Quick Pointers on Criminal Law Book 2 Salva - Complete

Quick Pointers in Criminal Law (Book 2(Complete)) Notes from Lecture of Fiscal Salva (Ret.) Former Chief Prosecutor, City of Manila JURISTS BAR REVIEW CENTER August 14, 2015

Notes • This is not a complete transcript of the lecture • The slides are limited to brief annotations, which the author humbly found remarkable and especially enlightening. • Made these slides to combat sleepiness and be productive, so forgive some typographical and grammatical lapses

Prepared by: Lawrence P. Villamar (With cross-reference to my honey bunch Panky Obbania)

Treason • Continuing crime • TWO WITNESS RULE – Only crime requiring two credible witnesses for the same overt act as way of proving because war time is “abnormal time”.

Conspiracy & Proposal to Commit Treason • Conspiracy need not be accepted in proposal to commit treasin

Misprision of Treason • A crime of ommission • May only be committed by a Filipino citizen (note that this is not expressly identified in the provision of the law). • What must be reported is only conspiracy. If crime is committed already, there can not be misprision if unreported.

Piracy under PD 522 • Stowaways may commit piracy undern PD 522, for the purpose of which he is a stranger, unless he is invited by the captain.

Act of Terrorism (RA 9372) • Sec. 49 – acquittal or conviction under RA 9372 bars prosecution for crimes enumerated under Sec. 3 defining “acts of terrorism” under which piracy is included.

Kinds of Arbitrary Detention • See Art. 124 – 125 – 126 of RPC

Delay in Delivery of Detained Persons (Art. 125) • Applies only to warrantless arrest

Delaying Release (Art. 126) • Process server may be held liable

Remedy to Delayed Realease • The speediest remedy is writ of habeas corpus

Expulsion (Art 127) vs Grave Coercion (Art. 286) • If without lawful authority, then there may be grave coercion. • Note that expulsion may only be committed by public officer or piublic employee.

Violation of Domicile (Art. 128) • There must either be express or implied prohibition. • If entrance is through a window, there is prohibition as the window is not meant to be a means of entry. • If entry is allowed, does not mean “search is included” in permission. • If policeman leaves but returns, there may be unjust vexation.

Search Warrant Maliciously Obtained (Art. 129) • May also be liable for perjury as to obtain a search warrant, police officer needs to execute an affidavit. • ABUSE IN THE SERVICE -If valid, policeman must not use unreasonable or excessive force. He may be charged with some other crime, if he serves the warrant with unreasonable or excessive force. • If nightime or failure to return seized things not covered by warrant, the violation of domicile becmes qualified.

Dangerous Drug Act Of 2002 • “PLANTING OF EVIDENCE” - may be committed by “any person” not only police officer, under Sec 29 of RA 9165. • NOTE: Sec. 25 on Liability of Public Officer for Misappropriation etc was asked in the bar exam – life imprisonment to death, plus fine.

JOKE TIME • Fiscal Salva: “When I lecture to police men, I ask them why does their curriculum include Agriculture? Planting of evidence, that’s Agriculture. Tawa mga pulis!” • (OVERHEARD) Police man in the audience: “Hindi lang dapat Agriculture, Janitorial Services din! Pag-lilinis ng ebidensiya!” • Fiscal Salva: “Ang korapsyon talaga, kahit saan…” • PRIVATE JOKE from Stella Agustin: “Ah, kaya pala yung kakilala ko naka-iPhone!”

Interruption of Religious Worship • Covers traditions religious worship • If not, may be covered by Art 131 “Prohibition of Peaceful Meeting”

Offending Religious Feelings • Committing an offending act in a “place devoted to religious worship” • There need not be worship at the time of commission • Must be related to “religious ceremony” • If not offending religious feeling, may be unjust vexation.

Crimes Against Public Order (Title 3) • REBELLION - “Rising publicly and taking arms against the Government” May be rephrased to “public armed uprising” for purpose answering in the bar exam. • No mention of Judiciary, only Chief Executive or Legislature in Art 134. But may be liable for Sedition under Art 139. • SC: “Common crimes committed in furtherance of rebellion are absorbed.” (PURPOSE TEST: political motivation) • Rape can not be absorbed as it may not be committed in furtherance of a political motivation

Rebellion (Art 134) • Rebellion may absorb murder if government recognizes that the accused is a member of “Sparrow” or liquidation unit of the New People’s Army. • The court may take judicial notice and dIsmiss charge of murder without prejudice to filing of rebellion

Inciting to Rebellion (Art 138) • Offender may not be one who is already committing rebeallion against the government • Incite by means of speech, proclamations, writings,emblems, banners, or other representations

Coup d’etat (Art 134-A) • “To strike against the State” • PURPOSE: To seize or diminish power of the State, but not to overthrow it (unlike in rebellion). • May be committed without public uprising, but by swift attack • In rebellion, there must be a multitude. In coup d’etat, a single police officer may commit the crime. • In rebellion, address against entire Government. In coup d’etat, directed against duly constituted authorities etc. • Common crimes deemed absorbed, unless personally benefitted.

Sedition (Art 139) • “Rise publicly and tumultuously” • Manner and purpose enumerated in Art. 139 (1-5) • To despoil means to render useless. • Killing appreciated as a separate criminal act from sedition as the provision of law does not include “taking of arms”, unlike in rebellion.

Inciting to Sedition (Art 142) • No crime as “proposal to commit sedition” • May be charge as principal by inducement to inciting to sedition • Mere vessel of rebel may not be convicted of rebellion (see case of Ka Beltran)

Act of Terrorism • In advent of Human Security Act of 2007, use of violence to demand government to give in to unlawful demand is act of terrorism • Once convicted/acquitted, may no longer be charged with rebellion. • Differentiate with complex crime(Art 48): In complex crime, cri inal act seen in the eyes of the law as a single offense and penalty is for serious crime in maximum period. Whereas in act of terrorism, if not all requisites are not proven, accused must be acquitted (unlike in ordinary crime, court may convict for lesser offense)

Disloyalty of Public Officers (Art 137) • Three ways to commit (see codal provisions) • If acts committed by private person, he is liable for rebellion, not for disloyalty • Only public officer or employee may commit this.

Violation of Parliamentary Immunity (Art 145) • No criminal prosecution (Only for libel or oral defamation) when committed in the performance of official function. • Ammended by 1987 Constitution: now, only for crimes with penalty of prision correctional • If policeman stops Congressman for violations with penalty not greater than prision correccional committed while he is on his way to Congress, policeman is liable.

Tending to Prevent Meetings of Legislature • Meeting, broader than sessions (Art 143)

Direct Assault (Art 148) • Two ways to commit: (1) First way, may be committed by anyone, and victim may be a private person (in relation to purposes of rebellion/sedition, sans public uprising); (2) Second way, victim is a public officer/person in authority. • Always without public uprising. • In second way, offender knows the victim is a person in authority/agent of persons in authority, as it is a defiance of authority (may be physical injury only) • In second method, attack directed to “performance or past performance of authority”

Persons in Authority/Agents (Art 152) • Person directly vested with jurisdiction. Barrio captain/brgy chairman included, only within their jurisdiction. • Agent of Persons in Authority – election or appointment/ maintenance of public order/protection of life and property/comes to aid of persons in authority • Lawyers, professors, SUCs – person in authority while in the performance of his duty • In relation to direct/indirect assaults • In relation to Art 151 – Resistance/disobedience

Direct Assault • Victim should still be engaged in public service. • If attendant with qualifying circumstance of treachery, then crime may be co mpolex crime of direct assault with frustrated murder.

Qualifying circumstances • Offender use a weapon • When offender is a public officer • When offender is a person in authority • PENALTY – in maximum period

Indirect Assault Art 149 • There must be direct assault • Attack directed to persons coming to the aid persons in authority • SC: “Chief of Police is a person in authority.”

Resistance (Art 151) • If resistance is serious, it is direct assault.

Unlawful Use of Publication (Art 154) • Not bearing real printer’s name • Offender must know what is publishing is false (false news)

Alarm and Scandal (Art 155) • Charivari (see “Boado’s Notes”) • “Midnight” • Naked in public • If playing with organ, grave scandal as contrary to morals.

Delivering Prisoners (Art 156) • Without custody, any person assisting in the escape of prisoner • Off duty jail officers • PREVENTIVE IMPRISONMENT – not covered • For escaped prisoner, offense is evasion of sentence (there must be a final conviction) under Art 157

Evasion of Sentence (Art 157) • Destierro included – though not imprisonment, it is deprivation of liberty (Same comment with Atty/Dr Gabao)

Evasion under Art 158 • Ammended,see Art 98 – 2/5 deductions if did not escape when afforded same opportunity • Note that there must be a proclamation of the President

Violation of Conditional Pardon (Art 159) • Subject to President’s discretion, but must be accepted by the convict. • Penalizes violation of condition.

Special Aggravating Circumstances • Habitual Deliquency – Art 22/62(5) • Reiteracion • Recidivisim – Art 14 (9) • Quasi Recidism – Art 160 • Cannot be offset

Forging Seal of President • Art 161 - person who forged the signature • Art 162 - person who used the document with forged signature

Forgery (Art 169/Public Interest) • Only pertaining to treasury or bank notes.

Falsification under Art 171 • There must not be “colorable truth” in statements (Para 4)

Falsification under Art 172 • Ecclesiastical minister's liability only in connection with status of persons. If not, then they are private individuals (see Art. 172) • “Semblance of similarity” between genuine and false.

Falsification & Estafa • There can be no complex crime of falsification and estafa (See Justice Mario Lopez’ handout)

Ursupation of Authority undeArt 177 • No need to perform function to be liable

Fictitious Name (Art 178) • Conceal crime • Prevent justice/evading execution • Causing damage, may be estafa. • In relation: Anti Alias Law • Without judicial approval • Exception: celebrities, sports men

Illegal Use of Uniform • Uniform that represents authority • If uniform of prisoner, no liability under Art 179

False Testimony (Art 180/181) • Degree of punishment depending on the outcome under Art 180 or against defendant. Trial needs to be terminated.

Perjury • Testifying false before agencies not judicial • Executing a false affidavit • Mere contradiction no liability except if malicious and proven with any other witnesses.

Grave Scandal (Art 200) • If windows are open, and private acts are open for public view, there may be liability such as when a man brings home his mistress to a private home. • Law aims to protect morals in general, not a single individual

Vagrants And Prostitutes (Art 292) • Under this proviion, only female may be prostitute (cross reference this with Child Abuse Law)

Crimes Committed by Public Officers • Public Officers – by direct provision of law, election or appointment (Art 203) • Malfeasance – perfomance of an act which should not be done • Misfeasance – misperformance • Non feasance – non performance an act which is required to be done • Only a judge may be liable from Art 204 to 207; labor arbiter, not judge though enjoying same salary and rank • SC and other collegial courts justices my not be liable

Unjust Judgment • A judge who accepts a bribe and performs the act for which he was bribe imay be liable for unjust judgment and bribery (“agree to perform an act constituting a crime”)

Betrayal of Trust by An Attorney (Art 209) • Consent of previous client is required,otherwise may be liable under Art 209

Direct/Indirect Bribery (Art 210-211) • Gift - tangible thing, something you can touch, not mere promise (Note: useful for indirect bribery since coinsideration of promise expressly included in direct bribery/qualified bribery ). • If lawful, the direct bribery of the second kind. • Except gift of small value not more than P50, 000, usually given during joyous occasion* • Formal crime (must be consummated)

Malversation of Public Funds • Intentional or through negligence • People vs Tabuena (MIA) • Gabao: “May be committed by private persons entrusted with public funds.” (property legally seized by public authority, as depository) • Add’l: as a co conspirator with public officer/accomplice/accessory • Return of fund is equal to voluntary surrender, if returned when demanded. If on trial, merely extinguishes civil liability

Technical Malversation (Art 220) • Illegal use of public funds • “Specific public purpose” diverted to another public purpose.

Maltreatment of Prisoners • May only be committed by one who has custody over the prisoner. If not with custody, mere physical injury only.

Abuse Against Chastity • Victim must always be female • If relatives of prisoners of victim, warden still liable?

Parricide • Only by blood relationship • Adopted children, not included

Exceptional Circumstances (Art 247) • Also applies to daughter not of age and living with parents • Also include acts resulting from outrage (collateral damage: reckless imprudence resulting to homicide only) • People vs Abarca

Murder • Treachery does not absorb evident premeditation but treated as generic aggravating circumstance

Physical Injury (Art 252) • Tumultuous affray – at least four persons involved, can not impute authorship of blows

Giving Assistance to Suicide • Penalty as if homicide is committed • No liability on the part of person who committed suicide (remember it may be successful or unsuccessful) • If unsuccessful, lesser penalty of arresto mayor

Dicharge of Firearms • Best evidence of intention to kill is death of the victim • Can an offender be convicted of discharge of firearms instead of attempted murder, if intent to kill is not proven? Yes.

Infanticide • Less than three days of age • If more than said age, parricide or homicide • Conceal dishonor, only mitigating (Only mother can claim this in abortion)

Mutilation • Two kinds: (1) intentional mutilation damage to sexual organ; and (2) other organ

JOKE TIME • Fiscal Salva: “Why does mutilation (Reclusion perpetual) have a higher penalty than homicide (prision mayor)? For one, the man can no longer fulfil his mandate to ‘Go Forth and Multiply’. Second, he will be known as the man without a weapon. Third, if the organ is not severed, he will be known as the man with dead weapon!”

Physical injury • Depending on healing period • Except physical injury specifically denominated as serious such as one that deforms the victim

Rape (Art 266) • New: fraudelent machination • New type of rape: sexual assault, by insertion his penis, object, instrument to mouth or anal orifice. • Don’t forget the two ways of committing rape in defining rape!

Kidnapping & Illegal Detention • What is serious illegal detention • Differentiate kidnapping and detention • When is illegal detention serious • Slight- victim can only be male not minor or female (if so, already serious)

Unlawful forrest • Purpose: delivering to authorities • Offender: Private Individuals/Off duty public officer

Slavery • Lesser penalty than kidnapping • Kidnapping means of committing • Services rendered for payment of debt (asked in the bar)

Trespass to Dwelling Vs Other Forms • See absolutory (codal Art 280) • If dwelling is abandoned, merely tresspass to property • If homicide is afterthought of trespass, two crimes results.

Threats and Coercion • Grave coercion – lawful purpose. If unlawful, kidnapping or forcible abduction • Ex: Lad wants to marry girl and deprived her liberty, grave coercion. But if he is married, kidnapping results. • Black Mail – Art 286 (publication for compensation

Robbery • Note the kinds of robbery (NOTE: Discussion is very codal) • Special complex crime of robbery (favorite bar question) • Can homicide resulting from negligence during robbery be complexed with crime of robbery? SC: No. See original Spanish text of para 1 Art 294 • Mere possession of pick locks penalized (preferatory act punishable) • False key – genuine key lost by owner. Mere possession not punishable.

PD 532 (Highway Robbery Brigandage) • Higher penalty than simple robbery • At least 4 armed man • Indiscriminate • SC: If there is only one victim targetted, there is no highway robbery brigandage.

Theft • Taking, with abuse of confidence, is qualified theft. • Very codal discussion

Swindling and Other Deceits • Art 315 (2)(d) in rel to BP 22 • Estafa – issuance of check is efficient cause. If bounces, two violation: one under RPC and BP 22. • Demand needed first. If within 3 days, it is paid, then no estafa. If not,presumption that it was issued worthless, liable fo estafa. • If compromised, bars prosecution of BP 22 (Complete defense). If dishonored, 5 banking days from notice (grace period). • Check issued for accomodation Etc, not a source of estafa • Mere non payment of board and lodging, collection for sum of money only, not estafa.

Access Device Law • If fake card is used to purchase, liable for estafa and special penal law of access device law. • Can not be complexed.

Grave Coercion vs Robbery • If a personal property is taken by owner against the will of unlawful possessor is not robbery (no intent to gain), but there is grave coercion (If lawful, estafa)

Arson • If somebody died, qualified arson. • If main purpose is to kill, crime is murder by means of fire. • Malicious mischief incompatible with arson, as long as it is due to hate to the prejudice of other persons.

BIGAMY • Punishment: Prision mayor (joke: with accesory penalty of “two mothers in law”) • SC: “No marriage, no bigamy where parties only signed marriage certificate without license nor registration.” (Bangayan vs Bangayan)

Cyber Libel • Same elements in RPC • “First accessed” – not proper laying of the venue, must be same In RPC: where it was published or actual residence of offended party.

Reckless Imprudence • Ivler case (double jeopardy) • In relation to complex crime under Art 48