if you do not get out, I will kill you.” (immediate, direct, and personal)
LIGHT COERCIONS/UNJUST VEXATION (287)
191
What are light coercions? o Person, by means of violence, seizes anything belonging to his debtor to apply for payment of the latter’s debt What is unjust vexation?
o Human conduct while not leading to physical harm or without use of force or intimidation, leads to annoyance, irritation, disturbance to victim (“nangungupal”) o What if there is a crime against property? There is malicious mischief, not unjust vexation. Unjust vexation requires crime against personal security. How can this crime be committed? o Crime of dolo only Distinguish unjust vexation and attempted rape: o Determine if the act was done in pursuit of rape or merely to distress/annoy. o Ex. in Baleros v. P, X covered M’s face with a piece of cloth soaked in chemical. There was no proof however that it was in pursuit of rape. He was charged with attempted rape, but was only convicted for unjust vexation. o What is the determining factor? The person’s intent
minors with respect to the papers or letters of the children o 2. Manager or employee learns secrets of principal and reveals them (291) o 3. Person who reveals trade secrets to the prejudice of the owner (292) Includes information not patented but known only to a few individuals R.A. 4200 – ANTI-WIRETAPPING ACT
DISCOVERY AND REVELATION OF SECRETS (290-2)
What are the punished acts? o 1. Private individual, to discover the secrets of another, seizes his papers or letters and reveals the contents (290) Lower penalty if there is no revelation NOT applicable to parents, guardians, persons entrusted with custody of
What kind of communication is covered by RA 4200? o Only private communication is expressly prohibited to be recorded secretly by any person including one party to that conversation o So public conversations or statements are not covered When is recording allowed? o When there is consent by all those involved in the conversation Does the law cover tape recorders or phone extensions? o Tape recorders are included, phone extension lines are not
RA 9208 – ANTI-TRAFFICKING OF PERSONS ACT
192
What are the punishable acts? o 1. Recruit, provide, or receive persons for the purpose of prostitution, porn, sexual
exploitation, involuntary servitude, forced labor, slavery, debt bondage Including those in the pretense of overseas employment o 2. Introduce or match for money a Filipina woman with a foreign national for marriage or for the purposes above o 3. Offer or contract marriage, real or simulated, for the purposes above o 4. Undertake or organize tours and travel plans with tourism packages or activities pursuant to the above activities o 5. Maintain or hire a person for prostitution or pornography o 6. Adopt or facilitate the adoption of person for above-mentioned purposes o 7. Recruit, hire, transport, abduct person for organ-harvesting o 8. Recruit, transport, or adopt a child for armed activities here or abroad What are the acts that promote trafficking of persons? o 1. Knowingly lease or sublease property to promote trafficking o 2. Produce or issue fake government compliance materials to facilitate trafficking (ex. registration stickers, pre-departure requirements, etc.) o 3. Advertising or promoting trafficking
193
o 4. Assist in misrepresentation or fraud to facilitate acquisition of clearances and exit documents from government o 5. Facilitate, assist, or help in entry/exit of persons using fake documents in airports, seaports, or boundaries o 6. Confiscate, conceal, or destroy travel documents of those trafficked to prevent them from leaving the country or seeking redress o 7. Knowingly benefit from use of a person in involuntary servitude, slavery, or debt bondage What are acts that qualify trafficking? o 1. Trafficked person is a child o 2. Adoption is effected through Inter Country Adoption Act of 1995 and the purposes are any of the above prohibited activities o 3. Crime is by a syndicate or in large scale Syndicate: 3 or more persons conspiring Large scale: against 3 or more persons individually or as a group o 4. Offender is ascendant, parent, sibling, guardian, or person with authority of the victim, or public officer/employee o 5. Offender is law enforcement agent or military personnel o 6. Offended party dies, becomes insane, acquires HIV/AIDS
X: CRIMES AGAINST PROPERTY
Is there frustrated robbery? No more frustrated robbery, just attempted or consummated Taking need not be permanent; Even brief possession already consummates the crime o 3. Intent to gain How can intent to gain be established? Intent to gain can be established through overt acts of offender before or after the taking of personal property. Intent to gain presumed from taking another person’s property without consent. Intent to gain cannot be presumed only if there is evidence to the contrary. Not necessary that the offender ACTUALLY gains, because intent to gain is enough. What is “gain”? Not limited to just pecuniary benefit, but also utility, satisfaction, enjoyment, and pleasure Ex. Gasoline boy took a parked car and went on a joy ride. He claimed that he did not intend to
ROBBERY IN GENERAL (293)
Elements: o 1. Personal property of another What does property cover? Includes any property not included in the enumeration of real properties o Because if it’s real property, it’s usurpation of real property And capable of appropriation N.B. Includes electricity, phone services, and the like Can contraband property (ex. drugs) be subject to theft/robbery? Yes. o 2. Unlawful taking What is “taking”? Taking of personal property out of possession of another without privity or consent and without animus revertendi (intent to return) What must concur: 1. Taking (physical act) 2. AND intent to gain (mental act) 194
take it. But here, there was gain because there was enjoyment, utility, satisfaction, and pleasure. Even mere use of property taken is already “gain” under the law. “Gain” rebutted by evidence that he took property because he claims to be the owner of the property. The person is exempt from theft or robbery, even if it turned out not to be his. If the claim is made in BF, then it is theft or robbery. o At best, it is just coercion. o 4. Violation or intimidation against persons OR force upon things When is it robbery or theft? The crime is robbery, not theft, if there are acts of violence, or intimidation before asportation, to enable the person to take the property. If violence or intimidation was done after possession was taken, he is only liable for theft, grave coercion, or physical injuries as the case may be.
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o Exception: Robbery with homicide, and robbery with rape (“in the occasion of”) Is snatching theft or robbery? Depends. If the victim is not subject to violation or intimidation, it is just theft. If the owner is wounded through violence or there is intimidation, it is robbery. What is “Intimidation”? Unlawful coercion, duress, putting owner/possessor in fear Attempt to take property of another with threats of bodily harm No requirement of material violence – it is NOT indispensable for there to be intimidation Is it possible that one is guilty BRD of theft/robbery even if the thing stolen is not offered in evidence? o Yes, because the person may have destroyed the property, thrown it away, etc. o As long as the corpus delicti is proved, the unlawful taking of personal property, there can be proof BRD. What is the presumption of robbery/theft?
o One in possession of recently stolen property is presumed to be the author of the crime of theft/robbery. Recentness is case-to-case. o Possession may be actual or constructive. The property may be in the actual physical control of the offender or in the possession of another, but under the control of the offender. Ex. I stole something but pinatago ko sa kaibigan ko o Accused must not be able to explain his possess satisfactorily. When is the presumption conclusive? o If the accused fails to explain any innocent origin of his possession, and the possession is fairly recent, and it is exclusive.
ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION AGAINST PERSONS (294)
What are the crimes penalized under 294? o 1. Robbery with homicide o 2. Robbery with rape, intentional mutilation, arson, or personal injuries in subdivision 1 of 263 o 3. Robbery with physical injuries in subdivision 2 of 263 o 4. Robbery with physical injuries in subdivision 3-4 of 263 o 5. Simple robbery
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N.B. The first four are special complex crimes; the fifth is not. Art. 48 will not apply for crimes here in Art. 294 What is the rule in order? o The above order must be observed. Thus if there is both homicide and rape, the crime is robbery with homicide. There is no “Robbery with homicide and rape.” o Is the “extra rape” aggravating? The rape is NOT aggravating because it’s not under Art. 14. What if the physical injuries are merely LSPI or slight PI? o It’s just simple robbery under par. 5. Can there be robbery with homicide through reckless imprudence? o No. When will the special complex crimes arise? o The other crime must be consummated. May Art. 48 apply if the constituent elements are not consummated? o Yes. If one crime is done to commit another, or a single act resulting into two or more grave or less grave offenses, and one constituent crime is not consummated. o Otherwise, if both consummated, then it’s a special complex crime. What does “homicide” cover?
o “Homicide” is used in its generic term. There is no robbery with infanticide, parricide, murder, etc. There is no robbery with multiple counts of homicide. o DO NOT use the 2nd or 3rd killing as aggravating. It’s just robbery or homicide. o Is there robbery with homicide and frustrated homicide? No. The frustrated homicide is absorbed by the robbery with homicide. What do you mean “by reason of the crime of robbery”? o The homicide/other constituent crime was not committed in the course of robbery, or shortly thereafter, but there is a LEGAL connection, intimate relation in the commission of robbery Ex. Killing the victim to prevent the person from reporting to the authorities Ex. Killed noisy neighbor who shouted “magnanakaw!” o It doesn’t matter if it happens before, during, or after o P v. Mangulabnan – Person was robbing a house. He heard rumbling noises in the attic and shot a gun at the ceiling, and even without intent to kill, he accidentally killed a hiding person. HELD: Robbery with homicide. (Not robbery with homicide through reckless
197
imprudence – even if it is by mere accident, it is robbery with homicide) o What if the person killed is one of the robbers himself? Doesn’t matter. It’s still robbery with homicide. Even if the guy who shot a robber is also a fellow robber. Is there robbery with homicide AND rape? o No. As long as there is homicide, it is ALWAYS just robbery with homicide. o But the rape still has corresponding civil liabilities. o If a house is burnt to kill another, it is robbery with homicide, not robbery with arson or robbery with homicide and arson What if there are multiple people killed or raped? o Irrespective of number of people killed or rape, it is just robbery with homicide or robbery with rape. When do two crimes arise? o If the original intent is to kill or to rape, but as an afterthought, he stole from the person he killed or raped, then there are TWO CRIMES. o Separate crimes of homicide and robbery o Separate crimes of rape and robbery Can there be robbery with homicide, if aside from intent to gain, there is another motive (ex. He wanted to kill the guy)?
o Yes. As long as there is intent to rob, even if there are other motives, it is robbery with homicide. P v. De Jesus: A group of robbers were robbing in Makati. One of the robbers was shot. There was a chase all the way to Laguna, where a shoot out happened. Another robber got shot by the police. o HELD: Robbery with homicide. EVEN IF the shoot out happened in some other place, it was intimately connected to the robbery. Also, it does not matter that it was a robber that got killed. If a homicide is committed by one robber, ALL of them are liable for robbery with homicide. (“One merges his will into the common intent.”) o EXCEPT: when one of the robbers overtly attempts to prevent the homicide. He is just liable for robbery, even if he is unsuccessful. o What is the liability of the look-out? Even a look-out is a PDP, because the conspirators are given specific tasks to further the crime. Is there a special complex crime of theft with homicide? o No. Robbery with homicide – does it absorb physical injuries? o Yes. Again, follow the order provided.
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May there be a crime of robbery with force upon things with robbery with rape or robbery with homicide? o No. Robbery with force upon things cannot be complexed with robbery with rape (or homicide). When is there robbery with rape? o When the robbery is accompanied by rape, AS LONG AS THE ORIGINAL intent is to rob. o This applies even if the rape was committed even before asportation. The intention to rob must precede the rape, even if the actual robbery comes after. o Thus, if the accused raped the victim and just he took the jewelry as a memento, there are two crimes of robbery and rape – the original intention in this case is not to rob. What if there are multiple rapes? o Even if there are multiple rapes, it is just robbery with rape. o What if each of the accused raped the victim? Even if each of the accused raped the victim, there is only one crime of robbery with rape. o Accused robbed the victim, raped her twice, and then he inserted his finger in the vagina of the woman. What was the crime?
HELD: Robbery with rape. The second rape and insertion of the finger are absorbed. Even the insertion of a finger was absorbed! o Three robbers took victim of robbery in a taxi and went to Quiapo. One robber made the other two go down, and then he took the woman to a motel. What was the crime? HELD: All of them were guilty of robbery. The other one is also liable for rape, separately. If the place of the rape is far from the situs of the robbery, there are TWO crimes, but not robbery with rape. When is there Robbery with arson? o Arson must be contemporaneous to robbery. o When is there robbery with arson? There must be violence and intimidation upon persons first and thereafter, the premises are burned and there is NO killing, rape, or mutilation. Why not force upon things? This will give rise to two crimes: robbery and arson. This is because the arson is deemed a cover-up of the robbery. It is not complex because neither is a means to commit the other
(because both are Crimes against Property). When is dwelling aggravating and when is it absorbed? o It is aggravating in robbery with homicide o Inherent in robbery with force upon things and the place broken into is the dwelling X raped Y, killed her, and robbed the place. Crime? o 1) Rape with homicide and 2) robbery X raped Y, killed her, and took things from her person. Crime? o 1) Rape with homicide and 2) theft X robbed Y, raped her, and then killed her. Crime? o Robbery with homicide X raped Y, robbed her, and then killed her. Crime? o Robbery with homicide
ROBBERY
WITH
PHYSICAL INJURIES
THAT ARE COMMITTED IN
AN UNINHABITED PLACE AND BY A BAND, OR WITH THE USE OF
FIREARM ON A STREET, ROAD, OR ALLEY (295-6)
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What are the special aggravating circumstances here? o 1. In an uninhabited place o 2. By a band o 3. Attacking a moving train, car, airship, or entering passenger compartments in a train
o There must be evidence of indiscriminate commission of the crime of robbery for PD 532 to apply
To what kinds of robbery does this provision apply to? o Robbery with Physical Injuries What is the nature of “band” here? o “Band” here is in the nature of a SPECIAL aggravating circumstance and cannot be offset by a generic MC. o Contrast: BUT for robbery with homicide/rape/intentional mutilation/arson band is ONLY just a generic aggravating circumstance Reason: 295-6 only apply to Robbery with Physical injuries. Art. 296 provides that if any of the firearms used is unlicensed, the penalty is the maximum period. Was this amended by RA 8294? o Yes. Art. 296 has been amended by RA 8294. Here, the unlicensed firearm will not increase the penalty to its maximum period anymore. o Art. 296 – “Firearm” here can be licensed or unlicensed. o Arms can includes bolos and clubs. If one is a member of a band, may he be not liable for crime of robbery, if he tries to prevent it? o Yes. Even if he is a member of a band, if he prevents the robbery or tries to, he is not liable. PD 532 – Highway robbery or brigandage
ATTEMPTED AND FRUSTRATED ROBBERY (297)
Has this provision been nullified by P v. Valenzuela? o Yes. It is rendered nugatory as far as FRUSTRATED robbery is concerned. o Ex. Offender entered the property but he did not find any property there. It is NOT frustrated robbery but attempted robbery N.B. Homicide in 297 is used in its generic term. The homicide must be consummated. If the crime of homicide was committed with treachery, can treachery be used as a generic aggravating circumstance? o Yes. In other situations, if there is treachery, it becomes murder. But there is no such thing as robbery with murder. So it is robbery with homicide, with the generic aggravating circumstance of treachery. (P v. Escote) What if the robbery is merely attempted but there was consummated homicide, what is the charge? o Separate crimes of attempted robbery and homicide.
EXECUTION
OF
DEEDS
BY
INTIMIDATION (298)
200
What is the crime here?
MEANS
OF
VIOLENCE
OR
o Person who with intent to defraud another, by means of violence or intimidation, compels him to sign, execute, or deliver any public instrument or document. o The crime is still robbery. What kind of document is referred to in 298? o Public instrument or documents only. It does not include private documents. If it is a void document, will that be robbery under 298? o No. It is grave coercion. Robbery presupposes damage caused to the victim, but since the document is void, this means he does not lose anything. The offender compels by violence or intimidation the victim to execute a document but he died due to heart attack. What is the crime, 298 or 294 (robbery with homicide)? o 298, but even so, the penalty is still governed by 294 par. 1, as provided in the last sentence.
ROBBERY
IN AN INHABITED HOUSE, PUBLIC EDIFICE, OR
DEDICATED TO RELIGIOUS WORSHIP (299)
What are the situations where there is robbery with force upon things, under this provision? o 1. Entering the premises using: A. Constructive force: Entering through opening not meant for ingress or egress
Using picklocks or similar tools Simulating public authority or false name B. Actual force o 2. Entering without force but while inside, broke walls, doors, receptacles to extract personal property Is constructive forced allowed here? No. It must be actual force. o 3. Brought out of the premises locked or sealed receptacles for the purpose of breaking them outside What if none of these apply? o It’s just theft. What properties must be robbed here? o 1. Inhabited house o 2. Public building o 3. Edifice for public worship There is a provision here about use of fictitious name to rob. How does this differ from Article 178, where there is also use of fictitious name? o Here such use is to enter the house, with intent to rob. In 178, to conceal crime, etc. o Do you apply Article 48? No, because use of fake name is an element of the crime. Same as with simulation of public authority.
ROBBERY OF AN UNINHABITED PLACE (302) 201
o No, it was not. The crime in PD 532 is a separate crime from Arts. 306 and 307.
What is an uninhabited place? o Synonymous to an “uninhabited house” If committed by a band, what is the effect on the robbery of an uninhabited place? o Maximum penalty – this is provided by Article 300. What is Robbery in Article 303? o Robbery of cereals, fruits, firewood in an uninhabited place or building. The penalty here is lower.
3 or more armed robbers
Even just one person; but actually organized or dedicated to commit highway robbery
Robbery against particular victim
What are the crimes here? o 1. One who without lawful cause possesses picklocks or similar tools specially adopted to commit robbery o 2. Maker of such tools; higher penalty for locksmiths What if robbery is actually committed? o The possession of picklocks is absorbed What are “false keys”? o 1. Picklocks o 2. Genuine keys stolen from the owner o 3. Any keys other than those intended by the owner
Robbery
a Indiscriminate robbery
(PD
be actual highway
Liability of those who profit from the robbery: Aiding or abetting a band of Accomplice under Art. 4 of brigands (307) PD 532 Fencing THEFT (308)
BRIGANDAGE (306-7)
Highway 532)
Mere conspiracy to form a There must band of brigands is a crime performance of highway robbery
POSSESSION OF PICKLOCKS OR SIMILAR TOOLS (304-5)
Brigandage (306-7)
Were article 306 and 307 of the RPC amended by PD 532 (Anti piracy and anti highway robbery law)? 202
May a crime be theft even if there is violence used to take away personal property of a victim? o Generally, no. There must be no violence or intimidation or force upon things. o Exception: When the violence committed was not for the purpose of taking the theft.
Ex. When a person was killed first, then as an afterthought, the criminal took the property. Since the property by operation of law goes to the heirs, there was still taking without consent even if the original owner is dead. There are two crimes here: homicide and theft How many modes to commit theft? o 1. Taking another person’s property without his consent o 2. Offender finds lost property and he does not return it to the owner or the authorities Who are the authorities? Local authorities Can this be committed by culpa? No. There must be DELIBERATE refusal to return or deliver to authorities. o 3. A person who maliciously damaged property of another, shall remove or make use of fruits or object of the damage caused by him o 4. Enter enclosed property where trespass is prohibited, then hunt, fish, or gather crops Distinguish from: robbery of cereals, etc. from an uninhabited place May stolen property be the subject of theft? (“Nanakaw na nga, ninakaw pa ulit”) o Yes. The law does not distinguish. How do you establish intent to gain?
203
o Acts preceding, contemporaneous, or subsequent to taking. o Can there be intent to gain if the purpose is to conceal a crime? Yes. Benefit is not always material, it can be any kind of benefit to amount to gain. o Is there presumption of theft? Yes, when personal property is found in possession of recently stolen property and he cannot explain how he came into possession of such. Then it will become conclusive. o How recent is recent? Case by case. If a person is given property for a particular purpose and that person took or misappropriated the property, would it be estafa or theft? o Theft; when only physical possession is given but juridical possession is kept by the transferor. What is given here is just DE FACTO possession, not juridical. o But if juridical possession is given to the transferee, it is estafa. o A bank teller, after receiving deposit, instead of giving it to the bank takes the money. What is committed? Theft, not estafa.
The bank teller is a mere employee of the bank. As an employee of the bank, she only get de facto possession of the deposit. So it is theft. Can there be theft of services? o Yes. Under Code of Commerce, services are personal property. Can gas or electricity be stolen? o Yes, using jumpers. So even intangible property can be subject to taking. o RA 7832 also punishes theft of electrical property. So which is applicable, 308 or RA 7832? Either under Art. 308 or RA 7832. Can commercial documents, PNs, etc., be subject to theft? o Yes, these have value. In a case, the sheriff stole evidence stored in the vault of the court (ex. Gun, money, whatever), when the clerk of court mistakenly left the vault open. What crime was committed? o Sheriff: theft o Clerk of court: Malversation by culpa, since he has custody of documents I own a car. I delivered it to the repair shop. I left it, and the owner of the shop sold my car. What crime was committed, theft or estafa? o Theft. To determine between theft and estafa, ask: was the possession de facto or juridical?
o
o
o
204
Here, it was merely de facto/material possession. But doesn’t the repair shop acquire a lien over the property, under Sec Trans, where he can sell it if he is not paid? It does not apply here, because he hasn’t even tried repairing the car. The SC had a decision saying this is estafa (Laura Santos case). But J. Callejo does not agree with this. When this case was decided, there was no carnapping law yet. Should it apply now? Yes. do you mean by “lost” in Par. 1 of Article
What 308? o The property must have an owner and is not yet res nullius. o If property is stolen and the thief’s identity cannot be deciphered, can you consider the property lost? Yes. o Can loss stem from one’s own faults? Yes. I saw property and did not know who owns it. I gave it to the police and he stole the property. What is the crime of the cop? o P v. Avila – Said this is theft.
o But it can be argued that it is in custodia legis and he is an accountable officer, and it can be MALVERSATION. Is a person who profits from the theft a principal or accessory? o Principal under the Anti-fencing law o Accessory under the RPC
QUALIFIED THEFT (310)
What are the grounds to qualify? o 1. Those personal to the offender: A. Grave abuse of confidence B. By a domestic servant o 2. Referring to the object taken A. Coconut taken from plantation whether from the tree or on the ground B. Fish taken from the pond (if out of the pond, simple theft) C. Motor vehicle – now also under Anti-carnapping law which is malum prohibitum D. Large cattle – now also under Anti-Cattle Rustling law, which is still malum in se even if SPL E. Mail matter – must be with intent to gain
205
Viz. other crimes like estafa or revelation and discovery of secrets o 3. Circumstances during taking such as calamity and misfortune Was this amended by PD 533, the anti cattle rustling law and RA 6539, the anti-carnapping law? o No; these are SPL, according to the SC What is grave abuse of confidence? o It must be a special relation of intimacy. o Ex. Branch manager stole the jewelry under his custody. If there is conspiracy, but one is trusted and the other is not, what is the crime? o Two crimes: qualified theft for the former, simple theft for the latter How about a commission salesman of a corporation? o Just simple theft, because there is no evidence except that he was a commission salesman that the employer reposed confidence on him What does mail matter include? o Any matter that is deposited with the Phil. Postal Corporation which are delivered through postal service. Includes mail matters, parcels, money orders, printed materials, etc.
o Regardless if it is a postal corporation or a private corporation. What matters is that it is MAIL MATTER R.A. 6539 – ANTI-CARNAPPING LAW
Taking with intent to gain a motor vehicle: o 1. Without latter’s consent o 2. Or force upon things o 3. Or violence/intimidation upon persons How does it differ from theft/robbery? o It addresses theft of motor vehicles belonging to another o It deals EXCLUSIVELY with motor vehicles o Without this law, the taking of motor vehicle is theft/robbery as the case may be. What is a “motor vehicle”? o Any vehicle propelled by power other than muscular power using public highways So a motorcycle is included. A bicycle is not. A tricycle is included. A pedicab is not. o Does not include: 1. Utility vehicles if not used on public highways 2. Those than run only on rails or tracks 3. Those used exclusively for agricultural purposes o What about trailers?
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Classified as a separate motor vehicle, regardless of number of wheels and whether propelled or attached to another vehicle o What is the crime for these other vehicles not covered? They are subject to theft/robbery There are two kinds penalties provided, following RPC nomenclature and not: o A. RP to death RP if there is homicide, rape, murder Special complex crime of carnapping with homicide, carnapping with rape, carnapping with murder It is a single and indivisible offense. Here, the owner, driver, or occupant of the car is killed or raped. o B. 17 years and 4 months to not more than 30 years if with violence, intimidation, or force upon things “Qualified carnapping” o C. 14 years and 8 months to not more than 17 years and 4 months if committed without violence, intimidation, or force upon things “Simple carnapping” When is there a special complex crime of carnapping with rape, homicide, or murder? o “If committed on the course of the commission of carnapping or on occasion thereof”
o Who must be killed or raped? Anyone, even if the person killed is anyone other than the owner, driver, or occupant of the car, the (Ex. Bystander) o For this to committed, the homicide, murder, or rape must be CONSUMMATED. If the homicide or murder is merely attempted or frustrated, then the crime is qualified carnapping. o DO NOT apply Article 48 of the RPC. Someone committed qualified carnapping (14 y 7 – 17 y 4 penalty) and then sold the car to another person. Is he an accessory under Art 19 of the RPC? o NO. The nomenclature does not follow the RPC. o But he can be a principal for FENCING. X’s initial intent is to kill the driver. However, he stole the car as an afterthought. What is the crime? o Two crimes: 1) Homicide, 2) Carnapping X rented a car, so the initial possession is lawful. But he killed the driver and took it for his own. What is the crime? o Carnapping with homicide. Even if the driver was not the owner, it is still carnapping because there was no consent by the owner. X was hired as taxi driver to drive the car for a fixed period of time. He did not return it after.
The taxi was found abandoned in a place. What is the crime? o Carnapping. After the initial lawful possession, it transformed to unlawful possession. o Doesn’t the abandonment exculpate X? No. The crime was consummated even if the carnapper abandoned the car after. X stole a truck and the personal effects contained therein. What is the crime? o Two crimes: 1) Carnapping as to the truck 2) Theft as to the personal effects o The SC was wrong here, because it said qualified theft.
ANTI-FENCING LAW (PD 1612)
207
What is fencing? o 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, buy and sell, or in any manner deal with an article, object, item, or anything of value which he knows or should be known to him to have been derived from proceeds or robbery or theft Who is a fence? o “Fence” is person, corporation, or association, or partnership that commits the act of fencing
o If corporation, association, or partnership – president, manager, owner or responsible officer Who are punished? o Those who buy, keep, conceal, or sell the stolen goods What is the requirement for those who do buyand-sell? o Need a permit or else, liable as a fence. There is no fee for the permit. o Failure to get can result to closure of business. o Procedure to obtain permit/clearance: 1. Name, address, pertinent circumstances 2. Article sold or offered for sale to public and name/address of where he got it from 3. Receipt or document showing acquisition Elements: o 1. Crime of robbery or theft committed o 2. Accused, not a principal or accomplice in the commission of the crime, deals with the article in any manner, and the article was derived from the proceeds of the crime o 3. Accused knows or should have known that it was derived from proceeds of robbery or theft
Essence: “known/should have known were the proceeds of robbery or theft” – moral turpitude Test if the articles were displayed for sale, if a receipt was issued, etc. o 4. There is intent to gain for himself or another What is the presumption under law? o Mere possession of the stolen goods creates presumption o Thus, no need to prove prior robbery was committed
CATTLE RUSTLING (PD 533)
May there be cattle rustling even if cattle is not taken? o Even if large cattle is not taken, there can be cattle rustling if it is killed and its meat is taken. There may be a special complex crime of cattle rustling with homicide if a person is killed on the occasion of cattle rustling.
USURPATION OF PROPERTY (312)
208
REAL PROPERTY OR REAL RIGHTS OVER
What is usurpation? o Similar to robbery except that in robbery, personal property is involved What is the penalty? o 1. Penalty for the act of violence o 2. Penalty for the act of usurpation However, what is the nature of this offense?
o It is a single and indivisible offense. So the crime is still usurpation, but the penalty is two-fold (takes into account the act of violence) It is not a complex crime like Usurpation with homicide. It is just usurpation. o It is possible that a single and indivisible offense is committed, but there are as many penalties as how many acts of violence are committed. What are the possible acts that may accompany the act of usurpation? o 1. Homicide, physical injuries in subdivisions 1 and 2 of Article 263 on occasion of such occupation or usurpation o 2. Rape or intentional mutilation o 3. Physical injuries in subdivisions 3 and 4 of Article 263 in the course of execution of the usurpation o 4. Intimidation or infliction of physical injuries to commit the usurpation or occupation
o 1. With abuse of confidence or unfaithfulness (par. 1) o 2. Through deceit or false pretense (pars. 2 and 3), with damage in either case ESTAFA (¶1)
CULPABLE INSOLVENCY (314)
What is culpable insolvency? o Committed by debtors who conceal properties to avoid payment of legal debt o Higher penalty if committed by merchants
SWINDLING/ESTAFA (315)
How is estafa committed? 209
WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE
What are the three acts covered by this paragraph? o 1. Altering the substance of anything with value that the offender should deliver by obligation o 2. Misappropriating or converting to the prejudice of another, some money, goods, etc. o 3. Taking undue advantage of signature in blank 1. Altering substance of anything with value that offender should deliver based on an obligation o The law applies even if the property the offender is bound to deliver is opium or something illegal/obscene But in this case, he is also liable under Dangerous Drugs Act, or immorality provision in RPC, etc. 2. Misappropriating or converting, to the prejudice of another, person some money, goods, etc. o Elements: 1. Goods were assigned
2. Misappropriation or conversion; or a denial by him of such receipt is also a violation 3. To the prejudice of another 4. Demand by offended party to return the money or property o What is “any other obligation to make delivery or to return?” It refers to contracts of bailment, lease of personal property, deposit, commodatum – because under any of these provisions, there is JURIDICAL POSSESSION by the depositary In estafa, both MATERIAL and JURIDICAL possession is transferred to the offender o What is the difference between material and juridical possession? Possession which gives to the transferee a right over the thing/property which he may set-up against the transferor In Theft or robbery, there is NO transaction between offender and offended party The transaction involved must not transfer ownership to the offender o There must be a FIDUCIARY relationship between offender and offended party.
There must be an agreement to return the same thing or money It doesn’t matter if the obligation is guaranteed by a bond or not Without this relationship, there is no estafa The duty to return the same thing or money is based on: A. MUTUAL AGREEMENT by the parties or B. BY LAW o When does fraud come into play? When there is conversion or misappropriation. o In bank loan transactions, usually, the borrower is required to produce “show money” to establish that she can repay the loan. But in a case, she borrowed the “show money” from someone else. She used it for her own benefit. What is the crime? HELD: Estafa. It was received in trust for a particular purpose, and there is obligation to return. By misappropriating it, she is guilty of estafa. Remember in Sec Trans that borrowing “show money” is a commodatum transaction involving personal property o Must the misappropriation be permanent? 210
No. Even a temporary disturbance constitutes misappropriation. No need to be permanent. o What does “prejudicial to another” mean? It need not be the owner of the property himself. It can be another person, as long as there is damage caused. o An owner of a truck pledged it to another as security for a loan contract. But then, he leased it to another and it was stolen from the lessee’s possession. What is the crime? HELD: There was no estafa, because there was no intent to misappropriate or convert. J. CALLEJO: Disagreed. The petitioner could not have acted in GF, because he had already pledged it to another as security for a loan. o Can there be estafa when there is no gain on the part of the offender? No. Case: a person was assigned jewelry to sell, with commission. He was not prohibited from appointing a sub-agent, so he got one. The subagent stole the jewelry. HELD: The agent was acquitted because he did not convert or misappropriate the jewelry.
The agent cannot be liable for mere negligence in entrusting the jewelry to another because there is no such thing as estafa through negligence But is it possible that the agent is liable? 1. He is liable if he CONSPIRED with the sub-agent. 2. If there is prohibition to entrust the jewelry to a sub-agent, but the agent still does, then the agent can be liable. o May there be estafa in a loan transaction? No. Because owner of the money loaned is transferred to the borrower, even if the borrower can pay back. What about money market placement? No estafa because it partakes the nature of a loan. o What about bank deposits? Can there be estafa if the money deposited is used by the bank? None. Deposits are treated as loans to the bank, and are covered by the law on mutuum. o A teller of a bank receives deposits and misappropriates these. What is the crime? 211
o
o
o
o
Theft, not estafa, because the bank teller is merely an employee of the bank and only gets material possession of the money. In a sale of property and earnest money is given and the money is used by the seller. Is there estafa? No. Down-payment or earnest money forms part of the purchase price. The seller can use this money, even if the sale eventually does not push through. An employee who fails to account for cash advances for travels – is there estafa? No estafa. Because this is in the nature of a loan and the employee obtains juridical possession of such. The private respondent delivered his car to a motor shop for repairs. The owner of the shop misappropriated it. Is there estafa? Yes. There is obligation to return after repair. There was juridical possession, and thus, estafa. X was a sales agent selling residential lots on behalf of a corporation. He was authorized to sell the lots, but NOT receive the monthly amortizations from the lot buyers. However, he received these and worse, he failed to remit these. Is there estafa?
Yes. Accused is guilty of two sets of estafa: 1. As regards the lot buyers, he committed estafa through fraud or misrepresentation because he claimed that he could receive monthly amortizations. 2. As regards the employer, estafa with abuse of confidence, because he did not remit. o How many counts of estafa are committed? Depends on how many offended parties/victims. But if committed on different dates or occasions – there are as many counts of estafa as the number of transactions. o PD 155 – Trust receipt transactions: A trust receipt transaction imposes upon trustee to give the price sold if sold, or if the goods are not sold, return them to the entrustor. Is a violation of PD 155 estafa under Art. 315 par. 1(b)? Yes. Violation of this constitutes estafa. It is malum prohibitum. The only thing to be established: prejudice caused to another. Mere failure
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to deliver already constitutes the criminal offense. When a person participates in the commission of a crime, he CANNOT escape liability due solely to the fact that he was acting as an agent of another party. The NCC provisions on agency do not apply to criminal cases. 3. Taking undue advantage of signature of offended party in blank
ESTAFA THROUGH FRAUD (¶2)
What are the acts covered by this paragraph? o 1. Using fictitious name, falsely pretending to possess power, influence, qualifications, property, credit, etc. o 2. Altering quality, fineness, weight of anything pertaining to his business or art o 3. Pretending to have bribed any Government employee N.B. for this instance, impose the maximum o 4. Bouncing check o 5. Obtaining food or service from a hotel or restaurant without paying for it and with intent to defraud Or obtaining credit through false pretense or fraud
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Or surreptitiously abandoning or removing luggage from establishment without paying Distinguish between estafa through fraud from estafa through abuse of confidence? o Abuse of confidence – conversion or misappropriation o Fraud or false pretenses – fraudulent acts simultaneous or preceding In illegal recruitment, can one be liable under both the Labor Code and Estafa under this provision? o Both the Labor Code AND estafa. There is no double jeopardy because the Labor Code is an SPL. Essential elements: o 1. False pretense, fraudulent act or means o 2. Such must be made or exhibited prior to or simultaneously o 3. Offended party must have relied on such and was thus induced to part with his money or property o 4. Thus causing damage What is “Fraud”? o Anything calculated to deceive Ex. Falsely representing that property used as security had mangoes, when it was really barren Ex. “I will sell you my property.” But it really wasn’t his.
Caveat emptor doctrine does not apply. You cannot invoke the fact that the victim was himself negligent. It doesn’t apply to criminal cases. Post dating a check or bouncing check: o Can a person other than a drawer be liable? Yes. Indorser or a co-conspirator. o Elements: 1. Post-dating or issuance of check for obligation contracted at the time the check was issued 2. Lack or insufficiency of funds to cover it 3. Knowledge of the drawer of this lack 4. Damage capable of pecuniary estimation to the payee o The fraud must be committed PRIOR or UPON the issuance of the check. o For what kind of obligation must the check be issued for? The check MUST NOT BE for paying a pre-existing obligation, because there is no more deceit in this case. The drawer obtains no gain here, because the consideration has already been delivered to him. o What is the implication of this doctrine, then?
o
o
o
o
o
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Yes. The date of the obligation, being the very date of the check, is a MATERIAL INGREDIENT of the crime. Must the check be negotiable? Negotiability of a check is not the gravamen of the crime, but the fraud or deceit in knowingly issuing a worthless check. When is the lack of funds determined as to post-dated checks? Valid as long as when it is due, there are funds, even when there are no funds at the time it was issued. What if the bouncing check is issued as a guaranty to secure a loan? There is no estafa. Issuing a bouncing check in exchange for cash: Estafa, because you received something in exchange How do you prove knowledge that there were no funds? Direct evidence Notice of dishonor from drawee bank duly received by the drawer of the check and failure to deposit money to cover the amount How can the issuer of a bouncing check escape liability?
Depositing required amount within 3 days of notice of dishonor. Failure to deposit the amount will give rise to presumption of deceit. What if the account is closed? There is still need for notice of dishonor to allow the person to pay. If there is no notice, accused cannot be convicted. BUT in another case, it held that there was no need for notice of dishonor because the account was already closed.
ESTAFA THROUGH OTHER FRAUDULENT MEANS (¶3)
What are the means of committed estafa under this paragraph? o 1. Inducing another through deceit to sign any document o 2. Resorting to some fraudulent practice to insure success in a gambling game o 3. By removing, concealing, or destroying in whole or in part, any court record, office files, document, or any other papers
OTHER FORMS OF ESTAFA/SWINDLING (316)
B.P. 22 – BOUNCING CHECKS LAW
o 2. Issued as guaranty o 3. For pre-existing obligation N.B. BP 22 doesn’t distinguish between pre-existing and concurrent obligation What is the difference in period under BP 22 compared to RPC estafa? o Under BP 22 the drawer of the check has a period of 5 days from notice of dishonor (unlike RPC, 3 days) Under NIL check is stale after more than 6 months (180 days) is there a need to issue a notice of dishonor at the time it was presented for payment? o Only consequence is no prima facie presumption of knowledge of no funds, still be held liable if able to prove that he had knowledge Can there be simultaneous prosecution for estafa and BP 22 for the single act of a bouncing check? o Yes, if both apply. Estafa is concerned with issuing a bouncing check as fraud; BP 22, with the mere bouncing of the check per se.
What does B.P. 22 cover that is not covered by the prior provision on estafa? o 1. Issuance of check as deposit 215
What are covered by this provision? o 1. Person pretends to be owner of real property and disposes thereof o 2. Person knows real property is encumbered and disposes it Even if the encumbrance is not recorded o 3. Owner of personal property wrongfully takes it from lawful possessor to the prejudice of the latter or third person
o 4. Executing fictitious contract to prejudice of another o 5. Person accepts any compensation given him under the belief that it was in payment for labor/service when he didn’t actually perform any o 6. Surety in a bond for criminal or civil action disposes of the property given by him Without leave of court or before cancellation of the bond OTHER DECEITS (318)
What does this cover? o Person who defrauds or damages another through deceit not covered by the prior paragraphs or provisions o Also covers those who tell fortunes or dreams for a profit (!) What does the word “deceit” include? o Includes concealment of the fact that the car sold was not brand new VIOLATION OF CHATTEL MORTGAGE (319)
What is penalized here? o 1. Mere removal of property from the place where the CM was constituted When is there no intent to defraud? When the debtor has transferred residence because he also has to move his property o 2. Failure to secure consent on the deed itself or on the registry and the mortgagor sells or further encumbers the personal property
DESTRUCTIVE ARSON (320) 216
What is arson and how committed? o Destruction of property by fire, as long as fire or pyrotechnics are used to destroy the property o When is it consummated? When there is fire, and it was intentionally caused, and property burned even if not completely destroyed o What must be proved? 1. Occurrence of fire due to criminal agency 2. Identity of the defendants as the one causing it Can there be arson by negligence? o Yes. o Ex. A person burns trash disregarding the strong winds that blew the cinders to the neighbor’s property. The crime is simple/reckless imprudence resulting to arson. Is there frustrated arson? o No. It’s either the burning did not happen (attempted arson) or it did, regardless of extent (consummated arson). When is the burning destructive arson? o [Dangerous place] o 1. Any ammunition factory and other establishment where explosives, inflammable, or combustible materials are stored o [Important places] o 2. Archive, museum (public/private), edifice devoted to culture, education, social services o 3. Church, place of worship, or usual place of assembly
o 4. Building where evidence is kept for official proceedings o [Places with a lot of people] o 5. Train, plane, vessel, or other transportation o 6. Hospital, hotel, dormitory, housing tenement, mall, market, movie house, or similar places o 7. Building in a congested or populated area, whether a dwelling or not Other cases of arson: (with higher penalty than simple arson): o [Places with people] o 1. Any building and office of government o 2. Inhabited house or building o [Related to industry or commence] o 3. Industrial establishment, shipyard, oil well, mine shaft, platform, tunnel o 4. Plantation, farm, etc. o 5. Rice mill and other mills o 6. Railway or bus station, airport, wharf, warehouse If destructive arson or those other cases are not specified, what is the charge? o Simple arson What are the special aggravating circumstances? o 1. Committed with intent to gain o 2. Committed for benefit of another o 3. Motivated by spite or hatred towards owner or occupant o 4. Committed by syndicate What else are specially punished? o 1. Arson, where death results (qualified) Is this “arson with homicide”? No.
1. If the purpose is to kill, and burning was the means, it is murder 2. If the purpose is to burn, but someone died, it is arson under this provision. o Homicide is absorbed but there is civil liability for death. 3. If person is killed and the house is burned to conceal, two crimes: 1) murder, 2) arson o 2. Mere conspiracy to commit arson What if several houses burn? o There is only one crime of arson no matter how many houses were burned. Supposing someone burns his own property is he liable? o He may be liable if other people’s property is damaged. MALICIOUS MISCHIEF (327)
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What is malicious mischief? o Act of intentionally causing damage to property of another without use of fire or pyrotechnic o There must be specific intent to destroy such property o Can it be committed by culpa? No. Distinguish between unjust vexation and malicious mischief: o Unjust vexation if the purpose is to irritate a person
o Malicious mischief if purpose is to damage property Distinguish between malicious mischief and arson: o Arson can be committed by dolo or culpa, malicious mischief by dolo only o Arson must be by fire, malicious mischief if not by fire o If death results from arson, it is just arson (but qualified); if death or injury results from malicious mischief, those are separate crimes Distinguish between malicious mischief and theft: o Malicious mischief has no intent to gain EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY (332)
o 2. Estafa but NOT complexed with other crimes (ex. estafa with falsification of commercial documents) o 3. Malicious mischief Not arson XI: CRIMES AGAINST CHASTITY ADULTERY (333)
Who are the persons exempt from criminal liability? o 1. Spouses o 2. Ascendants and descendants o 3. Son/daughter-in-law and mother/father-inlaw o 4. Brothers and sisters who must be living together Whether legitimate, half, or illegitimate What if there are strangers participating in the crime? o They are not exempt Is there civil liability? o Yes. The exemption is only for criminal liability For what crimes are they exempted? o 1. Theft, including qualified theft Not robbery
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Who are liable for adultery? o 1. Married woman who has sexual intercourse with a man not her husband o 2. That other man who has carnal knowledge of her, knowing her to be married o What if the marriage was subsequently declared void? It does not exculpate because the marriage ostensibly exists by then Is it a continuing crime? o No. o Each sexual intercourse consummates the crime. Ex. Sex 5 times, adultery 5 times. Can there be frustrated adultery? o No frustrated adultery because it is consummated by intercourse, so the rule for rape likewise applies. What about attempted adultery? o There can be attempted adultery. Caught in hotel in act of undressing, about to have sex. Can there be criminal action against just one of the parties? o No. It must be against both parties if both are alive.
(336)
Differentiate pardon from consent: o Pardon is prior to the act, consent is after. In any case, it is a bar to filing a criminal complaint. Who can initiate action for adultery and concubinage? o Must be from offended spouse. Both offenders must be named in the complaint.
(339)
Obscene acts Obscene acts Obscene acts committed with committed with lewd committed with lewd design design lewd design Committed under circumstances of rape (no consent)
CONCUBINAGE (334)
Committed under circumstances of seduction (consent secured by deceit)
Victim is male or Victim is female female
How is concubinage committed? o 1. Husband keeping a mistress in the conjugal dwelling o 2. Having sexual intercourse under scandalous circumstances with a woman not his wife o 3. Cohabiting with the woman in any other place Means living together as husband and wife, not merely living together under one roof, but also having sexual intercourse. Who is liable for concubinage? o Husband – PC o Concubine – destierro only Can a man be liable for adultery and concubinage at the same time? o Yes, if his concubine is a married woman. ACTS OF LASCIVIOUSNESS (336) AND CONSENTED ACTS OF LASCIVIOUSNESS (339)
Any age, reputation
Acts of Consented acts of Sexual abuse lasciviousness lasciviousness (RA 7610) 219
Victim is male or female exploited in prostitution or subjected to sexual abuse
any 12 to below 18 12 to below 18 years old and virgin years old (if less than 12, of good reputation prosecute under RPC)
Distinguish acts of lasciviousness from attempted rape: o In acts of lasciviousness there is no intent to have carnal knowledge of a woman o In attempted rape, there is but before he could complete all acts of execution, he is prevented other than by spontaneous desistance What is required intent-wise? o Lewd design – something indecent or obscene, designed to incite crude sexual design
o It may be inferred from nature of act committed and occasion acts were committed. Related with RA 7610: o Lascivious conduct may be committed under RA 7610, victim of child abuse. o Elements of sexual abuse under RA 7610: 1. Accused commits acts of lasciviousness 2. Act is performed with a child exploited in prostitution or subjected to sexual abuse 3. Child is below 18 and whether male or female o What if the child is below 12? Prosecuted under the RPC (penalty is RT instead of PC)
Victim can be 18 or older if the offender is an ascendant or brother
What is the concept of seduction? o Having sexual intercourse with one who is presumed by law to be unable to fully give consent to it (although not rape) o What if there is no sexual intercourse? It can be consented acts of lasciviousness (339) Can abuse of confidence be appreciated in qualified seduction? o No. Abuse of confidence is inherent, not aggravating circumstance What is the concept of “virginity” in qualified seduction? o Physical, not moral; i.e. that the woman has no sexual experience. Compare with rape: o It is always rape if less than 12 years old (statutory rape); if 12-18 there must be force or intimidation. Virginity is not material in rape. o In qualified seduction, the girl must be 12-18 and virginity is an element. CORRUPTION OF MINORS (340)
QUALIFIED SEDUCTION (337), SIMPLE SEDUCTION (338) Qualified seduction (337)
Simple seduction (338)
Offender has sexual Offender has sexual intercourse with the victim intercourse with the victim through cajolery through cajolery Victim is a virgin woman
Victim is a single woman or widow (because you can’t get married below 18 now) of good reputation
Offender is person with Offender is any person authority, confidence, or relationship vis-à-vis the victim
Generally, victim is 12 to Victim is always 12 to below 18 years old below than 18 years old
What is corruption of minors? o A minor is used by one person to satisfy the lust of another and not his own lust.
FORCIBLE ABDUCTION (342) (343) 220
AND
CONSENTED ABDUCTION
Forcible abduction (342)
Consented (343)
o N.B. the element of “lewd design” cannot be deployed twice to prove two crimes PROVISIONS RELATING TO CRIMES AGAINST CHASTITY (344)
abduction
Victim is any woman of any Victim is virgin of 12 to age, civil status, or below 18 years old reputation Abducted against her will
Abducted with her consent
With lewd designs
With lewd designs
When is forcible abduction absorbed by rape? o When the initial intention is really to rape. When is the crime of forcible abduction complexed with rape? o The taking of the woman amounts to forcible abduction, and thereafter, she was raped o What if there are multiple rapes? Then only one rape shall be complexed with forcible abduction. The second rape and others are separate crimes. When is there kidnapping or kidnapping with rape? o If the purpose of the taking is to deprive the woman of her liberty o If the woman was raped thereafter, kidnapping with rape Is there a crime of forcible abduction with attempted rape/acts of lasciviousness? o No, because both are manifestations of lewd designs which is already an element of the forcible abduction. The crime is just forcible abduction.
What is the nature of civil indemnity? o It is absolute and never conditions upon the financial capacity of the accused When must pardon be given by the victim? o Before prosecution of the crime o Except rape o What is the effect of pardon by the offended party? It does not extinguish criminal liability. The only exception is valid marriage between the offender and victim. In rape, will pardon of the parents of the victim without concurrence of the minor victim be effective? o No. o It must be given by the minor herself too. What is the civil liability of a person convicted of rape when an offspring results from rape? o 1. Indemnify the woman o 2. Acknowledge the offspring unless the law prevents him from doing so When there is no legal impediment (if both are single) o 3. Support the offspring
XII: CRIMES AGAINST CIVIL STATUS
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SIMULATION OF BIRTHS, SUBSTITUTION OF CHILDREN, AND CONCEALMENT OR ABANDONMENT OF LEGITIMATE CHILD (347) AND USURPATION OF CIVIL STATUS (348)
BIGAMY (349)
What are the elements of bigamy? o 1. Offender has been legally married o 2. Marriage has not been legally dissolved, or the absent spouse has not yet been judicially declared presumed dead o 3. Offender contracts a subsequent marriage o 4. Such subsequent marriage has all the essential requisites of validity X’s spouse has been absent for 12 years, so he married another person. Is this bigamous? o Yes. There must be a prior declaration of presumptive death by the courts. X and Y are married. X married Z. To avoid bigamy, he petitioned to annul the first marriage with Y and it was granted. Was there bigamy? o Yes. The judgment of nullity or annulment must precede the subsequent marriage. Does the principle of constructive notice by registration apply to bigamy? o No, because it is usually entered into secretly from the spouse. So there must be ACTUAL knowledge of the subsequent marriage. o Viz. In land and property disputes, constructive knowledge through registration applies. ILLEGAL MARRIAGE (350)
Who are penalized? o 1. Those who simulate birth, substitute one child for another, or abandon/conceal a legitimate child to have him/her lose civil status o 2. Any physician or surgeon or public officer who through profession or office cooperates in the crime o 3. One who usurps the civil status of another to defraud the offended party or his heirs Where should simulation of birth be made? o It must be made in the record of birth o What if it’s done in another document? Then the crime is falsification o What if the record of birth reflects the true parents but simulation is in other documents? No violation of 347 When is child trafficking committed in relation to these provisions, under RA 7610? o 1. Parents agree to adopt the child for a consideration o 2. Physician made it appear in the record of birth that the supposed parents are natural parents
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What is illegal marriage? o Contracting marriage knowing that the requirements of law have not been complied with, or it is in disregard of a legal impediment except for bigamous marriages
Distinguish from bigamy: o 1. Subsequent marriage in bigamy is valid, except that it is bigamous; in illegal marriage, the subsequent marriage is void or annullable and there is no need for a first marriage o 2. Bigamy only refers to a subsequent valid marriage before judicial declaration of nullity or presumptive death; illegal marriage covers all other void or voidable marriages PREMATURE MARRIAGE (351)
What is premature marriage? o 1. One who remarries within 301 days from the death of her husband o 2. One who remarries prior to delivery of her child, if pregnant during his death
PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY (352)
What is punishable here? o Priest or minister of any religious denomination or sect, or civil authorities who celebrate illegal marriage ceremony
XIII: CRIMES AGAINST HONOR LIBEL (353)
What is libel? o Public and malicious imputation of a crime, vice, or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
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contempt of a natural/juridical person, or to blacken the memory of the dead What are the elements of libel? o 1. Allegation of discreditable act or condition to another o 2. Publication of the charge o 3. Identity of the person defamed o 4. Existence of malice What is publication? o After it has been written, to make it known to someone other than the person to whom it has been written o What if it’s sent straight to the person to whom it is written? Then there is no publication. o What if an unsealed libelous letter is sent to the offended party? There is publication since anyone could have read it (even just the postman) o Is an inter-office memo publication? In a case, because it was only directed towards the supervising officers, etc. then it is not publication What is the presumption in libel? o Every defamatory imputation presumed to be malicious, even if it is true o Except? When good intention and justifiable motive can be shown
What are the exceptions to libel? o 1. Private communication by one person to another in the performance of legal, moral, or social duty o 2. Fair comment of public acts What is identity? o At least a stranger or third person may be able to identify him as the subject of the statement Can the court impose a fine instead of imprisonment? o Yes, it is up to court discretion to impose imprisonment, fine, or both. Merely imposing a fine can be out of compassion. Who are the other punishable persons in relation to libel? o 1. Those who threaten to publish the libelous material unless he is compensated o 2. Those who offer to prevent the publication of such libel for compensation
SLANDER BY DEED (359)
What is slander by deed? o Dishonor, discredit, or contempt upon another person which is not covered by slander or libel
GENERAL PROVISIONS (360)
SLANDER (358)
o Not depending on sense and grammatical meaning of the utterances Is “putang ina mo” slander? o No. Is there frustrated or attempted defamation? o No. It is a formal crime.
When is a defamatory remark serious and when is it slight? o Depends on the special circumstances of each case, antecedents, or relationships between the offended party and the offender which might tend to prove the intention of the offender at the time.
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Who are the persons responsible for defamatory publications? o 1. Any person who publishes, exhibits, or causes the publication or exhibition of any defamation in writing or similar means o 2. Author or editor of a book or pamphlet, newspaper – to the extent that are authors/editors thereof What courts have jurisdiction over libel cases? o Even if the punishment falls within the MTC scope, by express provision of law, it is under RTC jurisdiction always What is the venue of libel cases (alternative)? o 1. RTC of province or city where the libelous article is printed and first published (regardless of nature of victim)
o 2. If offended party is a private individual, RTC of province where actually resided during offense o 3. If offended party is a public officer whose office is in Manila at the time of the commission of offense, in the RTC of Manila o 4. If public officer outside of Manila, in the RTC of the province or the city where he held office during the commission of the offense Can a headline alone be libelous? o No. The headline must be read with the accompanying news story When can public officers demand damage from members of the press? o If the statement was made with actual malice – with knowledge that it was false or with reckless disregard of whether it was false or not o How is reckless conduct measured? Whether a prudent man would have published it or investigated further before publishing
XIV: CRIMINAL NEGLIGENCE
INCRIMINATORY MACHINATIONS (363-364)
o Chismis. (The author is unknown and the offender appears to be repeating only what he heard others say. He doesn’t want to assume responsibility for the statement.) o What if the source of the statement is known? It’s slander What is incriminating an innocent person? o Imputing to the innocent person the commission of a crime. This includes planting of evidence
What are the crimes under incriminatory machinations? o 1. Incriminating an innocent person (363) o 2. Intriguing against honor (364) What is intriguing against honor? 225
What is reckless imprudence? o It is the inexcusable lack of precaution of a person, taking into consideration his: a) employment, b) intelligence, c) physical condition, d) other circumstances (time, person, or place). o This must lead to material damage to another, which is manifest. o What are the elements of reckless imprudence? 1. Offender does or fails to do an act 2. It is voluntarily done or not done 3. Without malice 4. Material damage results from the reckless imprudence
5. There is inexcusable lack of precaution on the part of the offender, taking into account the above considerations What is simple imprudence? o The failure to exercise the diligence necessary or called for by the situation. o It applies to situations where the threatened harm is not immediate or the danger is not openly visible. What is the nature of culpa/imprudence? o Culpa under Art. 365 is in itself a crime (criminal negligence) o Under Art. 3, it is just a mode of committing a crime Do complex crimes apply to imprudence? o Yes. If a reckless, imprudent, or negligent act results in two or more grave or less grave felonies Relate reckless imprudence to malice: o Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of precaution by the person performing or failing to perform the act o Malice is the antithesis of reckless imprudence In case of abandonment of victim, what provision of the RPC governs?
o The qualifying circumstance of the last paragraph (abandonment) must be alleged for the court to have jurisdiction to impose the next higher degree penalty To convict for medical malpractice, what kind of evidence is required? o Expert testimony is usually necessary to support the conclusion as to causation o What is the exception to this rule? Res ipsa loquitur Is there a crime of double homicide through reckless imprudence? o No. In reckless imprudence, the actual penalty for criminal negligence bears no relation to the individual willful crime or crimes committed, but set in relation to a whole class/series of crimes. o N.B. in the penalties for negligence, what matters is if a less grave or a grave felony results. This determines the violation. But does a charge under the RPC absorb the other charges comprising mala prohibita crimes? o No. A mala in se felony cannot absorb mala prohibita crimes.
ANNEX 1: CIVIL INDEMNITY RATES
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Even with RA 9346, the classification of crimes as heinous and quasi-heinous still remains (heinous: death; quasi-heinous: RP)
o If the crime is heinous: 75,000 indemnity 50,000 moral damages o Quasi-heinous 50,000 indemnity 50,000 moral damages Simple rape indemnity 50,000; moral damages 50,000 o No need to prove besmirched reputation, mental anguish etc. It goes without saying already. REGARDLESS of sexual preference, religious orientation, etc. Sexual assault (finger) o 30,000 indemnity o 30,000 moral damages Raped three times: o There must be a separate award for each crime. o It cannot be one award for 150,000. There must be three separate awards for 50,000 each. General rule: for rape support child born out of rape. (Art. 345 “in every case”) o May the offender be compelled to give support to the child born out of rape, although the woman is married? No, not if the woman is already married. Dissent by Justice Regalado: compel offender, provided that the paternity of
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the child to the offender is established. (Basis: Art. 345 of RPC does not distinguish) o But the offender cannot be obliged to acknowledge offspring in adultery and concubinage, when the offended party is married and paternity cannot be determined. Use of woman to rape a woman is aggravating – even special: o 25,000 damages Acts of lasciviousness: o 5,000 moral o 2,000 exemplary for each count Qualified rape: o 75,000 indemnity o 50,000 moral damages Rape with homicide: o 100,000 indemnity o 50,000 moral damages For moral damages on parricide, homicide, rape, etc. No need to allege emotional suffering on information. o But some cases say that in homicide or murder, there must be proof that the heirs suffered emotional pain, suffering, etc. Ex. if they are separated, then they don’t feel anything. Consummated homicide: o 50,000 indemnity o 50,000 moral damages
Frustrated homicide: o 30,000 moral damages Attempted homicide: o 30,000 moral damages o Moral v. P: 10,000 In reckless imprudence resulting to homicide: o Indemnity o Moral damages Robbery with homicide: o 50,000 indemnity o 50,000 moral damages Forcible abduction with rape (for each count): o 75,000 indemnity o 50,000 moral damages Kidnapping with rape o 100,000 for kidnapping o 25,000 for moral damages o 50,000 for slight illegal detention Victim kidnapped was 8 years old: o 50,000 indemnity o 200,000 moral damages o 100,000 exemplary damages – because demand for ransom was deemed an AC Qualified carnapping: o 75,000 indemnity o 50,000 moral
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