UP Law Criminal Law Reviewer 2013 - Book 2

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Title I. Crimes against National Security and the Law of Nations

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(2) Inciting to War or Giving Motives for Reprisals (Art 118) – This can be committed even if the Philippines is not a participant. (3) Violation of Neutrality (Art. 119) – The Philippines is not a party to an on-going war. CRIMES AGAINST SECURITY ARTICLE 114 - TREASON

CRIMES AGAINST SECURITY: (1) Art. 114: Treason (2) Art. 115: Conspiracy and Proposal to Commit Treason (3) Art. 116: Misprision of Treason (4) Art. 117: Espionage

MODE 1: Levying War Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) The offender levies war against the government

CRIMES AGAINST THE LAW OF NATIONS (1) Art. 118: Inciting to War or Giving Motives for Reprisals (2) Art. 119: Violation of Neutrality (3) Art. 120: Correspondence with Hostile Country (4) Art. 121: Flight to Enemy’s Country (5) Art. 122: Piracy in General and Mutiny on the High Seas or in Philippine Waters (6) Art. 123: Qualified Piracy

MODE 2: Adherence to the Enemy and Giving of Aid or Comfort Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) That the offender adheres to the enemies, giving them aid or comfort

The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction.

Treason is a breach of allegiance to a government, committed by a person who owes allegiance to it. It cannot be committed in the time of peace. There are two ways of committing treason: (1) By levying war against the Government and (2) By adhering to the enemies of the Philippines, giving them aid or comfort. (Reyes, 2008)

This is one of the instances where the RPC may be given extra-territorial application under Article 2 (5) thereof. However, prosecution can proceed only if the offender is: (1) within Philippine territory, OR (2) brought to the Philippines pursuant to an extradition treaty.

To be treasonous, the extent of aid and comfort given to the enemies must be to render assistance to them as enemies and not as individuals, in the furtherance of the enemies’ hostile designs.

Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law.

Intent of disloyalty is a vital ingredient in the crime of treason, which in the absence of admission may be gathered from the nature and circumstances of each particular case. [People vs. Perez]

In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general.

Mode 1: Levying War Requirements: Levying war requires the concurrence of two things: (1) that there must be an actual assembling of men; (2) for the purpose of executing a treasonable design by force.

The acts against national security may be committed abroad and still be punishable under our law. General rule: Almost all of these are crimes committed in times of war.

There must be an actual assembling of men. The mere acceptance of the commission from the secretary of war of the Katipunan by the accused, nothing else having been done, was not an overt act of treason within the meaning of the law. [U.S. vs. De los Reyes]

Exceptions: The following can be committed in times of peace: (1) Espionage (Art 117) – This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage.

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The levying of war must be directed against the government. It must be with intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer. [Reyes, 2008; th citing 3 Wharton’s Criminal Law, 12 Ed.]

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The crime of treason is of such a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. [People vs. Victoria] Treason cannot be proved by circumstantial evidence or by the extrajudicial confession of the accused.

The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without any intention of helping an external enemy, the crime is not treason. The offenders may be held liable for rebellion under Article 135 in relation to Article 134 of the RPC. [Reyes, 2008]

Two Ways of Proving Treason (1)Testimony of at least two witnesses to the same overt act; or (2)Confession of accused in open court.[Article 114, par.2, RPC]

Mode 2: Adherence to the Enemy Adherence and giving aid or comfort to the enemy must concur. Adherence to the enemy means intent to betray. Aid or comfort means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy. [Cramer vs. US]

The Two-witness Rule The testimony of two witnesses is required to prove the overt act of giving aid or comfort. It is not necessary to prove adherence. Each of the witness must testify to the whole overt act; or if it is separable, there must be two witnesses to each part of the overt act. [People vs. Escleto] Adherence may be proved: (1) By one witness, (2) From the nature of the act itself, or (3) From the circumstances surrounding the act.

When there is no adherence to the enemy, the act which may do aid or comfort to the enemy does not amount to treason. [Reyes, 2008] Acceptance of public office and discharge of official duties under the enemy do not constitute per se the felony of treason. But when there is adherence to the enemy, then such constitute treason. [People vs. Sison]

Adherence need not be proven by two witness testimonies – may be inferred from one witness, or from the nature of the act itself or other circumstances [People vs. Adriano] Reason why Two-witness Rule does not apply to adherence: Adherence to the enemy is a state of mind. It is never susceptible of proof by direct testimony. [Reyes, 2008]

The term “enemies” applies only to the subjects of a foreign power in a state of hostility with the traitor’s country. [Reyes, 2008] The overt act of aid and comfort to the enemy must be intentional, as distinguished from merely negligent or undesigned ones. [Cramer vs. US]

Confession must be made in open court. Extrajudicial confession or confession made before the investigators is not sufficient to convict a person of treason. [Reyes, 2008]

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

Aggravating Circumstances Cruelty and ignominy are aggravating circumstances in treason.

Exception: But this rule would not preclude the punishment of murder or other common crimes as such, if the prosecution should elect to prosecute the culprit specifically for these crimes, instead of relying on them as an element of treason. [People vs. Prieto]

But evident premeditation is not considered as one since adherence and the giving of aid and comfort to the enemy is usually a long continued process requiring requiring reflective and persistent determination and planning.[People vs. Racaza]

Treason by a Filipino citizen can be committed outside of the Philippines. Treason by an alien must be committed in the Philippines.

Superior strength and treachery are circumstances inherent in treason. Treachery is merged in superior strength. Therefore, they are not aggravating in treason.[People vs. Adlawan]

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The presence of the aggravating circumstances of treachery, the aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not necessary in the commission thereof are inherent in the crime of treason and thus shall not be appreciated as aggravating circumstances. [People vs Victoria]

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(a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort General rule: Conspiracy and proposal to commit a felony is not punishable under Article 8. Exception: Under Article 115, mere conspiracy or proposal to commit treason is punishable. This is because, in treason, the very existence of the state is endangered. [Reyes, 2008]

Defense of Suspended Allegiance and change of sovereignty are not accepted because: (1)A citizen owes an absolute and permanent allegiance to his Government; (2)The sovereignty of the Government is not transferred to the enemy by mere occupation; (3)The subsistence of the sovereignty of the legitimate Government in a territory occupied by the military forces of the enemy during the war is one of the rules of International Law; and (4)What is suspended is the exercise of the rights of sovereignty.

The two-witness rule does not apply to conspiracy or proposal to commit treason because this is a separate and distinct offense from that of treason. [US vs. Bautista] ARTICLE 116 - MISPRISION OF TREASON

Elements: (1) Offender owes allegiance to the government, and is not a foreigner (2) He has knowledge of conspiracy to commit treason against the government (3) He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides

In addition to the defense of duress or uncontrollable fear, lawful obedience to a de facto Government is a good defense in treason. The Philippine Executive Commission, as well as the Republic established by the Japanese occupation army in the Philippines, had all the characteristics of a de facto Government. [Go Kim Cham vs. Valdez] Defense of loss of citizenship by joining the army of the enemy is not valid. The accused cannot divest himself of his Philippine citizenship by the simple expedient of accepting a commission in the military, naval or air service of such country. If his contention is sustained, his very crime would be the shield that would protect him from punishment. [People vs. Manayao]

Misprision of treason is a crime that may be committed only by citizens of the Philippines. It cannot be committed by a resident alien. The essence of the crime is that there are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time.

ARTICLE 115 - CONSPIRACY AND PROPOSAL TO COMMIT TREASON

Article 116 does not apply when the crime of treason is already committed by someone and the accused does not report its commission to the proper authority. The provision only speaks of “knowledge of any conspiracy against” the Government of the Philippines, not knowledge of treason actually committed by another. The criminal liability arises if the accused learned of the treasonous activity while still at the conspiratorial stage because if he learned of the treason when it had already erupted into an overt act, then the implication is that the government is already aware of it.

CONSPIRACY TO COMMIT TREASON

Elements: (1) There is a war in which the Philippines is involved (2) At least two persons come to an agreement to – (a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort (3) That person proposes its execution to other persons (4) They decide to commit it

The offender in misprision of treason is punished as an accessory to treason. Note that Article 116 does not provide for a penalty. However, the offender is a principal in the crime of misprision of treason.

PROPOSAL TO COMMIT TREASON

Elements: (1) There is a war in which the Philippines is involved (2) At least one person decides to –

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Any person in authority having the equivalent jurisdiction (of a mayor, fiscal or governor), like a provincial commander, will already negate criminal liability.

that the offender has the purpose to obtain any of them.

Blood relationship is always subservient to national security. Article 20 of the RPC regarding accessories who are exempt from criminal liability does not apply in this case because persons found liable for this crime are not considered accessories, but as principals.

Not conditioned by the Not conditioned by the citizenship of the offender citizenship of the offender

Article 116 is an exception to the rule that mere silence does not make a person criminally liable. [US vs. Caballeros]

May be committed in Limited only to two ways many ways of committing the crime: levying of war and adhering to the enemy giving him aid or comfort

Espionage

Treason

May be committed both in Committed only in time of time of war and in time of war peace

Under the Revised Penal Code, there is no crime of misprision of rebellion. ARTICLE 117 – ESPIONAGE

MODE 1: Entering of establishment to obtain confidential information regarding defense of the Philippines

Crimes against the Law of Nations

Elements: (1) That the offender enters a warship, fort, or naval or military establishment or reservation; (2) That he has no authority therefor; (3) That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.

ARTICLE 118 - INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: (1) Offender performs unlawful or unauthorized acts (2) The acts provoke or give occasion for (a) A war involving or liable to involve the Philippines; or (b) Exposure of Filipino citizens to reprisals on their persons or property

MODE 2: Disclosing by public officer of confidential information to a foreign representative Elements: (1) That the offender is a public officer; (2) That he has in his possession the articles, data or information of a confidential nature relative to the defense of the Philippines, by reason of the public office he holds; That he discloses their contents to a representative of a foreign nation.

This crime is committed in time of peace. The intention of the offender is immaterial. The law considers the effects produced by the acts of the accused. [Reyes, 2008l citing Viada] Examples [Reyes, 2008] The raising, without sufficient authorization, of troops within the Philippines for the service of a foreign nation against another nation.

Under paragraph 1 of Article 117, the offender is any person, whether a citizen or a foreigner, a private individual or a public officer.

The public destruction of the flag or seal of a foreign state or the public manifestations of hostility to the head or ambassador of another state.

Under paragraph 2, the offender must be a public officer who has in his possession the information by reason of the public office he holds.

ARTICLE 119 - VIOLATION OF NEUTRALITY Elements: (1) There is a war in which the Philippines is not involved (2) There is a regulation issued by a competent authority to enforce neutrality

To be liable under paragraph 1, the offender must have the intention to obtain information relative to the defense of the Philippines. It is not necessary that the information, etc. is obtained. It is sufficient

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foreigner.” Hence, the allegiance contemplated in this article is either natural or temporary allegiance. [Reyes, 2008]

(3) Offender violates the regulation Definition of neutrality. A nation or power which takes no part in a contest of arms going on between other countries.

Mere attempt to flee or go to enemy country consummates the crime.

ARTICLE 120 - CORRESPONDENCE WITH HOSTILE COUNTRY

ARTICLE 122 - PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS

Elements: (1) It is in time of war in which the Philippines is involved (2) Offender makes correspondence with an enemy country or territory occupied by enemy troops (3) The correspondence is either – (a) Prohibited by the government, or (b) Carried on in ciphers or conventional signs, or (c) Containing notice or information which might be useful to the enemy.

Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders are neither members of its complement nor passengers of the vessel (3) Offenders either – (a) Attack or seize that vessel; or (b) Seize the whole or part of its cargo, its equipment or personal belongings of its complement or passengers (4) There is intent to gain

Definition of Correspondence. Communication by means of letters which pass between those who have friendly or business relations.

Acts Punished in Piracy: (1) Attacking or seizing a vessel on the high seas or in Philippine waters (2) Seizing the whole or part of its cargo, complement or passengers while the vessel is on the high seas or in Philippine waters

Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the Government, it is punishable.

Definition of High Seas The Convention on the Law of the Sea defined it as parts of the seas that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state.

Prohibition by the Government is not essential in paragraphs 2 and 3 of Article 120. Circumstances qualifying the offense under sentence 2, paragraph 3 The following must concur together: (1)That the notice or information might be useful to the enemy, and (2) That the offender intended to aid the enemy.

Definition of Piracy It is robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. [People vs. Lol-lo]

If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason; hence, the penalty is the same as that for treason. [Reyes, 2008]

Mutiny Definition of Mutiny It is the unlawful resistance to a superior officer, or the raising of commotions and disturbances

ARTICLE 121 - FLIGHT TO ENEMY'S COUNTRY Elements: (1) There is a war in which the Philippines is involved (2) Offender must be owing allegiance to the government (3) Offender attempts to flee or go to enemy country (4) Going to the enemy country is prohibited by compete

Mutiny is punished in Article 122.Mutiny is usually committed by the other members of the complement and may be committed by the passengers of the vessel. Piracy

Mutiny

Persons who attack the Persons who attack the vessel or seize its cargo vessel or seize its cargo are strangers to said are members of the crew

An alien resident may be guilty of flight to enemy country. The law does not say “not being a

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Piracy

crew or passengers (4) The preceding were committed under any of the following circumstances: (a) Whenever they have seized a vessel by boarding or firing upon the same; (b) Whenever the pirates have abandoned their victims without means of saving themselves; or (c) Whenever the crime is accompanied by murder, homicide, physical injuries or rape

Mutiny

vessels

or passengers

Intent to gain is essential

Intent to gain is not essential. The offenders may only intend to ignore the ship’s officers or they may be prompted by a desire to commit plunder.

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Abetting Piracy In Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy.

If any of the circumstances in Article 123 is present, piracy is qualified. Paragraph 2 of Article 123 specifically mentions “pirates” thereby excluding mutineers from said paragraph. It would seem, however, that it should be in paragraph 1 where the word “pirates” should be specifically mentioned and not in paragraph 2, because in paragraph 1, the mutineers, being already in the vessel, cannot seize the vessel by boarding or firing upon the same. [Reyes, 2008]

Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy.

Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy.

Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code.

Although Article 123 refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) When the offenders abandoned the victims without means of saving themselves; or (2) When the mutiny is accompanied by rape, murder, homicide, or physical injuries The first circumstance which qualifies piracy does not apply to mutiny.

This provision of PD No. 532 with respect to piracy in Philippine waters has not been incorporated into the RPC. Neither may it be considered repealed by RA 7659 since there is nothing in the amendatory law which is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under PD No. 532.

PD 532: ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY

RA 9372 A person who commits an act punishable as piracy and mutiny under Article 122 thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.

DEFINITION OF TERMS

Section 2. Definition of Terms. The following terms shall mean and be understood, as follows: (a) Philippine Waters. It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction.

ARTICLE 123 - QUALIFIED PIRACY Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders may or may not be members of its complement, or passengers of the vessel (3) Offenders either – (a) Attack or seize the vessel; or (b) Seize the whole or part of its cargo, its equipment, or personal belongings of its

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place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing.

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penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed.

(c) Philippine Highway. It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both.

Section 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.

(d) Piracy. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided.

It shall be presumed that any person who does any of the acts provided in this Section has performed knowingly, unless the contrary is proven.

(e) Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway.

RA 6235: ANTI-HIJACKING LAW PUNISHABLE ACTS

Section 1. It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation.

PUNISHABLE ACTS

Section 3. Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by:

It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory.

(a) Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.

Section 3. It shall be unlawful for any person, natural or juridical, to ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, and explosive, flammable, corrosive or poisonous substance or material. Section 4. The shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics Administration

(b) Highway Robbery/Brigandage. The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the

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RA 9372: HUMAN SECURITY ACT OF 2007 SEC. 3.Terrorism. Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: (1) Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); (2) Article 134 (Rebellion or Insurrection); (3) Article 134-a (Coup d’etat), including acts committed by private persons; (4) Article 248 (Murder); (5) Article 267 (Kidnapping and Serious Illegal Detention); (6) Article 324 (Crimes Involving Destruction), (7) or under

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penalty of from seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment. SEC. 6.Accessory. Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

(1) Presidential Decree No. 1613 (The Law on Arson); (2) Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); (3) Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); (4) Republic Act No. 6235 (Anti-Hijacking Law); (5) Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and, (6) Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).

Title II. Crimes against Fundamental Laws of the State

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

(1) Art. 124: Arbitrary Detention (2) Art. 125: Delay in the Delivery Of Detained Persons to the Proper Judicial Authorities (3) Art. 126: Delaying Release (4) Art. 127: Expulsion (5) Art. 128: Violation of Domicile (6) Art.129: Search Warrants Maliciously Obtained and Abuse in the Service of those Legally Obtained (7) Art. 130: Searching Domicile Without Witnesses (8) Art. 131: Prohibition, Interruption and Dissolution of Peaceful Meetings (9) Art. 132: Interruption of Religious Worship (10) Art. 133: Offending the Religious Feelings

Who Are Liable SEC. 4.Conspiracy to Commit Terrorism. Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment. There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same. SEC. 5.Accomplice. Any person who, not being a principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 4 hereof, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the

Crimes under this title are those that violate certain provisions of the Bill of Rights. All offenses under this title can only be committed by public officers except offending the religious feelings

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under Article 133.

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In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. [Milo v. Salanga (1987)]

The primary offender in ARTICLES 124-132 is a public officer acting under supposed exercise of official functions, albeit illegally. A private person may be liable under these articles ONLY WHEN he: (1) Conspires with a public officer; OR (2) He becomes an accomplice or accessory to said crimes

There must be an actual restraint of liberty of the offended party. The crime committed is only grave or light threats if the offended party may still go to the place where he wants to go, even though there have been warnings.

ARTICLE 133 can be committed by EITHER a public officer OR a private person.

If the offender falsely imputes a crime against a person to be able to arrest him and appear not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. [Boado, Comprehensive Reviewer in Criminal Law]

ARTICLE 124 - ARBITRARY DETENTION Elements: (1) That the offender is a public officer or employee (2) That he detains a person (3) That the detention is without a legal ground.

A case where a DENR team was invited to Mayor Astorga’s house from 530pm to 230am for dinner and drinks, does not fall under Arbitrary Detention. Absent any physical restraint, an element of the said crime is fear. No record on evidence showed that the mayor instilled fear into the minds of the DENR team while they were in the Mayor’s house.[Astorga v. People (2004)]

The Crime of Arbitrary Detention assumes several forms: (1) Detaining a person without legal grounds (Article 124); (2) Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of 12, 18, or 36 hours, as the case may be (Article 125); or (3) Delaying release by competent authority with the same period mentioned in number 2 (Article 126).

Arrest without warrant is the usual cause of arbitrary detention. Difference between Arbitrary Detention, Illegal Detention and Unlawful Arrest Arbitrary Detention

The detention of a person is without legal ground: (1) when he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime, or (2) when he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital.

Public officer (1) Private Any person who has person; authority to OR make arrests (2) Public and detain officer persons who is acting in a private capacity or beyond the scope of his official duty

Criminal Intent

Violate the offended party’s constitutional freedom

A police officer who employs force in excess of what is necessary is acting outside the bounds of his duties and is considered acting in his private capacity.[Boado, Comprehensive Reviewer in Criminal Law]

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Unlawful Arrest

Offender

A public officer is deemed such when he is acting within the bounds of his official authority or function.

In the crime of arbitrary detention, although the offender is a public officer, not any public officer can commit this crime. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime.

Illegal Detention

Deprive the offended party of his personal liberty

Accuse the offended party of a crime he did not

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Arbitrary Detention against warrantless arrest

Illegal Detention

Unlawful Arrest commit, deliver him to the proper authority, and file the necessary charges to incriminate him

ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES Elements: (1) Offender is a public officer or employee (2) He detains a person for some legal ground (3) He fails to deliver such person to the proper judicial authorities within – (a) 12 hours for light penalties (b) 18 hours for correctional penalties (c) 36 hours for afflictive or capital penalties

BAR OPERATIONS COMMISSION

Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken NOT as a strictly voluntary invitation. It is an authoritative command that one can only defy at one’s peril. [Sanchez v. Demetriou (1993)] Detained person should be released when a judge is not available. [Albior vs. Aguis (2003)] Waiver of the provisions of Article 125 Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with Rule 112 of the Revised Rules of Criminal Procedure, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception. (Section 7,par. 2, Rule 112 of the Revised Rules of Criminal Procedure) ARTICLE 126 - DELAYING RELEASE Elements: (1) Offender is a public officer or employee (2) There is a: (a) Judicial or executive order for the release of a prisoner or detention prisoner, OR (b) A proceeding upon a petition for the liberation of such person (3) Offender without good reason delays – (a) The service of the notice of such order to the prisoner (b) The performance of such judicial or executive order for the release of the prisoner; OR (c) The proceedings upon a petition for the release of such person

This is applicable only when the arrest is without a warrant. But the arrest must be lawful. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. Detention becomes arbitrary when the: (1) Applicable period lapses (2) Without the arresting officer filing a formal charge with the proper court. The periods stated are counted only when the prosecutor’s office is ready to receive the complaint or information. Nighttime is not included in the period. “Delivery” means the filing of correct information with the proper court (or constructive delivery -turning over the person arrested to the jurisdiction of the court). The purpose is to determine whether the offense is bailable or not. (Upon delivery, judge or court acquires jurisdiction to issue an order of release or of commitment of prisoner.) [Sayo v. Chief of Police (1948)]

ARTICLE 127 – EXPULSION

The elements of custodial investigation are: (1) The suspect is deprived of liberty in any significant manner; (2) The interrogation is initiated by law enforcement authorities; (3) The interrogation is inculpatory in character. [People v. Tan (1998)]

The city mayor of Manila committed the crime of expulsion when he ordered certain prostitutes to be transferred to Davao WITHOUT observing due process since they have not been charged with any crime. [Villavicencio v. Lukban (1919)]

Elements: (1) Offender is a public officer or employee (2) He either – (a) Expels any person from the Philippines; OR (b) Compels a person to change residence (c) Offender is not authorized to do so by law.

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The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the Liberty of Abode and the right to travel.

(2) (3) (4) (5) (6)

However, it is a well-settled view that the right to return may be considered as a generally accepted principle of international law and, under the Constitution, forms part of the law of the land. However, it is distinct and separate from the right to travel.

BAR OPERATIONS COMMISSION

Search of moving vehicles; Evidence in plain view; Stop and frisk; Customs searches; AND Consented warrantless search.

[M]ere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.

The constitutional guarantees invoked by the Marcoses are neither absolute nor inflexible for the exercise of such freedoms has limits and must adjust to the concerns which involve the public interest.[Marcos v. Manglapus (1989)]

Finally, a "stop-and-frisk" serves a two-fold interest: (1) The general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) The more pressing interest of safety and selfpreservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat v. CA (1997)]

ARTICLE 128 - VIOLATION OF DOMICILE Acts punished: (1) Entering any dwelling against the will of the owner thereof (2) Searching papers or other effects found therein without the previous consent of such owner, OR (3) Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same Elements COMMON to the three acts: (1) Offender is a public officer or employee (2) He is not authorized by judicial order – (a) To enter the dwelling; (b) To make a search therein for papers or other effects; or (c) He refuses to leave, after having surreptitiously entered such dwelling and been required to leave the same

“Against the will” means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado, Comprehensive Reviewer in Criminal Law] The offender must be a public officer or employee. If the offender is a private individual then the crime is trespass to dwelling under Article 280.

Qualifying circumstances: (1) Night time (2) Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender.

ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Elements of procuring a search warrant without just cause: (1) Offender is a public officer or employee (2) He procures a search warrant (3) There is no just cause

RULE 113 OF THE REVISED RULES OF COURT: a public officer, who breaks into the premises, incurs no liability WHEN a person to be arrested enters said premises and closes it thereafter, provided that the officer first gives a notice of arrest.

Elements of exceeding authority or using unnecessary severity in executing a search warrant legally procured: (1) Offender is a public officer or employee (2) He has legally procured a search warrant (3) He exceeds his authority or uses unnecessary severity in executing the same.

The public officer should have first given notice of an arrest. According to People vs. Doria (1999) and People vs. Elamparo (2000), the following are the accepted exceptions to the warrant requirement: (1) Search incidental to an arrest; PAGE 115

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ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES

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(1) leave a receipt in the place in which he found the seized property; (2) In the presence of at least two witnesses of sufficient age and discretion residing in the same locality.

Elements: (1) Offender is a public officer or employee (2) He is armed with search warrant legally procured (3) He searches the domicile, papers or other belongings of any person (4) The owner, or any members of his family, or two witnesses residing in the same locality are not present.

ARTICLE 131 - PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS Elements: (1) Offender is a public officer or employee (2) He performs any of the following acts: (a) Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same (b) Hindering any person from joining any lawful association, or from attending any of its meetings (c) Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances

RULE 116: SEARCH AND SEIZURE A search warrant is an order in writing (1) Signed by a judge (2) Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court Requisites for issuing a search warrant: (1) Probable cause, in connection with one specific offense, to be determined personally by the judge AFTER examination under oath or affirmation of the complainant and the witness he may produce (2) Particular description of: (a) Place to be searched; AND (b) Things to be seized which may be anywhere in the Philippines

The government has a right to require a permit before any gathering can be made. HOWEVER, the government only has regulatory, NOT PROHIBITORY, powers with regard to such requirement. The permit should state the day, time, and place of the gathering. If the permit is denied arbitrarily, OR the officer dictates the place where the meeting is to be held, this article is VIOLATED.

An officer may break open any outer or inner door or window of a house or any part of a house or anything therein WHEN these circumstances concur: (1) He is refused admittance to the place of directed search; (2) His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and (3) He has given notice of his purpose and authority.

If in the course of the assembly, which started out peacefully, the participants committed illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. Two criteria to determine whether this article would be violated: (1) Dangerous tendency rule – applied during times of national unrest such as to prevent coup d’etat. (2) Clear and present danger rule – applied during times of peace. Stricter rule.

The warrant must direct that it be served in the daytime. HOWEVER, it can be served at any time of the day or night WHEN the affidavit asserts that the property is on the person or in the place ordered to be searched. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

ARTICLE 132 - INTERRUPTION OF RELIGIOUS WORSHIP

The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made.

Elements: (1) Offender is a public officer or employee (2) Religious ceremonies or manifestations of any religion are about to take place or are going on (3) Offender prevents or disturbs the same

In the absence of such occupant, the officer must:

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RA 9372 : HUMAN SECURITY ACT Circumstances qualifying the offense: if the crime is committed with violence or threats.

PERIOD OF DETENTION

SEC. 18. Period of Detention Without Judicial Warrant of Arrest. – The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.

ARTICLE 133 - OFFENDING THE RELIGIOUS FEELINGS Elements: (1) Acts complained of were performed in a place devoted to religious worship, OR during the celebration of any religious ceremony (2) The acts must be notoriously offensive to the feelings of the faithful. In the phrase “in a place devoted to religious worship,” it is not necessary that there is a religious ceremony going on when the offender performs acts notoriously offensive to the feelings of the faithful. The phrase “during the celebration” is separated by the word “or” from the phrase “place devoted to religious worship,” which indicates that the “religious ceremony” need not be celebrated in a place of worship. [Reyes (2008)] Jurisprudence: A Catholic priest complained against a group that passed by the churchyard as they were holding the funeral rites of a Church of Christ member.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the judge shall forthwith submit his/her report within three (3) calendar days from the time the suspect was brought to his/her residence or office.

An act is NOTORIOUSLY OFFENSIVE to the religious feelings when a person: (1) Ridicules or makes light of anything constituting religious dogma (2) Works or scoffs at anything devoted to religious ceremonies (3) Plays with or damages or destroys any object of veneration of the faithful WON an act is offensive to the religious feelings, is a question of fact which must be adjudged only according to the feelings of the Catholics and not those of other faithful ones. [People v. Baes (1939)] Laurel Dissent: The determination should NOT be made to depend upon a more or less broad or narrow conception of any given religion. Facts and circumstances should be viewed through an unbiased judicial criterion. (Note: This later became the majority decision in People v. Tengson)

Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.

The crime is only UNJUST VEXATION when the act is NOT directed at the religious belief itself and there is no intention of causing so serious a disturbance as to interrupt a religious ceremony. [People v. Nanoy]

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The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.

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(5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position;

SEC. 19.Period of Detention in the Event of an Actual or Imminent Terrorist Attack. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three (3) days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, That within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.

(7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and

RA 9745: ANTI-TORTURE ACT PUNISHABLE ACTS

(14) Other analogous acts of physical torture; and

Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following:

(b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as:

(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

(1) Blindfolding; (2) Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;

(1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

(3) Confinement in solitary cells or secret detention places;

(2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

(4) Prolonged interrogation;

(3) Electric shock;

(5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

(4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

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corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed. This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP. A copy of the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by the same agencies, within the first five (5) days of every month at the minimum. Every regional office of the PNP, AFP and other law enforcement agencies shall also maintain a similar list far all detainees and detention facilities within their respective areas, and shall make the same available to the public at all times at their respective regional headquarters, and submit a copy. updated in the same manner provided above, to the respective regional offices of the CHR.

(7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture. Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.

WHO ARE LIABLE

Section 13. Who are Criminally Liable. - Any person who actually participated Or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals.

Section 6. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Bight. - Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.

The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other

Section 7. Prohibited Detention. - Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity. Are hereby prohibited. In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law enforcement. agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the

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cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.

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(18) Article 150 - Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions (19) Article 153 - Tumults and Other Disturbances of Public Order (20) Article 151 - Resistance and Disobedience to a Person in Authority or the Agents of Such Persons (21) Article 154 - Unlawful Use of Means of Publication and Unlawful Utterances (22) Article 156 - Delivering Persons from Jail (23) Article 155 - Alarms and Scandals (24) Article 157 - Evasion of Service of Sentence (25) Article 159 - Other Cases of Evasion of Service of Sentence (26) Article 158 - Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities (27) Article 160 - Quasi Recidivism

Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or(c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions.

CHAPTER I - REBELLION, SEDITION AND DISLOYALTY

COUP

D’ETAT,

ARTICLE 134 - REBELLION /INSURRECTION

Elements: (1) There is a public uprising and taking arms against the government; (2) The purpose of the uprising or movement is: (a) To remove from the allegiance to the government or its laws the Philippine territory or any part thereof, or any body of land, naval, or other armed forces; or (b) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives

Title III. Crimes against Public Order (1) Article 134 - Rebellion/Insurrection (2) Article 134-A - Coup d’ État (3) Article 135 - Penalty for Rebellion, Insurrection or Coup d’ État (4) Article 136 - Conspiracy and Proposal to Commit Coup d’ État, Rebellion or Insurrection (5) Article 137 - Disloyalty of Public Officers or Employees (6) Article 138 - Inciting to Rebellion or Insurrection (7) Article139 – Sedition (8) Article141 - Conspiracy to Commit Sedition (9) Article142 – Inciting to Sedition (10) Article140 - Persons Liable for Sedition (11) Article 143 - Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies (12) Article 144 - Disturbance of Proceedings (13) Article 145 - Violation of Parliamentary Immunity (14) Article 146 - Illegal Assemblies (15) Article 147 - Illegal Associations (16) Article 148 - Direct Assault (17) Article 149 - Indirect Assault

Rule on Complexing of Rebellion: Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellion. There is no complex crime of rebellion with murder and other common crimes. Jurisprudence: The doctrine laid down in People v. Hernandez remains good law. This prohibits the complexing of rebellion with any other offense committed in the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion. [Enrile v Salazar (1990)] All crimes, whether punishable under special or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and

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cannot be isolated and charged as separate crimes themselves.[Ponce Enrile v Amin (1990)]

Rebellion vs. Sedition

Both motive and overt acts are essential components of the crime of rebellion. If the political motive of a supposedly rebellious act cannot be sufficiently proven, the accused should be convicted of the common crime (e.g. murder) and not of rebellion.

There must be taking up It is sufficient that the of arms against the public uprising be government. tumultuous.

Rebellion

The purpose is always The purpose may political. political or social.

Rebellion is not covered by Art. 2 on extraterritorial jurisdiction. [People v. Lovedioro (1995)]

Insurrection

ARTICLE 134-A - COUP D’ ÉTAT

Object is to completely A movement seeking to overthrow and supplant effect some change of the existing government minor importance or to prevent the exercise of governmental authority with respect to particular matters or subjects

Elements: (1) Offender is a person or persons belonging to the military or police or holding any public office or employment; (2) It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; (3) The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; (4) The purpose of the attack is to seize or diminish state power.

Rebellion vs. Treason Rebellion

Treason

The levying of war against the government during peace time for any purpose mentioned in Art. 134

The levying of war against the government would constitute treason when performed to aid the enemy; it would also constitute adherence to the enemy, giving him aid and comfort

Persons who may commit coup d’etat: (1) It may be committed singly or collectively (2) Requires as a principal offender a member of the AFP, PNP, or a public officer with or without civilian support

Always involves taking up Mere adherence to the arms against the enemy giving him aid and government. comfort

The crime of coup d’etat may be committed with or without civilian participation.

NOTE: No crime of misprision of rebellion.

Coup d’etat, when considered as Terrorism A person who commits an act punishable as coup d’etat under Article 134-A of the Revised Penal Code, including acts committed by private persons, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.

Rebellion vs. Subversion Rebellion Crime order

against

be

NOTE : When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form.

Rebellion vs. Insurrection Rebellion

Sedition

Subversion public Crime against national security

There must be public Being officers and ranking uprising to overthrow the members of subversive government groups constitute subversion

ARTICLE 135 - PENALTY FOR REBELLION, INSURRECTION OR COUP D’ ÉTAT

NOTE: There is no longer a crime of subversion by virtue of RA 7636, which repealed RA 1700.

Persons liable for rebellion, insurrection or coup d'etat (1) The leaders: (a) Any person who promotes, maintains or heads a rebellion or insurrection; or (b) Any person who leads, directs or commands PAGE 121

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Conspiracy

Proposal

Mode 2: Proposal to commit coup d’état, rebellion or insurrection

when two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it

when the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons

Elements: (1) A person has decided to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) Such person proposes its execution to some other person or persons ARTICLE 137 EMPLOYEES

others to undertake a coup d'etat; (2) The participants: (a) Any person who participates or executes the commands of others in rebellion or insurrection; (b) Any person in the government service who participates or executes directions or commands of others in undertaking a coup d’etat; (c) Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d'etat. (d) If under the command of unknown leaders, any person who directed the others, spoke for them, signed receipts and other documents issued in their name on behalf of the rebels shall be deemed a leader.

- DISLOYALTY OF PUBLIC OFFICERS OR

Elements: (1) Offender is a public officer or employee; (2) Offender commits any of the following acts: (a) Failing to resist a rebellion by all the means in their power; (b) Continuing to discharge the duties of their offices under the control of the rebels (c) Accepting appointment to office under them. The crime presupposes rebellion committed by other persons. Offender must not be in conspiracy with the rebels. Effect of conspiracy: Public officer is himself guilty of rebellion. ARTICLE 138 - INCITING TO REBELLION OR INSURRECTION

It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the Government. [US vs. del Rosario]

Elements: (1) Offender does not take arms or is not in open hostility against the government; (2) He incites others to the execution of any of the acts of rebellion; (3) The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.

Mere silence or omission is not punishable in rebellion. [US vs. Ravidas] There is no complex crime of rebellion with murder and other common crimes. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. [ Enrile vs. Amin (1990)]

NOTE: There is no crime of inciting to treason. Inciting to Rebellion vs. Proposal to Commit Rebellion Proposal to Commit Inciting to Rebellion Rebellion

ARTICLE 136 - CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ ÉTAT, REBELLION OR INSURRECTION

Mode 1: Conspiracy to commit coup d’état, rebellion or insurrection

The offender induces another to commit rebellion. Rebellion should not be actually committed by the persons to whom it is proposed or who are incited. Otherwise, they become principals by inducement in the crime of rebellion.

Elements: (1) Two or more persons come to an agreement to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) They decide to commit it.

The person who proposes There is no need that the has decided to commit offender has decided to rebellion. commit rebellion.

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Proposal to Commit Rebellion

CRIMINAL LAW: BOOK TWO

Sedition vs. Coup d’etat

Inciting to Rebellion

The person who proposes The act of inciting is done the execution of the crime publicly. uses secret means. ARTICLE 139 - SEDITION

Coup d’etat

There is no distinction as to who may commit; a private individual may commit the offense

Offender belongs to the military or police or holding any public office or employment

Sedition vs. Treason Sedition

Treason

It is the raising of It is the violation by a commotions or subject of his allegiance disturbances in the State. to his sovereign. A friction between the Philippine constabulary and the Manila police escalated and resulted in the deaths of 6 policemen and 2 civilians and in the serious injuries of 3 civilians. The Court held that unlike the crime of rebellion, common crimes committed in the occasion of sedition are to be appreciated as separate crimes.[People v Cabrera (1922)] ARTICLE 140 - PERSONS LIABLE FOR SEDITION

(1) The leader of the sedition; (2) Other person participating in the sedition ARTICLE 141 - CONSPIRACY TO COMMIT SEDITION

Tumultuous: If caused by more than three persons who are armed or provided with the means of violence. (Art. 163)

Elements: (1) Two or more persons come to an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition; (2) They decide to commit it.

The purpose of this crime is not the overthrowing of the government but the violation of public peace. Under R.A. 8294, sedition absorbs the use of unlicensed firearm as an element thereof; hence, it is not an aggravating circumstance, and the offender can no longer be prosecuted for illegal possession of firearm. (Boado, Comprehensive Reviewer in Criminal Law).

NOTE: There is no proposal to commit sedition. ARTICLE 142 – INCITING TO SEDITION

Mode 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.

Sedition vs. Rebellion Rebellion

Elements: (1) Offender does not take direct part in the crime of sedition; (2) He incites others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending towards the same end.

There must be a public uprising. It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. government. The purpose of the The purpose offenders may be political offenders is or social political.

Sedition

Primary purpose is to To seize or to diminish disturb public peace state power

Elements: (1) Offenders rise publicly and tumultuously; (2) Offenders employ force, intimidation, or other means outside of legal methods; (3) Purpose is to attain any of the following objects: (a) To prevent the promulgation or execution of any law or the holding of any popular election; (b) To prevent the national government or any provincial or municipal government or any public officer from exercising its or his functions, or prevent the execution of an administrative order; (c) To inflict any act of hate or revenge upon the person or property of any public officer or employee; (d) To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; (e) To despoil for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof.

Sedition

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of the always

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Mode 2.

Uttering seditious words or speeches which tend to disturb the public peace;

Mode 3.

Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

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CHAPTER II - CRIMES AGAINST POPULAR REPRESENTATION ARTICLE 143 - ACTS TENDING TO PREVENT THE MEETING OF THE CONGRESS OF THE PHILIPPINES AND SIMILAR BODIES

Elements: (1) There is a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board; (2) Offender, who may be any person, prevents such meetings by force or fraud.

Elements: (1) Offender does not take part in the crime of sedition. (2) He uttered words or speeches and writing, publishing or circulating scurrilous libels and that (a) Tend to disturb or obstruct any lawful officer in conducting the functions of his office; (b) Tend to instigate others to cabal and meet together for unlawful purposes; (c) Suggest or incite rebellious conspiracies or riots; OR (d) Lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government.

ARTICLE 144 - DISTURBANCE OF PROCEEDINGS

Elements: (1) There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; (2) Offender does any of the following acts: (a) He disturbs any of such meetings; (b) He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it.

Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to Sedition.

Complaint may be filed by a member of the legislative body. One who disturbs may also be punished for contempt by Congress.

Article 142 is, therefore, quite broad.

ARTICLE 145 - VIOLATION OF PARLIAMENTARY IMMUNITY

Mode 1: Using force, intimidation, threats, or frauds to prevent any member of Congress from attending the meetings of Congress or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinion or casting his vote; Elements: (1) Offender uses force, intimidation, threats or fraud; (2) The purpose of the offender is to prevent any member of Congress from: (a) Attending the meetings of the Congress or of any of its committees or constitutional commissions; (b) Expressing his opinion; OR (c) Casting his vote.

Constitutional Tests relative to seditious words: Clear and Present Danger Rule: The words must be of such nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent. The danger must not only be probable but very likely inevitable. Dangerous Tendency Rule: If the words used tend to create a danger of public uprising, then those words could properly be the subject of a penal clause The manifest, unmistakable tendency of the dramatic play, in view of the time, place, and manner of its presentation, was to inculcate a spirit of hatred and enmity against the American people and the Government of the US in the Philippines.[US v Tolentino (1906)]

Note: Offender in mode 1 is any person Mode 2: Arresting or searching any member thereof while Congress is in regular or special session,

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except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor.

(2) Persons merely present at the meeting, who must have a common intent to commit the felony of illegal assembly.

Elements: (1) Offender is a public officer of employee; (2) He arrests or searches any member of Congress; (3) Congress, at the time of arrest or search, is in regular or special session; (4) The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor.

In the first form of illegal assembly, the persons present at the meeting must be armed. But the law does not require that all the persons present must be armed. The unarmed persons present at the meeting are also liable. Presumptions if a person carried an unlicensed firearm: (1) The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC (2) He is considered a leader or organizer of the meeting.

Parliamentary immunity does not protect members of Congress from responsibility in accordance with the disciplinary rules of Congress itself. 1987 Constitution: Members of Congress cannot be arrested for offenses punishable by a penalty less than prision mayor (6 yrs and 1 day to 12 yrs), while Congress is in session. They can be prosecuted after Congress adjourns.

NOTE: Not all persons present at the meeting of the first form of illegal assembly must be armed. ARTICLE 147 - ILLEGAL ASSOCIATIONS

(1) Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code; (2) Associations totally or partially organized for some purpose contrary to public morals.

CHAPTER III – ILLEGAL ASSEMBLIES AND ASSOCIATIONS ARTICLE 146 - ILLEGAL ASSEMBLIES

Mode 1: Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code;

Persons liable for illegal associations: (1) Founders, directors and president of the association; (2) Mere members of the association.

Elements: (1) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (2) The meeting is attended by armed persons; (3) The purpose of the meeting is to commit any of the crimes punishable under the Code.

Public Morals: matters which affect the interest of society and public convenience, not limited to good customs Illegal Assemblies vs. Illegal Associations Illegal Assembly

Illegal Association

Mode 2: Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon person in authority or his agents.

There must be an actual Actual meeting meeting or assembly necessary

Elements: (1) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (2) The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault.

Persons liable: Persons liable: (1) Organizers or leaders (1) Founders, directors, of the meeting president (2) Persons present (2) The members See also: BP 880 - Public Assembly Act of 1985

not

What is punished are the What is punished is the meeting and the act of forming or attendance therein organizing the association

Persons liable for illegal assembly: (1) The organizer or leaders of the meeting;

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CHAPTER IV - ASSAULT UPON AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS

corporation, board, or commission, shall be deemed a person in authority. “Directly vested with jurisdiction” means the power or authority to govern and execute the laws.

ARTICLE 148 - DIRECT ASSAULT

Mode 1.

Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;

Teachers, professors and persons in charged with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority, in applying the provisions of Articles 148 and 151. For other purposes, such as to increase the penalty by reason of the aggravating circumstances where a person in authority is involved, the teachers and professors are not persons in authority.

Elements: (1) Offender employs force or intimidation; (2) The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; (3) There is no public uprising. Mode 2.

When the assault results in the killing of that agent or of a person in authority, the offense committed is complex crime of direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony.

Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.

The force employed need not be serious when the offended party is a person in authority;

Elements: (1) Offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance; (2) The person assaulted is a person in authority or his agent; (3) At the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, OR that he is assaulted by reason of the past performance of official duties; (4) Offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. (5) There is no public uprising.

Intimidation or resistance must be serious whether the offended party is a person in authority OR an agent of a person in authority If the public officer is not a person in authority, the assault on him is an aggravating circumstance in Art. 14, no. 3 (rank). (Boado, Comprehensive Reviewer in Criminal Law). There must be however an intent to disregard the victim’s rank. Gabutero was acting in the performance of his duties [as he was trying to pacify Dollantes who was causing trouble] as barangay captain when he was stabbed to death. Thus, the crime committed was murder with assault upon a person in authority.[People v. Dollantes (1987)]

The first form of direct assault is tantamount to rebellion or sedition, except that there is no public uprising.

ARTICLE 152 - PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY

Classifications of direct assault: simple and qualified. Assault is qualified when: (1) There is a weapon employed in the attack (2) The offender is a public officer (3) The offender lays hands on a public authority “Person in authority” means any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental

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Public Officer (Art. Persons in 207) Authority (Art. 152) Any person who takes part in the performance of public functions in the government.

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Any person directly vested with jurisdiction, whether as an individual or as a

Agents of a Person in Authority (Art. 152) Any person who, by direct provision of law or by election or by appointment by competent

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Public Officer (Art. Persons in 207) Authority (Art. 152)

Agents of a Person in Authority (Art. 152)

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witnesses; Mode 2.

By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official;

Mode 3.

By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions;

Mode 4.

By restraining another from attending as a witness in such legislative or constitutional body;

A person in authority includes a barangay chairman and members of the Lupong Tagapagkasundo as provided under the Local Government Code. [Boado]

Mode 5.

By inducing disobedience to a summons or refusal to be sworn by any such body or official.

The status as a person in authority being a matter of law, ignorance thereof is no excuse.

The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire.

member of some court or governmental corporation, board or commission.

authority, charged with maintenance public order the protection security of life property.

is the of and and and

Teachers, lawyers and heads of schools recognized by government are persons in authority only for purposes of Art. 152 in relation to Arts. 148 and 151, and in connection with their duties.

ARTICLE 149 - INDIRECT ASSAULT

ARTICLE 151 - RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS

Elements: (1) A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; (2) A person comes to the aid of such authority or his agent; (3) Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent.

Mode 1:

Elements: (1) A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; (2) Offender resists or seriously disobeys such person in authority or his agent; (3) The act of the offender is not included in the provision of Articles 148, 149 and 150.

Indirect assault can only be committed when a direct assault is also committed.

Mode 2:

Article 152 clothes any person who comes to the aid of a person in authority with the fiction of an agent of a person in authority.

Simple disobedience

Elements: (1) An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; (2) Offender disobeys such agent of a person in authority; (3) Such disobedience is not of a serious nature

Any assault on him on the occasion of his aiding a person in authority or his agent is indirect assault. ARTICLE 150 - DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS

Mode 1.

Resistance and serious disobedience

Resistance and Serious Disobedience The accused must have knowledge that the person giving the order is a peace officer. [US vs. Bautista]

By refusing, without legal excuse, to obey summons of Congress, its special or standing committees and subcommittees, the Constitutional Commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon

The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent.

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Simple Disobedience In simple disobedience, the offended party must be only an agent of a person in authority. The order must be lawful. The disobedience should not be of a serious nature.

If done unconsciously or without intent to incite the listeners to rise to sedition or rebellion, this article applies. If done with intent to commit rebellion or sedition: The crime is inciting to rebellion or sedition.

Serious Disobedience vs. Direct Assault Serious Disobedience

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Direct Assault

Definition of “tumultuous”: If caused by more than 3 persons who are armed or provided with the means of violence

Person in authority or his The person in authority or agent must be in actual his agent must be performance of his duties engaged in the performance of official duties or that he is assaulted

Definition of “burying with pomp the body of a person”: ostentatious display of a burial ARTICLE 154 - UNLAWFUL USE OF PUBLICATION AND UNLAWFUL UTTERANCES

Committed only by Committed in four ways resisting or seriously (see Art. 148, Mode 2 disobeying a person in above) authority or his agent

OF

Mode 1.

Publishing or causing to be published, by means of printing, lithography or any other means of publication, as news any false news which may endanger the public order, or cause damage to the interest or credit of the State.

Mode 2.

Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches;

Use of force in resistance There is force employed is not so serious, as there is no serious

CHAPTER V - PUBLIC DISORDERS

MEANS

ARTICLE 153 - TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER

Mode 1:

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

Mode 3:

Mode 2:

Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Arts. 131 and 132;

Maliciously publishing or causing to be published any official document or resolution without proper authority, or before they have been published officially

Mode 4:

Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous.

Mode 3:

Making any outcry tending to incite rebellion or sedition in any meeting, association or public place;

Mode 4:

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

Mode 5:

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

To be liable, the offender must know that the news is false. Actual public disorder or actual damage to the credit of the State is not necessary. The mere possibility of causing such danger or damage is sufficient.

Serious disturbance must be planned or intended. This article applies if the disturbance is not caused by a public officer; or, if it is committed by a public officer, he is a participant therein.

ARTICLE 155 - ALARMS AND SCANDALS

Definition of “outcry”: to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition. PAGE 128

Mode 1:

Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm or danger;

Mode 2:

Instigating or taking an active part in any charivari or other disorderly meeting

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criminally liable for leaving the penal institution only when there is evasion of the service of his sentence, which can only be committed only by a convict by final judgment.

offensive to another or prejudicial to public tranquility; Mode 3:

Mode 4:

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Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements;

Offender is usually an outsider. The violation of Article 156 is committed by a public officer when he is not the custodian of the prisoner at the time the prisoner was made to escape. If the offender is a public officer who had the prisoner in his custody or charge, he is liable for infidelity in the custody of a prisoner under Article 223.

Causing any disturbances or scandal in public places while intoxicated or otherwise, provided Art. 153 is not applicable.

The crime “alarms and scandal” is only one crime.

If three persons are involved – a stranger, the custodian and the prisoner – three crimes are committed: (1) Infidelity in the custody of prisoners [public officer-custodian]; (2) Delivery of the prisoner from jail [stranger]; and (3) Evasion of service of sentence [prisoner].

Scandal here does not refer to moral scandal; that one is grave scandal in Article 200. The essence of the crime is disturbance of public tranquility and public peace. Disturbance of serious nature falls under Article 153, not under paragraph 4 of this article.

Cledera, as the governor, is the jailer of the Province. Esmeralda is the Assistant Provincial Warden. As public officials who have the custody or charge of the prisoner, they cannot be prosecuted under Art. 156.

Any kind of disturbance of public order where the circumstance at the time renders the act offensive to the tranquility prevailing, the crime is committed. Definition of charivari: includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult

Art 223 would have applied; however, there is no sufficient evidence to warrant their prosecution for infidelity in the custody of prisoner. It is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. [Alberto v. Dela Cruz (1980)]

NOTE: “Calculated to cause” should be “which produces” alarm and danger according to the correct translation of the RPC. Hence, the result, and not the intent, that counts. (Reyes)

CHAPTER VI - EVASION OF SERVICE OF SENTENCE

ARTICLE 156 - DELIVERING PRISONERS FROM JAIL

ARTICLE 157 - EVASION OF SERVICE OF SENTENCE

Elements: (1) There is a person confined in a jail or penal establishment; (2) Offender removes therefrom such person, or helps the escape of such person.

Elements: (1) Offender is a convict by final judgment; (2) He is serving sentence which consists in the deprivation of liberty; (3) He evades service of his sentence by escaping during the term of his imprisonment.

If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation.

Qualifying circumstances as to penalty imposed if such evasion or escape takes place: (1) By means of unlawful entry (this should be “by scaling” - Reyes); (2) By breaking doors, windows, gates, walls, roofs or floors; (3) By using picklock, false keys, disguise, deceit, violence or intimidation; or (4) Through connivance with other convicts or employees of the penal institution.

If the prisoner removed or whose escape is made possible by the commission of the crime of delivering prisoner from jail is a detention prisoner, such prisoner is not criminally liable. A prisoner is

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Evasion of service of sentence has three forms: (1) By simply leaving or escaping from the penal establishment under Article 157; (2) Failure to return within 48 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed under Article 158; (3) Violating the condition of conditional pardon under Article 159.

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If the prisoner fails to return within said 48 hours, there will be an additional penalty of 1/5 of the time still remaining to be served under the original sentence. In no case shall that penalty exceed six months. Mutiny is one of the causes which may authorize a convict serving sentence in the penitentiary to leave the jail provided he has not taken part in the mutiny. ARTICLE 159 SENTENCE

In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It may be mitigating, but it will not absolve his criminal liability.

- OTHER CASES OF EVASION OF SERVICE OF

Elements: (1) Offender was a convict; (2) He was granted a conditional pardon by the Chief Executive; (3) He violated any of the conditions of such pardon.

Not applicable to sentence executed by deportation because the convict was not sentenced to imprisonment and thereafter broke jail.

Violation of conditional pardon is a distinct crime. In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence.

Not applicable to sentence of destierro since Article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their liberty.

Offender must be found guilty of subsequent offense before he can be prosecuted under Article 159. [Torres vs. Gonzales]

ARTICLE 158 - EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES

Elements: (1) Offender is a convict by final judgment, who is confined in a penal institution; (2) There is disorder, resulting from – (a) conflagration; (b) earthquake; (c) explosion; (d) similar catastrophe; or (e) mutiny in which he has not participated; (3) He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; (4) He fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity.

If the condition of the pardon is violated when the remaining unserved portion of the sentence has already lapsed, there will be no more criminal liability for the violation. However, the convict maybe required to serve the unserved portion of the sentence, that is, continue serving original penalty. Violation of Conditional Pardon vs. Evasion of Service of Sentence by Escaping Violation of Conditional Evasion of Service of Pardon Sentence Does not cause harm or injury to the right of another person nor does it disturb the public order; merely an infringement of the stipulated terms in conditional pardon

Leaving the penal establishment is not the basis of criminal liability. What is punished is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence.

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An attempt at least to evade the penalty inflicted by the courts upon criminals and thus defeat the purpose of the law of either reforming or punishing them for having disturbed the public order.

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CHAPTER VII - COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE

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If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat.

ARTICLE 160 - QUASI RECIDIVISM

Elements: (1) Offender was already convicted by final judgment of one offense; (2) He committed a new felony before beginning to serve such sentence or while serving the same.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He shall be punished by the maximum period of the penalty prescribed by law for the new felony. The first crime for which the offender is serving sentence need not be a felony. [People vs. Peralta]

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

PD 1866 AS AMENDED BY RA 8294: ILLEGAL POSSESSION OF FIREARMS

Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition.— The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition.— The possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition. Sec. 3.Unlawful manufacture, sale, acquisition, disposition or possession of explosives. — The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

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If the violation of this Sec. is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat.

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incendiary device, shall not be a violation of this Section. Provided, further, That the temporary, incidental, casual, harmless, or transient possession or control of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs

Provided, finally, That in addition to the instances provided in the two (2) immediately preceding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as “animus possidendi”, in accordance with the facts and circumstances of each case and the application of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended.

Sec. 3-A. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of a Part, Ingredient, Machinery, Tool or Instrument Used or Intended to be Used for the Manufacture, Construction, Assembly, Delivery or Detonation.— The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, used or intended to be used by that person for its manufacture, construction, assembly, delivery or detonation, where the explosive or incendiary device is capable or is intended to be made capable of producing destructive effect on contiguous objects or causing injury or death to any person.

Sec. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity.— The penalty of reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. Sec. 3-C. Relationship of Other Crimes with a Violation of this Decree and the Penalty Therefor.— When a violation of Section 3, 3-A or 3-B of this Decree is a necessary means for committing any of the crimes defined in the Revised Penal Code or special laws, or is in furtherance of, incident to, in connection with, by reason of, or on occasion of any of the crimes defined in the Revised Penal Code or special laws, the penalty of reclusion perpetua and a fine ranging from One hundred Thousand pesos (P100,000.00) to One million pesos (P1,000,000.00) shall be imposed.

Provided, That the mere possession of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, by any person whose business activity, or employment does not lawfully deal with the possession of such article shall be prima facie evidence that such article is intended to be used by that person in the unlawful/illegal manufacture, construction, assembly, delivery or detonation of an explosive or incendiary device.

Sec. 3-D. Former Conviction or Acquittal; Double Jeopardy.— Subject to the provisions of the Rules of Court on double jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the

Provided, however, That a temporary incidental, casual, harmless or transient possession or control of any part, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, without the knowledge of its existence or character as part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or

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violation of this Decree was committed, and vice versa.

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part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, shall suffer the penalty of reclusion perpetua.

Sec. 4. Responsibility and liability of Law Enforcement Agencies and Other Government Officials and Employees in Testifying as Prosecution Witnesses.— Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses, intentionally or negligently, to appear as a witness for the prosecution of the defense in any proceeding, involving violations of this Decree, without any valid reason, shall be punished with reclusion temporal and a fine of Five hundred Thousand pesos (P500,000.00) in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.

Planting of evidence shall mean the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching, directly or indirectly, through any overt or covert act, whatever quantity of any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating incriminating or imputing the commission of any violation of this Decree.

The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with prision correccional and a fine of not less than Ten Thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court.

Sec. 4-D. Types of Chemicals/Accessories Covered.— The chemicals and accessories mentioned in the preceding Section shall exclusively refer to chlorates, nitrates, nitric acid and such other chemicals and accessories that can be used for the manufacture of explosives and explosive ingredients. Sec. 5. Tampering of Firearm’s Serial Number.— The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm.

The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or reassigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or reassign, within twenty-four (24) hours from its approval: Provided, further, That his/her immediate superior shall be penalized with prision correccional and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or reassign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law.

Sec. 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives.— The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence.— The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor. RA 9372: HUMAN SECURITY ACT (SEE SPECIAL LAWS IN TITLE I)

Sec. 4-A. Criminal Liability for Planting of Evidence.— Any person who is found guilty of “planting” any explosive or incendiary device or any

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Title IV. Crimes against Public Interest

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Evidence (8) Article 183 - False Testimony in Other Cases and Perjury in Solemn Affirmation (9) Article 185 - Machinations in Public Auctions (10) Article 186 – Monopolies and Combinations in Restraint of Trade (11) Article 187 – Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys.

Acts of Counterfeiting (1) Article 162 - Using Forged Signature or Counterfeit Seal or Stamp (2) Article 161 - Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive (3) Article 164 - Mutilation of Coins (4) Article 163 - Making and Importing and Uttering False Coins (5) Article 165 - Selling of False or Mutilated Coin, Without Connivance (6) Article 167 - Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer (7) Article 166 - Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents

The crimes in this title are in the nature of fraud or falsity to the public. Deceit perpetrated upon the public is the act being punished. ACTS OF COUNTERFEITING ARTICLE 161 - COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE

Acts punished: Forging the (1) Great Seal of the Government of the Philippines; (2) Signature of the President; (3) Stamp of the President.

Acts of Forgery (1) Article 168 - Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit (2) Article 169 - How Forgery is Committed

When the signature of the president is forged, the crime committed is covered by this provision and not falsification of public document.

Acts of Falsification (1) Article 170 - Falsification of Legislative Documents (2) Article 171 - Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister (3) Article 172 - Falsification by Private Individual and Use of Falsified Documents (4) Article 173 - Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages (5) Article 175 - Using False Certificates (6) Article 174 - False Medical Certificates, False Certificates of Merits or Service, etc. (7) Article 176 - Manufacturing and Possession of Instruments or Implements for Falsification

Intent to use is necessary. Actual use, however, is not required, as long as the forger intended to use it. ARTICLE 162 - USING FORGED COUNTERFEIT SEAL OR STAMP

SIGNATURE

OR

Elements: (1) The great Seal of the Republic was counterfeited OR the Signature or stamp of the Chief Executive was forged by another person; (2) Offender Knew of the counterfeiting or forgery; (3) He Used the counterfeit seal or forged signature or stamp.

Other Falsities (1) Article 177 - Usurpation of Authority or Official Functions (2) Article 179 - Illegal Use of Uniforms and Insignia (3) Article 178 - Using Fictitious and Concealing True Name (4) Article 180 - False Testimony Against a Defendant (5) Article 181 - False Testimony Favorable to the Defendant (6) Article 182 - False Testimony in Civil Cases (7) Article 184 - Offering False Testimony in

Remember: Offender under this article should not be the forger. Otherwise, he will be penalized under Article 161. The participation of the offender is in effect that of an accessory. Although the general rule is that he should be punished by a penalty of two degrees lower, under Article 162 he is punished by a penalty only one degree lower.

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ARTICLE 163 FALSE COINS

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- MAKING AND IMPORTING AND UTTERING Requisites of Mutilation under the RPC: (1) Coin mutilated is of legal tender; (2) Offender gains from the precious metal dust abstracted from the coin; (3) It has to be a coin.

Elements: (1) There be False or counterfeited coins; (2) Offender either made, imported or uttered such coins; (3) In case of uttering such false or counterfeited coins, he Connived with the counterfeiters or importers.

“Mutilation” means to take off part of the metal either by filling it or substituting it for another metal of inferior quality.

To utter is to pass counterfeited coins. It includes delivery or the act of giving them away. A counterfeited coin is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utterer may not obtain the gain he intended [Decisions of the Supreme Court of Spain]

Since the coins before were made of silver and/or other precious metal, shaving the metal from the coins became a practice. Hence, the coin’s intrinsic value is diminished. This is the only article that requires that the mutilated coin be legal tender.

To import fake coins means to bring them into port. The importation is complete before entry at the Customs House [US vs. Lyman]

Foreign coins are covered in this article. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin.

Kinds of coins the counterfeiting of which is punished A. Silver coins of the Philippines or coins of the Central Bank of the Philippines; B. Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; C. Coin of the currency of a foreign country.

ARTICLE 165 - SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

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

The counterfeiting of foreign currency is punishable, regardless of whether or not it is still in official circulation. The reason behind this is not only the harm that it may cause to the public in case it goes into circulation again, but also the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation. [People vs. Kong Leon]

Elements: (1) Possession; (2) With Intent to utter; and (3) Knowledge. Mode 2: Actually uttering such false or mutilated coin, knowing the same to be false or mutilated.

ARTICLE 164 - MUTILATION OF COINS

Acts punished (1) Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another; (2) Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering.

Elements: (1) Actually uttering; and (2) Knowledge. Possession prohibited in this article is not only actual and physical possession, but also that of a constructive one, or the subjection of the thing to one’s control. The possessor should not be the counterfeiter, mutilator or importer of the coins.

The first acts of falsification or falsity include: (1) Counterfeiting (2) Forgery (3) Falsification

As long as the offender has knowledge that the coin is false or mutilated, there is no need for him to connive with the counterfeiter or mutilator.

In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins (2) Mutilation of coins

ARTICLE 166 - FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS

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Connivance is not required in uttering if the utterer is the forger.

Acts punished (1) Forging or falsification of treasury or bank notes or other documents payable to bearer; (2) Importation of such false or forged obligations or notes; (3) Uttering of such false or forged obligations or notes in connivance with the forgers or importers.

ACTS OF FORGERY ARTICLE 168 - ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT

Elements: (1) Any treasury or bank note or certificate or other obligation and security: (a) Payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is (b) Forged or falsified by another person; (2) Offender Knows that any of those instruments is forged or falsified; (3) He either – (a) Uses any of such forged or falsified instruments; or (b) Possesses with intent to use any of such forged or falsified instruments.

“Forging”: By giving any treasury or bank note, or any instrument payable to bearer, or to order the appearance of a true and genuine document. “Falsification”: By erasing, substituting, counterfeiting or altering by any means, the figures, letters, words, or signs contained therein. The instrument is payable to bearer: (1) When expressed to be so payable (2) When payable to a person named therein or bearer (3) When payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable (4) When the name of the payee does not purport to be the name of any person (5) When the only or last endorsement is an endorsement in blank.

The rule is that if a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. Possession of false treasury or bank notes alone is not a criminal offense.

Reason for this is that the forging tends to bring such documents into discredit and the offense produces a lack of confidence on the part of the holders of said documents to the prejudice of society and of the State.

Intent to use is sufficient to consummate the crime when the offender is in possession of false or falsified notes or obligations. [People vs. Sendaydiego, (1978)]

ARTICLE 167 - COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER

The accused must have knowledge of the forged character of the note.

Elements: (1) There is an Instrument payable to order or other document of credit not payable to bearer; (2) Offender either Forged, imported or uttered such instrument; (3) In case of uttering, he Connived with the forger or importer.

ARTICLE 169 - HOW FORGERY IS COMMITTED

(1) By Giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document; (2) By Erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.

An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. This covers instruments or other documents of credit issued by a foreign government or bank.

Forgery includes falsification and counterfeiting. For possession of false treasury or bank note to constitute a criminal offense, it must be with intent to use.

Forgery of currency is punished so as to maintain integrity of the currency and thus insure the credit standing of the government.

The essence of forgery is giving a document the appearance of a true and genuine document.

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ARTICLE 171 - FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER

Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery.

Elements: (1) Offender is a Public officer, employee, or notary public; (2) He Takes advantage of his official position; (3) He falsifies a document by committing any of the following acts: (a) Counterfeiting or imitating any handwriting, signature or rubric; (b) Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; (c) Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; (d) Making untruthful statements in a narration of facts; (e) Altering true dates; (f) Making any alteration or intercalation in a genuine document which changes its meaning; (g) Issuing in an authenticated form: (i) A document purporting to be a copy of an original document (ii) When no such original exists, or (iii) Including in such a copy a statement contrary to, or different from, that of the genuine original; (h) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

Forgery can be committed through the use of genuine paper bills that have been withdrawn from circulation, by giving them the appearance of some other true and genuine document. [People vs. Galano] ACTS OF FALSIFICATION ARTICLE 170 DOCUMENTS

-

FALSIFICATION

OF

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LEGISLATIVE

Elements: (1) There is a Bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council; (2) Offender Alters the same; (3) He has No proper authority therefor; (4) The alteration has Changed the meaning of the documents. The writing must be: (1) complete in itself; and (2) capable of extinguishing an obligation or creating rights; or (3) capable of becoming evidence of the facts stated therein. Five classes of falsification: (1) Falsification of legislative documents; (2) Falsification of a document by a public officer, employee or notary public; (3) Falsification of a public or official, or commercial documents by a private individual; (4) Falsification of a private document by any person; (5) Falsification of wireless, telegraph and telephone messages.

st

1 Element: Persons Liable under this Article Under this article, only a public officer, employee or notary public, or ecclesiastical minister can be the offender. The ecclesiastical minister is liable with respect to any record or document that its falsification may affect the civil status of persons. nd

Falsification vs Forgery Forgery

Falsification

As used in Article 169, forgery refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order

The commission of any of the 8 acts mentioned in Article 171 on legislative (only the act if making alteration) public or official, commercial or private documents or wireless or telegraph messages.

2 Element: Offender Take Advantage of his Official Position Offender takes advantage of his official position in falsifying a document when: (1) He has the duty to make or prepare, or intervene in the preparation of the document; or (2) He has the official custody of the document he falsifies. rd

3 Element: Offender Falsifies a Document A document is any written statement by which a right or status is established or an obligation is extinguished.

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The existence of a wrongful intent to injure a third person is immaterial in falsification of a public document. [Siquian vs. People]

PAR 1: Counterfeiting or imitating any handwriting, signature or rubric. 2 ways of committing falsification under this paragraph: (1) Counterfeiting, which is imitating any handwriting, signature or rubric (a) There should be an intent to imitate, or an attempt to imitate (b) Two signatures, the genuine and the forged, should bear some resemblance. (2) Feigning, which is simulating a signature, handwriting or rubric out of one which does not actually exist.

There can be falsification by omission. An assistant bookkeeper is guilty of falsification by intentionally not putting a record in his personal account of chits and destroyed them so he could avoid paying the same. [People vs. Dizon] PAR 5: Altering true dates (1) The date must be essential (2) The alteration of the date must affect the veracity of the documents or the effects thereof (such as dates of birth, marriage, or death).

PAR 2: Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. Two Requisites: (1) Offender caused it to appear in a document that a person/s participated in an act or proceeding. (2) Such person/s did not in fact participate. PAR 3: Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them Three Requisites: (1) Person/s participated in an act or proceeding (2) Such person/s made statements in that act or proceeding (3) Offender, in making a document, attributed to such person/s statements other than those they in fact made. PAR 4: Making untruthful statements in a narration of facts Four Requisites: (1) Offender makes in a document statements in a narration of facts (2) He has a legal obligation to disclose truth of facts (3) Facts narrated are absolutely false (4) Perversion of truth in the narration was made with the wrongful intent of injuring a third person. There must be narration of facts, not conclusion of law. There should be a legal obligation to disclose the truth. [Beradio vs. CA]

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PAR 6: Making any alteration or intercalation in a genuine document which changes its meaning Four Requisites: (1) There be an alteration (change) or intercalation (insertion) on a document. (2) It was made on a genuine document. (3) Alteration or intercalation has changed the meaning of the document. (4) Change made the document speak something false. PAR 1

PAR 2

PAR 3

PAR 4

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

PAR 5

PAR 6

PAR 7

PAR 8

May be a genuine (later falsified) or an entirely fabricated document

There must be a genuine document

There must be a genuine document

There must be a genuine document

Change or insertion must affect the integrity or effects of the document. Furthermore, the alteration should make the document speak something false. Otherwise, it would merely be a correction.

The person making the narration of facts must be aware of the falsity of facts narrated by him. The narration of facts must be absolutely false. If there is some colorable truth in such statements, crime of falsification is not deemed to have been committed.

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PAR 7: Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original Falsification in this paragraph cannot be committed by a private individual, or by a notary public, or by a public officer, who does not take advantage of his official position.

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Public and Private writings under the Rules of Court: The following are public documents: (1) Written official acts, or records, of the official acts of the sovereign authority, official bodies and tribunals, and public officers (2) Documents acknowledged before a notary public except last will and testaments (3) Public records kept in the Philippines, of private documents required by law to be entered therein.

This is because authentication of a document can only be made by the custodian or the one who prepared and retained a copy of the original. (1) Purporting to be a copy of the original when no such original exists. (2) Including a copy a statement contrary to, or different from, that of the genuine original.

All other writings are private. After an investigation, a group of public officers were caught and convicted of falsifying cash vouchers. On appeal the SC held that cash vouchers are NOT commercial documents because they are not documents used by merchants or businessmen to promote or facilitate credit transactions nor they are defined and regulated by the Code of Commerce or other commercial law.

A private person who cooperates with a public officer in the falsification of a public document is guilty of the crime and incurs the same liability and penalty. There are four kinds of documents: (1) Public document in the execution of which, a person in authority or notary public has taken part; (a) A document created, executed or issued (b) By a public official (c) In response to the exigencies of the public service, (d) Or in execution of w/c public official intervened. (2) Official document in the execution of which a public official takes part; (a) A document issued by a public official in the exercise of the functions of his office. It falls within the larger class called public documents. (b) A document required by a bureau to be filled by its officers for purposes of record and information is a public document. (3) Commercial document or any document recognized by the Code of Commerce or any commercial law; and (4) A deed or instrument executed by a private person without the intervention of a notary public or other persons legally authorized. Private document in the execution of which only private individuals take part.

Rather, they are private documents which have been defined as: (1) Deeds or instruments executed by a private person (2) Without the intervention of a public notary or of other person legally authorize, (3) By which some disposition or agreement is proved, evidenced or set forth.[People v. Batulanon (2007)] ARTICLE 172 - FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS

Mode 1: Falsification of public, official or commercial document by a private individual; Elements: (1) Offender is a Private individual OR Public officer or employee who did not take advantage of his official position; (2) He committed any act of Falsification (Art. 171); (3) The falsification was committed in a public, official, or commercial Document or letter of exchange. Mode 2: Falsification of private document by any person;

The element of damage is not necessary because it is the interest of the community which is intended to be guaranteed.

Elements: (1) Offender committed any of the acts of Falsification except Article 171(7), that is, (a) Issuing in an authenticated form a document purporting to be a copy of an original document when no such original

The character of the offender and his faithfulness to his duty is mainly taken into consideration.

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Falsification through imprudence implies lack of such intent, thus there is no crime of falsification of a private document through negligence or imprudence.

exists, or (b) Including in such a copy a statement contrary to, or different from, that of the genuine original; (2) Falsification was committed in any Private document; (3) Falsification causes Damage to a third party or at least the falsification was committed with intent to cause such damage.

The possessor of a falsified document is presumed to be the author of the falsification. [People vs. Manansala] The presumption also holds if the use was so closely connected in time with the falsification and the user had the capacity of falsifying the document. [People vs. Sendaydiego]

Mode 3: Use of falsified document. Elements in introducing in a judicial proceeding (1) Offender Knew that the document was falsified by another person; (2) The False document is in Articles 171 or 172 (1 or 2); (3) He Introduced said document in evidence in any judicial proceeding.

There is no crime of estafa through falsification of a private document. Both crimes, separately, require the element of damage, which each of the two should have its own. The fraudulent gain obtained through deceit should not be the very same damage caused by the falsification of the private document.

Elements in use in any other transaction – (1) Offender Knew that a document was falsified by another person; (2) The False document is embraced in Articles 171 or 172 (1 or 2); (3) He Used such document; (4) The use caused Damage to another or at least used with intent to cause damage.

In this case, the petitioners are charged under Article 171, paragraphs 2 and 7 of the RPC. Petitioners Regidor and Zapatos, as Mayor, and Member and Temporary Presiding Officer of the Sangguniang Panglungsod, respectively, made it appear that private complainants, among others, participated in the Sangguniang Panglungsod sessions when they did not in fact so participate, and issued, in authenticated forms, the assailed resolutions purporting to be copies of original documents when no such originals exist.

In the falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to cause damage. This is because the principal thing punished is the violation of public faith and destruction of the truth as therein solemnly proclaimed.

SC held that all the elements of the offense punishable under Article 171, paragraphs 2 and 7 of the RPC are present in this case.

The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document. [Siquian vs People]

Furthermore, it is a fundamental principle in the law on public officers that administrative liability is separate from and independent of criminal liability. A simple act or omission can give rise to criminal, civil or administrative liability, each independently of the others. This is known as the “threefold liability rule.”

NOTE: This statement applies as well to commercial documents, because as to this kind of document, a credit is sought to be protected. [Reyes] Since damage is not an element of falsification of a public document, it could be complexed with estafa, theft or malversation as a necessary means to commit the latter crimes.

Thus, absolution from a criminal charge is not a bar to an administrative prosecution, and vice-versa.

There is no crime of falsification of private document through negligence or imprudence.

In this criminal prosecution, the dismissal of the administrative cases against the petitioners will not necessarily result in the dismissal of the criminal complaints filed against them.[Regidor v. People of the Phils & Sandiganbayan (2009)]

If the document is intended by law to be part of the public or official record, the falsification, although it was private at the time of falsification, it is regarded as falsification of a public or official document.

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ARTICLE 173 - FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES

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ARTICLE 174 - FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERITS OR SERVICE, ETC.

Persons liable (1) Physician or surgeon who, in connection with the practice of his profession, issues a false certificate (it must refer to the illness or injury of a person);

Mode 1: Uttering fictitious wireless, telegraph or telephone message; Elements: (1) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (2) He utters fictitious wireless, cable, telegraph or telephone message.

Note: The crime here is false medical certificate by a physician. (2) Public officer who issues a false certificate of merit of service, good conduct or similar circumstances;

Mode 2: Falsifying wireless, telegraph or telephone message;

Note: The crime here is false certificate of merit or service by a public officer.

Elements: (1) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (2) He falsifies wireless, cable, telegraph or telephone message.

(3) Private person who falsifies a certificate falling within the classes mentioned in the two preceding subdivisions. Note: The crime here is false medical certificate by a private individual or false certificate of merit or service by a private individual. ARTICLE 175 - USING FALSE CERTIFICATES

Mode 3: Using such falsified message.

Elements: (1) The following Issues a false certificate: (a) Physician or surgeon, in connection with the practice of his profession, issues a false Medical certificate; (b) Public officer issues a false certificate of Merit of service, good conduct or similar circumstances; (c) Private Person falsifies a certificate falling within the 2 preceding subdivisions. (2) Offender Knows that the certificate was false; (3) He Uses the same.

Elements: (1) Offender knew that wireless, cable, telegraph, or telephone message (a) Was falsified by an officer or employee of the government or an officer or employee of a private corporation, (b) Engaged in the service of sending or receiving wireless, cable or telephone message; (2) He used such falsified dispatch; (3) The use resulted in the prejudice of a third party or at least there was intent to cause such prejudice.

When any of the false certificates mentioned in Article 174 is used in the judicial proceeding, Article 172 does not apply, because the use of false document in judicial proceeding under Article 172 is limited to those false documents embraced in Articles 171 and 172.

The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable, telegraph or telephone message. A private individual cannot be a principal by direct participation in falsification of telegraphic dispatches under Article 173, unless he is an employee of a corporation engaged in the business of sending or receiving wireless, telegraph or telephone messages. But a private individual can be held criminally liable as principal by inducement.

ARTICLE 176 - MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION

Acts punished: (1) Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification; (2) Possession with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person. PAGE 141

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(3) Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage [to public interest – Reyes].

As in Article 165, the possession contemplated here is constructive possession. The implements confiscated need not form a complete set.

Mode 2: Concealing true name OTHER FALSITIES ARTICLE 177 FUNCTIONS

Elements: (1) Offender conceals his true name and other personal circumstances; (2) Purpose is only to conceal his identity.

- USURPATION OF AUTHORITY OR OFFICIAL

Mode 1: Usurpation of authority. (no connection with the office represented)

Use of Fictitious Name

The mere act of knowingly and falsely representing oneself to be an officer is sufficient. It is not necessary that he perform an act pertaining to a public officer.

Element of Publicity

Publicity not necessary

Purpose is to conceal a Merely to conceal identity. crime, evade execution of judgment, cause damage)

Elements: (1) Offender knowingly and falsely Represents himself; (2) As an Officer, agent or representative of any department or agency of the Philippine government or of any foreign government.

If the purpose is for causing damage, it must be damage to public interest. If it is damage to private interest, the crime will be estafa under Art 315 2(a).

Mode 2: Usurpation of official functions. (excess of authority)

ARTICLE 179 - ILLEGAL USE OF UNIFORMS AND INSIGNIA

Elements: (1) Offender makes Use of insignia, uniforms or dress; (2) The insignia, uniforms or dress pertains to an Office not held by such person or a class of persons of which he is not a member; (3) Said insignia, uniform or dress is Used publicly and improperly.

In usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person in authority or public officer, in addition to other requirements. Elements (1) Offender Performs any act; (2) Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; (3) Under Pretense of official position; (4) Without being lawfully entitled to do so.

Exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient. RA 75 also punishes using the use of uniform, decoration or regalia of a foreign state by people not entitled to do so.

The offender should have: (1) represented himself to be an officer, agent or representative of any agency of the government; or (2) performed an act pertaining to a person in authority or public officer.

RA 493 punishes wearing an insignia, badge, or emblem of rank of the members of the AFP or constabulary. ARTICLE 180 - FALSE TESTIMONY AGAINST A DEFENDANT

Article 177 may be violated by a public officer. ARTICLE NAME

Concealing True Name

Elements: (1) There is a Criminal proceeding; (2) Offender Testifies falsely under oath against the defendant therein; (3) Offender who gives false testimony Knows that it is false. (4) Defendant against whom the false testimony is given is either acquitted or convicted in a Final

178 - USING FICTITIOUS AND CONCEALING TRUE

Mode 1: Using fictitious name Elements: (1) Offender uses a name other than his real name; (2) He uses the fictitious name publicly;

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judgment.

(2) Testimony Relates to the issues presented in said case; (3) Testimony is False; (4) Offender Knows that testimony is false; (5) Testimony is Malicious (6) And given with an intent to affect the issues presented in said case.

The witness who gave the false testimony is liable even if his testimony was not considered by the court. “False Testimony”: Committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it.

Falsity of testimony must first be established. Art. 182 does not apply in special proceedings. These are covered by 183 under “other cases”. Pending the determination of the falsity of the subject testimonies in the civil case, the criminal action for false testimony must perforce be suspended.

False testimony is punished because of its tendency to prejudice defendant. Three forms of false testimony: (1) False testimony in criminal cases under Article 180 and 181; (2) False testimony in civil case under Article 182; (3) False testimony in other cases under Article 183.

ARTICLE 183 - FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION

Acts Punished (1) By falsely Testifying under oath; (2) By Making a false affidavit.

Articles 180 – 184 punish the acts of making false testimonies because such acts seriously expose society to miscarriage of justice. ARTICLE 181 DEFENDANT

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Note: The false testimony should not be in a judicial proceeding. [Diaz vs. People]

- FALSE TESTIMONY FAVORABLE TO THE

The testimony need not in fact be beneficial to the defendant. It is not necessary that the testimony should directly influence the decision of acquittal, it being sufficient that it was given with the intent to favor the accused.

Elements of perjury: (1) Offender Makes a statement under oath or executes an affidavit upon a material matter; (2) The statement or affidavit is made Before a competent officer, authorized to receive and administer oaths; (3) Offender makes a Willful and deliberate assertion of a falsehood in the statement or affidavit; (4) The sworn statement or affidavit containing the falsity is Required by law, that is, it is made for a legal purpose.

Conviction or acquittal of defendant in the principal case is not necessary.

The statement should be outside the coverage of art 180-181.

Rectification made spontaneously after realizing the mistake is not false testimony.

“Oath”: Any form of attestation by which a person signifies that he is bound by conscience to perform an act faithfully and truthfully.

Elements: (1) A person Gives false testimony; (2) In Favor of the defendant; (3) In a Criminal case.

Penalty for false testimony against the accused is based on the sentence imposed or if accused is acquitted; that for testimony favorable to the accused is based on the imposable penalty. The rationale for the difference is the measure of the wrong occasioned by the injustice in each case, i.e. the undeserved sentence and the imposable penalty avoided, respectively.

“Affidavit”: Sworn statement in writing; declaration in writing, made upon oath before an authorized magistrate or officer. There could be no perjury through negligence or imprudence. This is because of the requirement that the assertion of a falsehood be made willfully and deliberately. Hence, good faith or lack of malice is a defense in perjury.

ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES

Elements: (1) Testimony Given in a civil case;

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It is not necessary that there be a law requiring the statement to be made under oath, as long as it is made for a legal purpose.

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Elements: (1) There is a Public auction; (2) Offender Attempts to cause the bidders to stay away from that public auction; (3) It is Done by threats, gifts, promises or any other artifice; (4) Offender had the Intent to cause the reduction of the price of the thing auctioned.

Perjury is a crime other than false testimony in criminal cases or false testimony in civil cases, which are perversions of truth in judicial proceedings. Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings. [US vs. Estrada]

The crime is consummated by: (1) Mere solicitation of gift or promise as consideration for not bidding, or (2) By mere attempt to cause prospective bidders to stay away from an auction.

Good faith or lack of malice is a defense in perjury. Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. [US vs. Ballena] Subornation of perjury is not expressly penalized in the RPC; but the direct induction of a person by another to commit perjury may be punished under Article 183 in relation to Article 17.

ARTICLE 186 – MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

Mode 1: Combination to prevent free competition in the market Elements: (1) Entering into any contract or agreement; OR taking part in any conspiracy or combination in the form of a trust or otherwise; (2) In restraint of trade or commerce or to prevent by artificial means free competition in the market

ARTICLE 184 - OFFERING FALSE TESTIMONY IN EVIDENCE

Elements: (1) Offender Offers in evidence a false witness or testimony; (2) He Knows that the witness or the testimony was false; (3) The offer is made in any Judicial OR Official proceeding.

Mode 2: Monopoly to restrain free competition in the market Elements: (1) Monopolizing any merchandise or object of trade or commerce; OR (2) Combining with any other person or persons to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market

Offer of evidence begins at the moment a witness is called to the stand and interrogated by counsel. The witness must testify. ARTICLE 185 - MACHINATIONS IN PUBLIC AUCTIONS

Mode 1: Soliciting any gift or promise as a consideration for refraining from taking part in any public auction; Elements: (1) There is a Public auction; (2) Offender Solicits any gift or a promise from any of the bidders; (3) Such gift or promise is the Consideration for his refraining from taking part in that public auction; (4) Offender has the Intent to cause the reduction of the price of the thing auctioned.

Mode 3: Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise Elements: (1) Person liable: (1) manufacturer, (2) producer, (3) processor, or (4) importer of any merchandise or object of commerce (2) Crime committed by: (1) combining, (2) conspiring, or (3) agreeing with any person (3) Purpose: (1) to make transactions prejudicial to lawful commerce, or (2) to increase the market price of any merchandise or object

Mode 2: Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice.

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"5. any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution; "6. the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or "7. any transaction that is similar or analogous to any of the foregoing."

of commerce manufactured, produced, processed, assembled, or imported into the Philippines. Theory of the law: Competition, not combination, should be the law of trade Mere conspiracy or combination is punished. If the offense affects any food substance or other article of prime necessity, it is sufficient that initial steps are taken.

"SEC. 4.Money Laundering Offense. – Money laundering is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: (a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council(AMLC), fails to do so."

When offense is committed by a corporation or association, the president and directors or managers are liable. ARTICLE 187 – IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS

Elements: (1) Offender imports, sells or disposes of any of those articles or merchandise (i.e. gold, silver, other precious metals or their alloys) (2) The stamps, brands, or marks of those articles of merchandise fail to indicate the actual fineness or quality of said metals or alloys (3) Offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of the metals or alloys. Selling the misbranded articles is not necessary. Article 187 does not apply to manufacturer of misbranded articles – he would be liable for estafa under Art. 315(2)(b).

Title V. Crimes Relative to Opium and Other Prohibited Drugs

RA 9194 ANTI-MONEY LAUNDERING ACT

'Covered transaction' is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day.

A. B. C. D.

'Suspicious transaction' are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: "1. there is no underlying legal or trade obligation, purpose or economic justification; "2. the client is not properly identified; "3. the amount involved is not commensurate with the business or financial capacity of the client; "4. taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act;

Acts Punished Penalties for Unlawful Acts: Definition of Important Terms: Other Important Points.

NOTE: Art 190-194 were repealed by RA 6425, known as the “Dangerous Drug Act of 1972.” RA No. 9165, known as the “Comprehensive Dangerous Drug Act of 2002” in turn repealed RA No. 6425 ACTS PUNISHED

(1) Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemical (Sec. 4) (2) Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

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(3) (4) (5) (6) (7)

(8) (9) (10) (11)

(12) (13) (14)

(15) (16)

CRIMINAL LAW: BOOK TWO

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 5) Maintenance of a Den, Dive or Resort. (Sec. 6) Employees and Visitors of a Den, Dive or Resort(Sec. 7) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 8) Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. (Sec. 9) Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. (Sec. 10) Possession of Dangerous Drugs (Sec. 11) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs (Sec. 12) Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings (Sec. 13) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings(Sec. 14) Use of Dangerous Drugs (Sec. 15) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. (Sec. 16) Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 17) Unnecessary Prescription of Dangerous Drugs(Sec. 18) Unlawful Prescription of Dangerous Drugs (Sec. 19)

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(3) The maximum penalty provided for under sections 4, 5, 6, 8 and 16 shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in those sections. (4) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on pleabargaining. Section 23, Article II, RA 9165 Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. [Section 24, Article II, RA 9165] Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. [Section 25, Article II, RA 9165] The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees. [Section 28, Article II, RA 9165] Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. [Section 29, Article II, RA 9165] In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. [Section 30, Article II, RA 9165]

PENALTIES FOR UNLAWFUL ACTS: (1) The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) - Those acts which include or involve any dangerous drugs (Sections 4, 5, 6, 8, 11, 16 and 19) (2) The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) (a) Those acts which involve any controlled precursor and essential chemical(Sections 4, 5, 6, 8, 9 and 10) (b) Anyone who acts as a "protector/coddler" of any violator of the provisions under sections 4, 5, 6, 8 and 16 (c) Sections 7, 10, 16, 17.

In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. [Section 31, Article II, RA 9165] Accessory Penalties: A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to: (1) the rights of parental authority or guardianship, either as to the person or property of any ward

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(2) the rights to dispose of such property by any act or any conveyance inter vivos, (3) and political rights such as but not limited to, (4) the right to vote and be voted for. (5) Such rights shall also be suspended during the pendency of an appeal from such conviction. [Section 35, Article II, RA 9165]

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the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency (Section 54, Article VIII, RA 9165).

32 possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. [People v. Lacerna]

Is there also compulsory confinement? Yes. Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose.

Art. 36 (f), concerning mandatory drug testing for all persons charged with crimes is declared unconstitutional because it violates the right against self-incrimination.

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found. (Section 61, Article VIII, RA 9165).

Art 36 (g), concerning mandatory drug testing for candidates for public office is also unconstitutional.[SJS v. Dangerous Drugs Board] DEFINITION OF IMPORTANT TERMS

How long will the drug dependent be confined for treatment and rehabilitation? Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community (Section 54, Article VIII, RA 9165).

Dangerous drugs: include those listed (1) in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and (2) in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act. [Section 3 (j), RA 9165] Chemical Diversion: The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures, or in concentrated form, to any person or entity engaged in the manufactured of any dangerous drugs, and shall include packaging, labelling, or concealment of such transaction.

How will a drug dependent who is under the voluntary submission program and is finally discharged from confinement in the Center be exempt from criminal liability? (1) He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center (2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws (3) He/she has no record of escape from a Center (4) He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability (Section 55, Article VIII, RA 916)

Controlled Precursors and Essential Chemicals: Include those listed in Tables I and II of the 188 UN Convention Against Illicit traffic in Narcotics Drugs and Psychotropic Substances. OTHER IMPORTANT POINTS

May a drug dependent who is found guilty of the use of dangerous drugs voluntarily submit himself for treatment and rehabilitation? Yes. The drug dependent may, by himself/herself or through his/her parent, spouse, guardian or relative within

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What are the functions of the Dangerous Drugs Board? (1) Be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. (2) Develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. (3) Be under the Office of the President. (Section 77, Article IX, RA 9165)

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Customs: established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. Grave Scandal: consists of acts which are offensive to decency and good customs which, having committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. The acts must be performed in a public place or within the public knowledge or view. If it is committed in a private place, the crime of grave scandal is not committed.

What is the PDEA? The PDEA is the Philippine Drug Enforcement Agency. It serves as the implementing arm of the Dangerous Drugs Board. It shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. (Section 82, Article IX, RA 916)

In conducts involving lasciviousness, it is grave scandal only where there is mutual consent. (Boado, Comprehensive Reviewer in Criminal Law) Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal, Provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last resort.

Title VI. Crimes against Public Morals

ARTICLE 201 - IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS

CHAPTER I: Gambling and Betting (1) Gambling (Art 195) (2) Importation, sale and possession of lottery tickets or advertisements (Art 196) (3) Betting in sports contests (Art 197) (4) Illegal betting on horse races (Art 198) (5) Illegal cockfighting (Art 199)

Acts punished (as amended by PD No. 960, 969) (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) The authors of obscene literature, published with their knowledge in any form, (3) The editors publishing such literature; (4) The owners/operators of the establishment selling the same; (5) Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or immoral plays, scenes, acts, or shows,

CHAPTER II: Offenses against Decency and Good Customs (1) Grave Scandal (Art 200) (2) Immoral doctrines, obscene publications and exhibitions (Art 201) (3) Vagrancy and prostitution (Art 202)

it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which: (a) glorify criminals or condone crimes; (b) serve no other purpose but to satisfy the market for violence, lust or pornography; (c) offend any race, or religion; (d) tend to abet traffic in and use of prohibited drugs; and (e) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts (6) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

CRIMES AGAINST PUBLIC MORALS ARTICLE 200 - GRAVE SCANDAL

Elements: (1) Offender performs an act or acts; (2) Such act or acts be highly scandalous as offending against decency or good customs; (3) The highly scandalous conduct is not expressly falling within any other article of this Code; and (4) The act or acts complained of be committed in a public place or within the public knowledge or view. (Reyes). Decency: means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc.

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conduct or character, sometimes, specifically, to sexual conduct.

place belonging to another without any lawful or justifiable purpose; and (5) Prostitutes.

Offense in any of the forms mentioned in the article is committed only when there is publicity

Prostitutes: women who, for money or profit habitually indulge in sexual intercourse or lascivious conduct

The test of obscenity: (1) The test is objective. (2) It is more on the effect upon the viewer and not alone on the conduct of the performer. (3) If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. (4) As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general.

Dissolute: lax, unrestrained, immoral Ruffian: brutal, violent, lawless persons Pimp: One who provides gratification for the lust of others Even millionaires or one who has more than enough for his livelihood can commit vagrancy by habitually associating with prostitutes, pimps, ruffians, or by habitually lodging in houses of ill-repute. The purpose of the law is not simply to punish a person because he has no means of livelihood; it is to prevent further criminality.

Jurisprudence: Postcards of Philippine inhabitants in native attire were not obscene because the aggregate judgment of the community, and the moral sense of the people were not shocked by those pictures. They were not offensive to chastity but merely depicted persons as they actually lived. [People v Kottinger (1923)]

Any person found wandering in an estate belonging to another whether public or private without any lawful purpose also commits vagrancy, unless his acts constitutes some other crime in the Revised Penal Code.

The reaction of the public during the performance of a dance by one who had nothing to cover herself with, except nylon patches over her breasts and too abbreviated pair of nylon panties to interrupt her stark nakedness should be made the gauge in the determination of whether the dance or exhibition was indecent or immoral. [People v Aparici (1955)]

The term prostitution is applicable to a woman who for profit or money habitually engages in sexual or lascivious conduct. A man, if he engages in the same conduct – sex for money – is not a prostitute, but a vagrant.

An actual exhibition of the sexual act can have no redeeming feature—no room for art. Therefore, it is a clear and unmitigated obscenity. [People v Padan (1957)] ARTICLE

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In law, the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense.

202 - VAGRANCY AND PROSTITUTION (SEE RA

10158)

Habituality is the controlling factor; it has to be more than one time.

Persons Liable: (1) Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; (2) Any person found loitering about public or semipublic buildings or places or trampling or wandering about the country or the streets without visible means of support; (3) Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; (4) Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited

There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery. See Special Law: PD 1563 (Mendicancy Law of 1978) RA 10158: AN ACT DECRIMINALIZING AMENDING ARTICLE 202 OF THE RPC

VAGRANCY,

SECTION 1. Article 202 of the Revised Penal Code is hereby, amended to read as follows: “Article 202.Prostitutes; Penalty. – For the purposes of this article, women who, for money or profit, PAGE 149

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habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. “Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.”

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c) Masiao. - An illegal numbers game where the winning combination is derived from the results of the last game of Jai Alai or the Special Llave portion or any result thereof based on any fictitious Jai Alai game consisting of ten (10) players pitted against one another, and its variants. d) Last Two. - An illegal numbers game where the winning combination is derived from the last two (2) numbers of the first prize of the winning Sweepstakes ticket which comes out during the weekly draw of the Philippine Charity Sweepstakes Office (PCSO), and its variants.

SEC. 2.Effect on Pending Cases. – All pending cases under the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be dismissed upon effectivity of this Act.

e) Bettor ("Mananaya", "Tayador" or variants thereof). - Any person who places bets for himself/herself or in behalf of another person, or any person, other than the personnel or staff of any illegal numbers game operation.

SEC. 3.Immediate Release of Convicted Persons. – All persons serving sentence for violation of the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained for any other offense or felony.

f) Personnel or Staff of Illegal Numbers Game Operation. - Any person, who acts in the interest of the maintainer, manager or operator, such as, but not limited to, an accountant, cashier, checker, guard, runner, table manager, usher, watcher, or any other personnel performing such similar functions in a building structure, vessel, vehicle, or any other place where an illegal numbers game is operated or conducted.

Under the Mendicancy Law of 1978 (PD 1563), (1) one who has no visible and legal means of support, or lawful employment (2) and who is physically able to work but neglects to apply himself to some lawful calling (3) and instead uses begging as a means of living, (4) is a mendicant.

g) Collector or Agent ("Cabo", "Cobrador", "Coriador" or variants thereof). - Any person who collects, solicits or produces bets in behalf of his/her principal for any illegal numbers game who is usually in possession of gambling paraphernalia.

Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges shall be punished by a fine.

h) Coordinator, Controller or Supervisor ("Encargado" or variants thereof). - Any person who exercises control and supervision over the collector or agent.

P.D. 1602 – ANTI-GAMBLING ACT AS AMENDED BY R.A. 9287 – ILLEGAL NUMBERS GAME – WHICH REPEALED ARTICLES 195-199 OF THE RPC

Sec. 2.Definition of Terms. - As used in this Act, the following terms shall mean:

i) Maintainer, Manager or Operator. - Any person who maintains, manages or operates any illegal number game in a specific area from whom the coordinator, controller or supervisor, and collector or agent take orders.

a) Illegal Numbers Game. - Any form illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots.

j) Financiers or Capitalist. - Any person who finances the operations of any illegal numbers game.

b) Jueteng. - An illegal numbers game that involves the combination of thirty-seven (37) numbers against thirty-seven (37) numbers from number one (1) to thirty seven (37) or the combination of thirty-eight (38) numbers in some areas, serving as a form of local lottery where bets are placed and accepted per combination, and its variants.

k) Protector or Coddler. - Any person who lends or provides protection, or receives benefits in any manner in the operation of any illegal numbers game.

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Punishable Acts Sec. 3. Punishable Acts. - Any person who participates in any illegal numbers game shall suffer the following penalties:

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In addition to the penalty provided in the immediately preceding section, the accessory penalty of perpetual disqualification from public office shall be imposed upon any local government official who, having knowledge of the existence of the operation of any illegal numbers game in his/her jurisdiction, fails to abate or to take action, or tolerates the same in connection therewith.

a) The penalty of imprisonment from thirty (30) days to ninety (90) days, if such person acts as a bettor; b) The penalty of imprisonment from six (6) years and one (1) day to eight (8) years, if such person acts as a personnel or staff of an illegal numbers game operation;

b) In the case of failure to apprehend perpetrators of any illegal numbers game, any law enforcer shall suffer an administrative penalty of suspension or dismissal, as the case may be, to be imposed by the appropriate authority.

The same penalty shall likewise be imposed to any person who allows his vehicle, house, building or land to be used in the operation of the illegal numbers games.

Sec. 6.Liability of Parents/Guardians. - The penalty of imprisonment from six (6) months and one (1) day to one (1) year or fine ranging from One hundred thousand pesos (P100,000.00) to Four hundred thousand pesos (P400,000.00) shall be imposed upon any parent, guardian or person exercising moral authority or ascendancy over a minor, ward or incapacitated person, and not otherwise falling under any of the foregoing subsections, who induces or causes such minor, ward or incapacitated person to commit any of the offenses punishable in this Act. Upon conviction, the parent, guardian or person exercising moral authority or ascendancy over the minor, ward or incapacitated person shall be deprived of his/her authority over such person in addition to the penalty imposed.

c) The penalty of imprisonment from eight (8) years and one (1) day to ten (10) years, if such person acts as a collector or agent; d) The penalty of imprisonment from ten (10) years and one (1) day to twelve (12) years, if such person acts as a coordinator, controller or supervisor; e) The penalty of imprisonment from twelve (12) years and one (1) day to ten (10) fourteen (14) years, if such person acts as a maintainer, manager or operator; and f) The penalty of imprisonment from fourteen (14) years and one (1) day to sixteen (16) years, if such person acts as a financier or capitalist;

Sec. 7.Recidivism. - The penalty next higher in degree as provided for under Section 3 hereof shall be imposed upon a recidivist who commits any of the offenses punishable in this Act.

g) The penalty of imprisonment from sixteen (16) years and one (1) day to twenty (20) years, if such person acts as protector or coddler.

RA 9208 (ANTI-TRAFFICKING IN PERSONS ACT) Section 4.Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:

Sec. 4. Possession of Gambling Paraphernalia or Materials. - The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act.

(a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

Sec. 5. Liability of Government Employees and/or Public Officials. - a) If the collector, agent, coordinator, controller, supervisor, maintainer, manager, operator, financier or capitalist of any illegal numbers game is a government employee and/or public official, whether elected or appointed shall suffer the penalty of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three million pesos (P3,000,000.00) to Five million pesos (P5,000,000.00) and perpetual absolute disqualification from public office.

(b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in

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prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;

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pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; (e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons;

(d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation;

(f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and

(e) To maintain or hire a person to engage in prostitution or pornography; (f) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

(g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.

(g) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and

Section 6.Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (a) When the trafficked person is a child;

(h) To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.

(b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

Section 5.Acts that Promote Trafficking in Persons. The following acts which promote or facilitate trafficking in persons, shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons;

(c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group;

(b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and predeparture requirements for the purpose of promoting trafficking in persons;

(d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee;

(c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons;

(e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and

(d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide

(g) When by reason or on occasion of the act of trafficking in persons, the offended party dies,

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becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).

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(e) If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission;

Section 7.Confidentiality. - At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public.

(f) The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name; (g) If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country; (h) Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/her retirement and other benefits shall likewise be forfeited; and

In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons. Section 10.Penalties and Sanctions. - The following penalties and sanctions are hereby established for the offenses enumerated in this Act: (a) Any person found guilty of committing any of the acts enumerated in Section 4 shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00); (b) Any person found guilty of committing any of the acts enumerated in Section 5 shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); (c) Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00);

(i) Conviction by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption. Section 11.Use of Trafficked Persons. - Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows: (a) First offense - six (6) months of community service as may be determined by the court and a fine of Fifty thousand pesos (P50,000.00); and

(d) Any person who violates Section 7 hereof shall suffer the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

(b) Second and subsequent offenses - imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000.00). Section 17.Legal Protection to Trafficked Persons. Trafficked persons shall be recognized as victims of

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the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant.

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(3) Article 219 - Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country (4) Article 220 - Illegal Use of Public Funds or Property (5) Article 221 - Failure to Make Delivery of Public Funds or Property (6) Article 222 - Officers Included in the Preceding Provisions

Note Sec. 17: Persons trafficked (including prostitutes) are exempt from criminal liability.

Chapter 5: Infidelity of Public Officers (1) Article 223 - Conniving With or Consenting to Evasion (2) Article 224 - Evasion through Negligence (3) Article 225 - Escape of Prisoner under the Custody of a Person Not a Public Officer (4) Article 226 - Removal, Concealment, or Destruction of Documents (5) Article 227 - Officer Breaking Seal (6) Article 228 - Opening of Closed Documents (7) Article 229 - Revelation of Secrets by an Officer (8) Article 230 - Public Officers Revealing Secrets of Private Individuals

Note also: Under RA 9208, persons who hire trafficked persons are criminally liable. Not so in Art 202 RPC.

Title VII. Crimes Committed by Public Officers Chapter 1: Preliminary Provisions (1) Article 203 - Who Are Public Officers

Chapter 6: Other Offenses and Irregularities by Public Officers (1) Article 231 - Open Disobedience (2) Article 232 - Disobedience to the Order of Superior Officer When Said Order Was Suspended by Inferior Officer (3) Article 233 - Refusal of Assistance (4) Article 234 - Refusal to Discharge Elective Office (5) Article 235 - Maltreatment of Prisoners (6) Article 236 - Anticipation of Duties of a Public Officer (7) Article 237 - Prolonging Performance of Duties and Powers (8) Article 238 - Abandonment of Office or Position (9) Article 239 - Usurpation of Legislative Powers (10) Article 240 - Usurpation of Executive Functions (11) Article 241 - Usurpation of Judicial Functions (12) Article 242 - Disobeying Request for Disqualification (13) Article 243 - Orders or Request by Executive Officer to Any Judicial Authority (14) Article 244 - Unlawful Appointments (15) Article 245 - Abuses against Chastity.

Chapter 2: Malfeasance and Misfeasance in Office (1) Article 204 - Knowingly Rendering Unjust Judgment (2) Article 205 - Judgment Rendered Through Negligence (3) Article 206 - Unjust Interlocutory Order (4) Article 207 - Malicious Delay in the Administration of Justice (5) Article 208 - Prosecution of Offenses; Negligence and Tolerance (6) Article 209 - Betrayal of Trust by an Attorney or a Solicitor - Revelation of Secrets (7) Article 210 - Direct Bribery (8) Article 211 - Indirect Bribery (9) Article 211-A - Qualified Bribery (10) Article 212 - Corruption of Public Officials (11) Article 214 - Other Frauds Chapter 3: Frauds and Illegal Exactions and Transactions (1) Article 213 - Fraud against the Public Treasury and Similar Offenses (2) Article 215 - Prohibited Transactions (3) Article 216 - Possession of Prohibited Interest by a Public Officer

Remember: This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof.

Chapter 4: Malversation of Public Funds and Properties (1) Article 217 - Malversation of Public Funds or Property - Presumption of Malversation (2) Article 218 - Failure of Accountable Officer to Render Accounts

Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an

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accomplice, or accessory to the crime. The public officer has to be the principal.

him for decision; (3) Judgment is unjust; (4) The judge knows that his judgment is unjust.

CHAPTER I PRELIMINARY PROVISIONS

Defense: Mere error in good faith. An unjust judgment is one which is contrary to law or is not supported by the evidence, or both.

ARTICLE 203 - WHO ARE PUBLIC OFFICERS

Requisites: (1) Taking part in the performance of public functions in the government; (2) Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, or any rank or class; (3) His authority to take part in the performance of public functions or to perform public duties must be – (a) By direct provision of the law; (b) By popular election; or (c) By appointment by competent authority.

There must be positive evidence imputing an unjust judgment; presumption will not suffice. The offense refers only to a judgment of an individual judge in his court, and not to the judgment rendered in a collegial court by the members thereof [In Re: Wenceslao Laureta (1987)] Before a criminal action against a judge for violation of Articles 204 and 205 can be entertained, there must be a trial or authoritative judicial declaration that his decision or order is really unjust which may result from either an action of certiorari or prohibition in a higher court. [De Vera v. Pelayo (2000)]

The term “public officers” embraces every public servant from the highest to lowest. Officers and employees of government owned and controlled corporations included but not those of a sequestered corporation.

ARTICLE 205 NEGLIGENCE

The better rule is that GOCCs created by law are covered while GOCCs registered with the SEC (including sequestered companies) are not. [Macalino v. Sandiganbayan]

A manifestly unjust judgment is one which is so manifestly contrary to law that even a person having basic knowledge of the law cannot doubt the injustice. Abuse of discretion or mere error of judgment, not punishable.

CHAPTER II: MALFEASANCE AND MISFEASANCE IN OFFICE

Nonfeasance Art 208)

ARTICLE 204 JUDGMENT

(see

- JUDGMENT RENDERED THROUGH

Elements: (1) Offender is a judge; (2) He renders a judgment in a case submitted to him for decision; (3) The judgment is manifestly unjust; (4) It is due to his inexcusable negligence or ignorance.

The more recent case of People v. Sandiganbayan held that, based on RA 8249, presidents, directors, trustees, and managers of all GOCCs, regardless of type, are subject to the jurisdiction of the Sandiganbayan when they are involved in graft and corruption.

Malfeasance (see Arts 210 and 211) Misfeasance (see Arts 204 to 207)

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The Supreme Court held that a judgment is said to be unjust when it is contrary to the standards of conduct prescribed by law.

Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do Failure of an agent to perform his undertaking for the principal

The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not supported by evidence. [Louis Vuitton SA v. Judge Villanueva] ARTICLE 206 - UNJUST INTERLOCUTORY ORDER

Elements: (1) Offender is a judge; (2) He performs any of the following acts: (a) Knowingly rendering an unjust interlocutory order or decree; or (b) Rendering a manifestly unjust interlocutory

- KNOWINGLY RENDERING UNJUST

Elements: (1) Offender is a judge; (2) He renders a judgment in a case submitted to

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order or decree through negligence or ignorance.

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ARTICLE 209 – BETRAYAL OF TRUST BY AN ATTORNEY OR A SOLICITOR – REVELATION OF SECRETS

inexcusable

Elements: (1) Causing damage to his client, either— (a) By any malicious breach of professional duty; (b) By inexcusable negligence or ignorance. (2) Revealing any of the secrets of his client learned by him in his professional capacity (damage is not necessary); (3) Undertaking the defense of the opposing party in the same case, without the consent of his first client, (a) after having undertaken the defense of said first client, or (b) after having received confidential information from said client.

If the order leaves something to be done in the trial court with respect to the merits of the case, it is interlocutory. If it does not, it is final. The unjust interlocutory order must have been issued by the judge with deliberate intent to cause damage to the party concerned. ARTICLE 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE

Elements: (1) Offender is a judge; (2) There is a proceeding in his court; (3) He delays in the administration of justice; (4) The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case.

When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client.

Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other.

Communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize.

Mere delay without malice is not a felony under this provision.

The confidential matters or information must be confided to the lawyer in the latter’s professional capacity.

ARTICLE 208 - PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

Mode 1. Maliciously refraining from instituting prosecution against violators of the law; Mode 2. Maliciously tolerating the commission of offenses.

Mere malicious breach without damage is not a violation of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility.

Elements: (1) Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; (2) There is a dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause the prosecution of the criminal, or knowing that a crime is about to be committed, he tolerates its commission; (3) Offender acts with malice and deliberate intent to favor the violator of the law.

Modes of Commission: (1) Maliciously causing damage to his client through a breach of his professional duty. Note: The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline; (2) Through gross ignorance, causing damage to the client; (3) Inexcusable negligence; (4) Revelation of secrets learned in his professional capacity; (5) Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

This crime can only be committed by a public officer whose official duty is to prosecute offenders. Ex. Chief of police, barrio captain and fiscal. The crime committed by the law violator must be proved first. [US v. Mendoza] Also known as prevaricacion.

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The Supreme Court held that not all information received by counsel from client is classified as privileged.

not fall under corruption of public officials due to the involuntariness of the act). In the FIRST MODE of bribery, actual receipt of the gift is not necessary.

A distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed by the client. [People v. Sandiganbayan]

An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer.

ARTICLE 210 - DIRECT BRIBERY

Mode 1.

Mode 2.

Mode 3.

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Agreeing to perform, or performing, in consideration of any offer, promise, gift or present; an act constituting a crime, in connection with the performance of his official duties; Accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; Agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of gift or promise.

In the SECOND MODE of bribery, the gift must be accepted by the public officer. The GIFT must have a value or capable of pecuniary estimation. It could be in the form of money, property or services. It cannot consist of a mere offer or promise of a gift. If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime. The THIRD MODE of bribery and prevaricacion (art 208) are similar offenses, both consisting of omission of an act required to be performed.

Elements: (1) Offender is a public officer within the scope of Article 203; (2) Offender accepts an offer or a promise or receives a gift or present by himself or through another; (3) Such offer or promise be accepted, or gift or present received by the public officer – (a) With a view to committing some crime; or (b) In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or (c) To refrain from doing something which it is his official duty to do. (4) The act which offender agrees to perform or which he executes be connected with the performance of his official duties.

In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion. Direct bribery does not absorb Art. 208 (dereliction of duty). See Qualified Bribery (211-A) Police Sergeant Malfrosque asked and accepted money in exchange for the recovery of the reported stolen gas tanks to the owners. This made him liable under the 2nd mode of Art 210 since in the act of returning the gas tanks to the owners does not constitute a crime; he demanded money and said act was in connection with the performance of his duty as a policeman. [People v. Malfrosque (2004)]

The crime of bribery has no frustrated stage. If one party does not concur, then there is no agreement and not all the acts necessary to commit the crime were present.

ARTICLE 211 - INDIRECT BRIBERY

Elements: (1) Offender is a public officer; (2) He accepts gifts; (3) The gifts are offered to him by reason of his office.

Temporary performance of public functions is sufficient to constitute a person a public officer. Bribery exists when the gift is: (1) voluntarily offered by a private person; (2) solicited by the public officer and voluntarily delivered by the private person; (3) solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by the giver does

The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise.

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In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office.

Dacumas v. Sandiganbayan expanded the meaning of “official duties”. It included those which may be in one’s capacity to perform by reason of his office.

If after receiving the gift, the officer does any act in favor of the giver which is unfair to the others, the crime continues to be indirect bribery.

ARTICLE 212 - CORRUPTION OF PUBLIC OFFICIALS

Elements: (1) Offender makes offers or promises or gives gifts or presents to a public officer; (2) The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery.

Precisely the evil of indirect bribery is in its tendency to produce future, unspecified, and unwarranted favors from the official. This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery.

The offender is the giver of the gift or the offeror of the promise.

There must be clear intention on the part of the public officer: (1) to take the gift offered and (2) consider the property as his own for that moment.

The act may or may not be accomplished. CHAPTER III: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ARTICLE 213 - FRAUD AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES

Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer.

Mode 1

Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds;

Mode 2

Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in collection of taxes, licenses, fees, and other imposts;

Mode 3

Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts;

Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46. ARTICLE 211-A - QUALIFIED BRIBERY

Elements: (1) Offender is a public officer entrusted with law enforcement; (2) He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death; (3) Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present. The crime of qualified bribery may be committed only by public officers “entrusted with enforcement” (those whose official duties authorize them to arrest or prosecute offenders).

Mode 4 Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees and other imposts.

The penalty is qualified if the public officer is the one who asks or demands such present.

Elements of Fraud against Public Treasury (par.1): (1) That the offender is a public officer (2) That he should have taken advantage of his public office, that is, he intervened in the transaction in his official capacity (3) That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to:

If the penalty imposed is lower than reclusion perpetua and/or death had the offender been arrested or the crime prosecuted, the crime is direct bribery. The dereliction of the duty punished under Article 208 of the Revised Penal Code is absorbed in Qualified Bribery. PAGE 158

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(a) Furnishing supplies (b) The making of contracts (c) The adjustment or settlement of accounts relating to public property or funds

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Officers and employees of the BIR or Customs are not covered by the article. The NIRC or the Revised Administrative Code is the applicable law.

Consummated by merely entering into agreement with any interested party or speculator or by merely making use of other scheme to defraud the government.

ARTICLE 214 - OTHER FRAUDS

Elements: (1) Offender is a public officer; (2) He takes advantage of his official position; (3) He commits any of the frauds or deceits enumerated in Article 315 to 318 (estafa, other forms of swindling, swindling a minor, other deceits).

It is not necessary that the Government is actually defrauded by the reason of the transaction Elements of Illegal Exactions (par.2.): (1) That the offender is a public officer entrusted with the collection of taxes, licenses, fees and other imports; (2) He is guilty of the following acts or omissions: (a) Demanding directly or indirectly, the payment of sums of different from or larger than those authorized by law; (b) Failing voluntarily to issue a receipt as provided by law, for ay sum of money collected by him officially; or (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or object of a nature different from that provided by law

Additional penalty of temporary special disqualification in its maximum period to perpetual special disqualification, apart from the penalties imposed in Arts 315-318. ARTICLE 215 - PROHIBITED TRANSACTIONS

Elements: (1) Offender is an appointive public officer; (2) He becomes interested, directly or indirectly, in any transaction of exchange or speculation; (3) The transaction takes place within the territory subject to his jurisdiction; (4) He becomes interested in the transaction during his incumbency.

This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government.

Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price

Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to government is not required).

Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation.

The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt.

The offender may also be held liable under RA 3019 Sec 3(i). ARTICLE 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER

If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery.

Persons liable: (1) Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene; (2) Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted; (3) Guardians and executors with respect to the property belonging to their wards or the estate.

When there is deceit in demanding a greater fee than those prescribed by law, the crime committed is estafa and not illegal exaction. Illegal exaction may be complexed with malversation if illegal exaction was committed as a necessary means to commit malversation.

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Fraud is not necessary. Intervention must be by virtue of the public office held.

If the public officer is not accountable for the funds or property but someone else is, the crime committed is theft or qualified theft if there is an abuse of confidence.

The basis here is the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents. CHAPTER IV: MALVERSATION FUNDS OR PROPERTY

OF

Returning the malversed funds is not exempting, it is only mitigating.

PUBLIC

A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation

ARTICLE 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY - PRESUMPTION OF MALVERSATION

Mode 1.

Appropriating public funds or property;

Mode 2.

Taking or misappropriating the same;

Mode 3.

Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and

Mode 4.

Being otherwise guilty of the misappropriation or malversation of such funds or property.

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Demand as well as damage to the government are not necessary elements A private person may also commit malversation under the following situations: (1) Conspiracy with a public officer in committing malversation; (2) When he has become an accomplice or accessory to a public officer who commits malversation; (3) When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; (4) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.

Elements common to all modes: (1) Offender is a public officer; (2) He had the custody or control of funds or property by reason of the duties of his office; (3) Those funds or property were public funds or property for which he was accountable; (4) He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

Technical malversation (Article 220) is not included in the crime of malversation. Presumption of misappropriation: When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists.

Malversation is also called embezzlement. The public officer must have official custody or the duty to collect or receive funds due the government, or the obligation to account for them.

Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise.

It is not necessary that the offender profited for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another.

The accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, he partly reimbursed the amount and paid it in full three days later.

It can be committed either with malice or through negligence or imprudence. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or through culpa.

The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to coemployees which was a practice tolerated in the

The nature of the duties of the public officer, not the name of the office, is controlling. The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa. PAGE 160

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office. There was no negligence, malice, nor intent to defraud. [Quizo v. Sandiganbayan] Malversation (Art. 217)

Demand for accounting is not necessary. It is also not essential that there be misappropriation because if present, the crime would be malversation.

Estafa with Abuse of Confidence (Art. 315)

Funds or property usually Funds/property public always private

ARTICLE 219 - FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY

are

Elements: (1) Offender is a public officer; (2) He is an accountable officer for public funds or property; (3) He unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Commission on Audit showing that his accounts have been finally settled.

Offender is usually a public Offender is a private officer who is accountable for individual or even a the public funds/property public officer who is not accountable for public funds/property Crime is committed by appropriating, taking, or misappropriating/consenting or through abandonment or negligence, permitting any other person to take the public funds/property

Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property

No element of damage.

There is damage.

Demand not necessary.

There is a need for prior demand.

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The act of leaving the country must be unauthorized or not permitted by law. The purpose of the law is to discourage responsible or accountable officers from leaving without first liquidating their accountability. It is not necessary that they really misappropriated public funds. ARTICLE 220 PROPERTY

A routine government audit was conducted in WaAcon’s office and it was discovered that the sacks of rice entrusted to him for safekeeping were missing.

- ILLEGAL USE OF PUBLIC FUNDS OR

Elements: (1) Offender is a public officer; (2) There are public funds or property under his administration; (3) Such fund or property were appropriated by law or ordinance; (4) He applies such public fund or property to any public use other than for which it was appropriated for.

Art 217 no longer requires proof by the State that the accused actually appropriated, took, or misappropriated public funds or property; instead, a presumption, though disputable and rebuttable, was installed upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property which said officer is accountable for should be prima facie evidence that he had put such missing funds or properties to personal use. [People v. Wa-Acon (2006)]

Illegal use of public funds or property is also known as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose.

ARTICLE 218 - FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

Regardless of damage or embarrassment to the public service.

Elements: (1) Offender is public officer, whether in the service or separated therefrom by resignation or any other cause; (2) He is an accountable officer for public funds or property; (3) He is required by law or regulation to render account to the Commission on Audit, or to a provincial auditor; (4) He fails to do so for a period of two months after such accounts should be rendered.

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Malversation (Art. 217)

Technical malversation (Art. 220)

The offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latter’s own personal use.

The public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance.

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ARTICLE 221 - FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

Mode 1.

Failing to make payment by a public officer who is under obligation to make such payment from government funds in his possession;

Mode 2.

Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration.

Classes of prisoners involved (1) Those who have been sentenced by final judgment to any penalty; (2) Detention prisoners who are temporarily held in custody for any crime or violation of law or municipal ordinance. This includes allowing prisoners to sleep and eat in the officer’s house or utilizes the prisoner’s services for domestic chores. The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner.

Elements: (1) Public officer has government funds in his possession; (2) He is under obligation to either: (a) make payment from such funds; (b) to deliver any property in his custody or under his administration (3) He maliciously fails to make the payment or refuses to make delivery. (4) He maliciously fails to make the payment. ARTICLE 222 PROVISIONS

ARTICLE 224 - EVASION THROUGH NEGLIGENCE

Elements: (1) Offender is a public officer; (2) He is charged with the conveyance or custody of a prisoner or prisoner by final judgment; (3) Such prisoner escapes through negligence. This covers only positive carelessness and definite laxity which amounts to deliberate non-performance of duties. The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation.

- OFFICERS INCLUDED IN THE PRECEDING

(1) Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property (2) Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual.

The liability of an escaping prisoner: (1) If he is a prisoner by final judgment, he is liable for evasion of service (Art. 157) (2) If he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).

Sheriffs and receivers fall under the term “administrator.” A judicial administrator in charge of settling the estate of the deceased is not covered by the article.

ARTICLE 225 - ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER

Elements: (1) Offender is a private person; (2) The conveyance or custody of a prisoner or person under arrest is confided to him; (3) The prisoner or person under arrest escapes; (4) Offender consents to the escape, or that the escape takes place through his negligence.

Private property is included, provided it is (1) attached, (2) seized or (3) deposited by public authority. CHAPTER V: INFIDELITY OF PUBLIC OFFICERS ARTICLE EVASION

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223 - CONNIVING WITH OR CONSENTING TO

If the offender who aided or consented to the prisoner’s escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article 156.

Elements: (1) Offender is a public officer; (2) He had in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment; (3) Such prisoner escaped from his custody; (4) He was in connivance with the prisoner in the latter’s escape. (“shall consent to the escape”).

The party who is not the custodian but who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner.

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Art. 225 not applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested.

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Damage to public interest is necessary. However, material damage is not necessary. Removal is consummated upon taking or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished.

Policeman Rodillas escorted detained prisoner Sacris to the court. After the court adjourned he let her eat lunch with her family, permitted her to go to the ladies washroom unescorted and after her escape, did not report it immediately to his superiors, instead he went around looking for her.

This could cover failure on the part of the post office to forward the letters to their destination.

SC held that he is guilty of the crime in Art 224 for being negligent in the performance of his duties which made the escape of Sacris possible. [People v. Rodillas]

Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service. ARTICLE 227 - OFFICER BREAKING SEAL

ARTICLE 226 - REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

Revelation Of Secrets By An Removal, Concealment or Officer (Art. 229) Destruction of Documents (Art. 226) The papers contain secrets The papers do not contain and therefore should not secrets but their removal is be published, and the for an illicit purpose. public officer having charge thereof removes and delivers them wrongfully to a third person.

Elements: (1) Offender is a public officer; (2) He is charged with the custody of papers or property; (3) These papers or property are sealed by proper authority; (4) He breaks the seal or permits them to be broken. In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal. The element of damage is not required.

Elements: (1) Offender is a public officer; (2) He abstracts, destroys or conceals a document or papers; (3) Said document or papers should have been entrusted to such public officer by reason of his office; (4) Damage, whether serious or not, to a third party or to the public interest has been caused.

ARTICLE 228 - OPENING OF CLOSED DOCUMENTS

Elements: (1) Offender is a public officer; (2) Any closed papers, documents, or objects are entrusted to his custody; (3) He opens or permits to be opened said closed papers, documents or objects; (4) He does not have proper authority.

Can only be committed by the public officer who is made the custodian of the document in his official capacity.

The act should not fall under 227. Damage also not necessary ARTICLE 229 - REVELATION OF SECRETS BY AN OFFICER

If the officer was placed in possession of the document but it is not his duty to be the custodian thereof, this crime is not committed.

Mode 1.

The document must be complete and one by which a right could be established or an obligation could be extinguished.

Revealing any secrets known to the offending public officer by reason of his official capacity;

Elements: (1) Offender is a public officer; (2) He knows of a secret by reason of his official capacity; (3) He reveals such secret without authority or justifiable reasons; (4) Damage, great or small, is caused to the public

If the writings are mere forms, there is no crime.

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interest. Mode 2.

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CHAPTER VI: OTHER OFFENSES IRREGULARITIES BY PUBLIC OFFICERS

Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published.

OR

ARTICLE 231 - OPEN DISOBEDIENCE

Elements: (1) Officer is a judicial or executive officer; (2) There is a judgment, decision or order of a superior authority; (3) Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; (4) He, without any legal justification, openly refuses to execute the said judgment, decision or order, which he is duty bound to obey.

Elements: (1) Offender is a public officer; (2) He has charge of papers; (3) Those papers should not be published; (4) He delivers those papers or copies thereof to a third person; (5) The delivery is wrongful; (6) Damage is caused to public interest. Espionage is not contemplated in this article since revelation of secrets of the State to a belligerent nation is already defined in Art 117 and CA 616.

ARTICLE 232 - DISOBEDIENCE TO THE ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER

Secrets must affect public interest. Secrets of private persons are not included.

Elements: (1) Offender is a public officer; (2) An order is issued by his superior for execution; (3) He has for any reason suspended the execution of such order; (4) His superior disapproves the suspension of the execution of the order; (5) Offender disobeys his superior despite the disapproval of the suspension.

“Charge”: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article. If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets.

This does not apply if the order of the superior is illegal.

On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents.

ARTICLE 233 - REFUSAL OF ASSISTANCE

Elements: (1) Offender is a public officer; (2) A competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; (3) Offender maliciously fails to do so.

Damage is essential to the act committed. ARTICLE 230 - PUBLIC OFFICERS REVEALING SECRETS OF PRIVATE INDIVIDUALS

Elements: (1) Offender is a public officer; (2) He knows of the secrets of a private individual by reason of his office; (3) He reveals such secrets without authority or justifiable reason.

The request must come from one public officer to another. If he receives consideration therefore, bribery is committed.

Revelation to one person is sufficient. When the offender is a public attorney or a solicitor, the act of revealing the secret should not be covered by Art 209.

But mere demand will fall under the prohibition under the provision of Republic Act No. 3019 (AntiGraft and Corrupt Practices Act).

Damage to private individual is not necessary.

Applies whether or not serious damage to the public interest was committed.

The reason for this provision is to uphold faith and trust in public service.

ARTICLE 234 - REFUSAL TO DISCHARGE ELECTIVE OFFICE

Elements:

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(1) Offender is elected by popular election to a public office; (2) He refuses to be sworn in or to discharge the duties of said office; (3) There is no legal motive for such refusal to be sworn in or to discharge the duties of said office.

ARTICLE 236 - ANTICIPATION OF DUTIES OF A PUBLIC OFFICER

Elements: (1) Offender is entitled to hold a public office or employment, either by election or appointment; (2) The law requires that he should first be sworn in and/or should first give a bond; (3) He assumes the performance of the duties and powers of such office; (4) He has not taken his oath of office and/or given the bond required by law.

Once an individual is elected to an office by the will of the people, discharge of duties becomes a matter of duty, not only a right. This only applies for elective, not appointive officers. ARTICLE 235 - MALTREATMENT OF PRISONERS

Elements: (1) Offender is a public officer or employee; (2) He has under his charge a prisoner or detention prisoner; (3) He maltreats such prisoner in either of the following manners: (a) By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either (i) By the imposition of punishment not authorized by the regulations; (ii) By inflicting such punishments (those authorized) in a cruel and humiliating manner; (b) By maltreating such prisoners to extort a confession or to obtain some information from the prisoner.

ARTICLE 237 - PROLONGING PERFORMANCE OF DUTIES AND POWERS

Elements: (1) Offender is holding a public office; (2) The period provided by law, regulations or special provision for holding such office, has already expired; (3) He continues to exercise the duties and powers of such office. The offenders here can be those suspended, separated, declared over-aged, or dismissed. ARTICLE 238 - ABANDONMENT OF OFFICE OR POSITION

Elements: (1) Offender is a public officer; (2) He formally resigns from his position; (3) His resignation has not yet been accepted; (4) He abandons his office to the detriment of the public service.

This is committed only by such public officer charged with direct custody of the prisoner. Offender may also be held liable for physical injuries or damage caused.

For the resignation to be formal, it has to be in written form.

If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.

The offense is qualified when the purpose of the abandonment is to evade the discharge of duties of preventing, prosecuting, punishing any of the crimes falling within Title One and Chapter One of Title Three of book two of the RPC.

The offended party can either be a convict by final judgment or a detention prisoner. To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while. The maltreatment does not really require physical injuries. Any kind of punishment not authorized or although authorized if executed in excess of the prescribed degree. If the maltreatment was done in order to extort confession, the penalty is qualified to the next higher degree. See: Human Security Act of 2007 (R.A. 9372)

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Abandonment of Office or Position (Art. 238)

Dereliction of Duty (Art. 208)

Committed by any public Committed only by public officer officers who have the duty to institute prosecution for the punishment of violations of the law There is abandonment

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Dereliction of Duty (Art. 208)

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The disobedient officer is liable even if the jurisdictional question is resolved in his favor.

resignation to evade the merely fails to prosecute a discharge of duties violation of the law.

ARTICLE 243 - ORDERS OR REQUEST BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY

Elements: (1) Offender is an executive officer; (2) He addresses any order or suggestion to any judicial authority; (3) The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice.

ARTICLE 239 - USURPATION OF LEGISLATIVE POWERS

Elements: (1) Offender is an executive or judicial officer; (2) That he: (a) makes general rules or regulations beyond the scope of his authority; or (b) attempts to repeal a law; or (c) suspends the execution thereof.

The purpose is to maintain the independence of the judiciary from executive dictations.

Arts 239-241 punish interference by public officers of the executive or judiciary with the functions of another department of government to keep them within legitimate confines of their respective jurisdictions.

ARTICLE 244 - UNLAWFUL APPOINTMENTS

Elements: (1) Offender is a public officer; (2) He nominates or appoints a person to a public office; (3) Such person lacks the legal qualifications therefore; (4) Offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.

Legislative officers are not liable for usurpation of powers. ARTICLE 240 - USURPATION OF EXECUTIVE FUNCTIONS

Elements: (1) Offender is a judge; (2) That he: (a) assumes a power pertaining to the executive authorities, or (b) obstructs the executive authorities in the lawful exercise of their powers.

This can also be covered by RA 3019. Recommending, knowing that the person recommended is not qualified is not a crime. There must be a law providing for the qualifications of a person to be nominated or appointed to a public office.

ARTICLE 241 - USURPATION OF JUDICIAL FUNCTIONS

Elements: (1) Offender is an officer of the executive branch of the government; (2) That he: (1) assumes judicial powers, or (2) obstructs the execution of any order or decision rendered by any judge within his jurisdiction.

ARTICLE 245 - ABUSES AGAINST CHASTITY

ARTICLE 242 - DISOBEYING REQUEST FOR DISQUALIFICATION

Elements: (1) Offender is a public officer; (2) A proceeding is pending before such public officer; (3) There is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; (4) He has been lawfully required to refrain from continuing the proceeding; (5) He continues the proceeding.

Mode 1.

Soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer;

Mode 2.

Soliciting or making immoral or indecent advances to a woman under the offender’s custody;

Mode 3.

Soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer.

Elements:

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(c) "Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive.

(1) Offender is a public officer; (2) He solicits or makes immoral or indecent advances to a woman; (3) Such woman is – (a) interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or (b) under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or (c) the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.

(d) "Person" includes natural and juridical persons, unless the context indicates otherwise. Section 3.Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

The crime is consummated by mere proposal. The mother of the person in the custody of the public officer is not included but the offender may be prosecuted under the Section 28 of RA 3019 (AntiGraft and Corrupt Practices Act).

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

If the offender were not the custodian, then crime would fall under Republic Act No. 3019 (The AntiGraft and Corrupt Practices Act).

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.

Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman. The advances must be immoral or indecent. Proof of solicitation is not necessary when there is sexual intercourse.

Section 2.Definition of terms. As used in this Act, that term

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.

(a) "Government" includes the national government, the local governments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches.

(d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

(b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or

Abuse against chastity is not absorbed in rape because the basis of penalizing the acts is different from each other RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES

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government corporations charged with the grant of licenses or permits or other concessions.

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confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

Section 4.Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

Section 5.Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the VicePresident of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the

Section 6.Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will

Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

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be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term.

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manifestly out of proportion to his salary and other lawful income.

The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency.

Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing.

It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest.

(b) Any public officer violating any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year six months, or by both such fine and imprisonment, at the discretion of the Court.

Section 8.Prima facie evidence of and dismissal due to unexplained wealth. — If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently our of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation of the unexplained wealth is completed.

The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. Section 13.Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whether stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. “In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. Section 14.Exception. Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act.

Section 9.Penalties for violations. (a) any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth

Nothing in this Act shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupation by any private person or by any public officer who under the law may legitimately practice his profession, trade or occupation, during his incumbency, except where the practice of such

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profession, trade or occupation involves conspiracy with any other person or public official to commit any of the violations penalized in this Act.

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6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

RA 7080: ANTI-PLUNDER ACT

Section 1. Definition of Terms - As used in this Act, the term a) Public Officer means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract.

Section 2. Definition of the Crime of Plunder; Penalties - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. The court shall declare any and all illgotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State.

b) Government includes the National Government, and any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations and their subsidiaries. c) Person includes any natural or juridical person, unless the context indicates otherwise. d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: 1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

RA 9372: HUMAN SECURITY ACT

(Refer to Title I)

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

Title VIII. Crimes against Persons

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

Chapter I: Destruction of Life (1) Article 246 – Parricide (2) Article 247 - Death or Physical Injuries Under Exceptional Circumstances (3) Article 248 – Murder (4) Article 249 – Homicide (5) Article 250 - Penalty for Frustrated Parricide, Murder or Homicide (6) Article 251 - Death Caused in Tumultuous Affray (7) Article 252 - Physical Injuries Caused in Tumultuous Affray (8) Article 253 - Giving Assistance to Suicide (9) Article 254 - Discharge of Firearms (10) Article 255 – Infanticide (11) Article 256 - Intentional Abortion (12) Article 257 - Unintentional Abortion

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; 5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

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(13) Article 258 - Abortion Practiced by the Woman Herself or by Parents (14) Article 259 - Abortion by a Physician or Midwife and Dispensing of Abortives (15) Article 260 - Responsibility of Participants in a Duel (16) Article 261 - Challenging to a Duel

parricide but only homicide or murder, as the case may be.

Chapter II: Physical Injuries (1) Article 262 – Mutilation (2) Article 263 - Serious Physical Injuries (3) Article 264 - Administering Injurious Substances or Beverages (4) Article 265 - Less Serious Physical Injuries (5) Article 266 - Slight Physical Injuries and Maltreatment (6) Article 266-A - Rape (amended by RA 8353)

Since the accused’s relationship to the victim is not alleged in the information, she can be convicted of murder only. Relationship can be appreciated as a generic aggravating circumstance onlyl. [People v. Jumawan]

The key element in parricide is the relationship of the offender with the victim. Ergo, the fact of the relationship should be alleged in the information. [People vs. Dalag]

ARTICLE 247 - DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES

Elements: (1) A legally married person, or a parent, surprises his spouse or his daughter, the latter under 18 years of age and living with him in the act of sexual intercourse with another person; (2) He or she kills any or both of them, or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter; (3) He has not promoted or facilitated the prostitution of his wife or daughter, or that she has not consented to the infidelity of the other spouse.

About this Title: The essence of crimes involves the taking of human life, destruction of the fetus, or inflicting injuries. CHAPTER I DESTRUCTION OF LIFE ARTICLE 246 - PARRICIDE

Elements: (1) Person is killed; (2) Deceased is killed by the accused; (3) Deceased is the (a) legitimate/illegitimate father (b) legitimate/illegitimate mother (c) legitimate/illegitimate child * should not be less than 3 days old, otherwise crime is infanticide (d) other legitimate ascendant (e) other legitimate descendant (f) legitimate spouse.

“Living with parent(s)” is understood to be in their own dwelling. If done in a motel, article does not apply. “Surprise” means “to come upon suddenly and unexpectedly.” Immediately thereafter: there is no set time as jurisprudence has held 1 hour or even 4 hours as “immediately thereafter”. However, the act done must be a direct result of the outrage of the cuckolded spouse, and a continuous act from the moment of the surprising.

Essential element: relationship of offender with the victim; except for spouses, only relatives by blood and in direct line. Hence, adopted are not included. [Reyes] Supreme Court ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed.

Article does not apply: If the surprising took place before any actual sexual intercourse could be done. Destierro for killer spouse is not so much a penalty as it is meant to protect him from acts of reprisal by relatives of dead spouse. This is because law regards the act done in 247 as a lawful action.

Parricide when the penalty shall not be reclusion perpetua to death: (1) Reckless or simple imprudence (Art. 365) (2) Parricide by mistake (Art. 49) (3) Parricide under exceptional circumstances (Art. 247)

No criminal liability when less serious or slight physical injuries are inflicted. Does this article apply even if the daughter is married? Although the article does not use the word “unmarried,” this article applies only when the

A stranger who cooperates and takes part in the commission of the crime of parricide, is not guilty of

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daughter is single because while under 18 and single, she is still under parental authority. If she is married, her husband alone can claim the benefits of this article.

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destructive cyclone, epidemic, or any other public calamity; (e) with evident premeditation; (f) with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (4) The killing is not parricide or infanticide.

Evidence of the victim’s promiscuity is inconsequential to the killing. The offender must prove that he actually surprised his wife and [her paramour] in flagrante delicto, and that he killed the man during or immediately thereafter. [People v. Puedan]

One attendant qualifying circumstance is enough. If there are more than one alleged in the information for murder, only one will qualify the killing to murder and the other circumstances will be taken as generic aggravating circumstance.

The killing must be the direct result of the outrage suffered by the cuckolded husband. Although about one hour had passed between the time the accused discovered his wife having sexual intercourse with the victim and the time the latter was actually killed, it was held that Article 247 was applicable, as the shooting was a continuation of the pursuit of the victim by the accused.

Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information. When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating.

Inflicting death under exceptional circumstances is not murder.

When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide.

Two other persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. No aberratio ictus because he was acting lawfully. [People v. Abarca]

TREACHERY The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, deliberately adopted by the offender and were not merely incidental to the killing. Killing of a child of tender age is murder qualified by treachery.

ARTICLE 248 - MURDER

Elements: (1) Person was killed; (2) Accused killed him; (3) Killing attended by any of the following 2 2 qualifying circumstances – (EPIC SW AT) (a) with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; (b) in consideration of a price, reward or promise; (c) by means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; (d) on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano,

Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. FIRE When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide, a single indivisible crime penalized under Article 326, which is death as a consequence of arson.

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Intent to kill must be present for the use of fire to be appreciated as a qualifying circumstance. Intending to make fun of a mentally-disabled person, Pugay poured gasoline on the latter while Samson set him on fire. The victim died.

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Use of unlicensed firearm is an aggravating circumstance in homicide. Intent to kill is conclusively presumed when death resulted. Evidence of intent to kill is important only in attempted or frustrated homicide.

There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It was merely a part of their fun making but because their acts were felonious, they are criminally liable. [People v. Pugay and Samson]

In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law presumes intent to kill and punishes the result, and not the intent of the act. The accused will, however, be entitled to the mitigating circumstance of lack of intent to commit so grave a wrong.

POISON Treachery and evident premeditation are inherent in murder by poison only if the offender has the intent to kill the victim by use of poison.

Physical injuries sufficient to cause death are one of the essential elements of frustrated homicide.

EVIDENT PREMEDITATION Act of the offender manifestly indicating that he clung to his determination to kill his victim.

In accidental homicide wherein death of a person is brought about by a lawful act performed with proper care and skill and without homicidal intent, there is no liability.

Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced.

There is no offense of frustrated homicide through imprudence. Accused pharmacist prepared the medicine on prescription but erroneously used a highly poisonous substance. When taken by the patient, the latter nearly died. Accused is guilty only of reckless imprudence resulting in serious physical injuries.

Pariseo Tayag was shot dead by several policemen in the course of their pursuit to get his fan knife. Although it has not been shown which of the policemen fired the fatal shot each should be held guilty of murder since they are in conspiracy to effect the death of the victim. [People v. Buensuceso (1984)]

The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. [People v. Castillo]

CRUELTY Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, there must be evidence to that effect.

ARTICLE 250 - PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE

Courts may impose a penalty: (1) 2 degrees lower for frustrated parricide, murder, or homicide (2) 3 degrees lower for attempted parricide, murder, or homicide.

Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder.

For frustrated parricide, homicide or murder, the courts, in view of the facts f the case, may impose a penalty lower by one degree than that imposed under Art. 50.

ARTICLE 249 - HOMICIDE

Elements: (1) Person was killed; (2) Offender killed him without any justifying circumstances; (3) Offender had the intention to kill, which is presumed; (4) Killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.

Art. 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon a principal in a frustrated felony. Thus, under Art. 50, the court can impose a penalty of TWO DEGREES LOWER for frustrated parricide, murder, or homicide.

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For attempted parricide, homicide, or murder, the courts, in view of the facts of the case may impose a penalty by one degree than that imposed under Art. 51.

tumultuous disturbance, or if property destroyed, it could be malicious mischief.

was

Art. 51 provides that the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Thus, under Art. 250, the court can impose a penalty of THREE DEGREES LOWER for attempted parricide, murder, or homicide.

Elements: (1) There is a tumultuous affray; (2) A participant or some participants thereof suffered serious physical injuries or physical injuries of a less serious nature only; (3) The person responsible thereof cannot be identified; (4) All those who appear to have used violence upon the person of the offended party are known.

ARTICLE 252 - PHYSICAL INJURIES CAUSED IN TUMULTUOUS AFFRAY

NOTE: Any attempt on, or conspire against, the life of the Chief Executive of the Philippines or that of any member of his family, or against the life of any member of his cabinet or that of any member of the latter’s family, shall suffer the penalty of death.

Unlike in Article 251, the injured party in this article must be one or some of the participants in the affray.

ARTICLE 251 - DEATH CAUSED IN TUMULTUOUS AFFRAY

All those who appear to have used violence shall suffer the penalty next lower in degree than that provided for the serious physical injuries inflicted. For less serious physical injuries, the penalty is arresto mayor from five to fifteen days.

Elements: (1) There are several persons; (2) They do not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) These several persons quarreled and assaulted one another in a confused and tumultuous manner; (4) Someone was killed in the course of the affray; (5) It cannot be ascertained who actually killed the deceased; (6) The person or persons who inflicted serious physical injuries or who used violence can be identified.

Physical injury should be serious or less serious. No crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. Slight physical injury is considered as inherent in a tumultuous affray. ARTICLE 253 - GIVING ASSISTANCE TO SUICIDE

Mode 1:

Tumultuous affray is a commotion in a confused manner to an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known.

Mode 2:

Who are liable? (a) The person or persons who inflicted the serious physical injuries (b) If it is not known who inflicted the serious physical injuries on the deceased, all persons who used violence upon the person of the victim are liable.

Assisting another to commit suicide, whether the suicide is consummated or not; Lending his assistance to another to commit suicide to the extent of doing the killing himself.

Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal.

If there is conspiracy, this crime is not committed. The crime would be murder or homicide.

The relation of the offender to the person committing suicide is not material, the law does not distinguish. Hence, penalty would be the same if the offender is the father, mother or child.

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There can be no qualifying circumstance because the determination to die must come from the victim.

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Only the mother and maternal grandparents of the child are entitled to the mitigating circumstance of concealing the dishonor. Concealment of dishonor is not an element of infanticide. It merely lowers the penalty.

The person attempting suicide is not liable. Reason: He should be pitied, not punished. This does not contemplate euthanasia or mercy killing where the crime is murder. (if without consent; with consent, covered by Article 253). Euthanasia is not lending assistance to suicide. In euthanasia, the victim is not in a position to commit suicide.

A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the mother’s side, is liable for infanticide, but he must suffer the penalty prescribed for murder.

A doctor who resorts to euthanasia of his patient may be liable for murder. But if the patient himself asks to be killed by his doctor, this Article applies.

If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276.

ARTICLE 254 - DISCHARGE OF FIREARMS

No crime of infanticide is committed when the child was born dead, or although born alive, it could not sustain an independent life when it was killed.

Elements: (1) Offender discharges a firearm against or at another person. (2) Offender has no intention to kill that person.

ARTICLE 256 - INTENTIONAL ABORTION

Elements: (1) There is a pregnant woman; (2) Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; (3) As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; (4) The abortion is intended.

No crime if firearm is not discharged. It is essential for prosecution to prove that the discharge of firearm was directed precisely against the offended party. The crime is discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party If there is intention to kill, it may be classified as attempted parricide, murder, or homicide.

Ways of committing intentional abortion (1) Using any violence upon the person of the pregnant woman; (2) Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) (3) Acting (by administering drugs or beverages), with the consent of the pregnant woman.

No presumed intent to kill if the distance is 200 meters. There is a special complex crime of illegal discharge of firearm with serious or less serious physical injuries. ARTICLE 255 - INFANTICIDE

ABORTION vs. INFANTICIDE Abortion Infanticide Fetus could not sustain Fetus could sustain an independent life. No independent life after legal viability. separation from the mother’s womb.

Elements: (1) A child was killed by the accused; (2) The deceased child was less than 3 days old. If the offender is the parent and the victim is less than three days old, the crime is infanticide and not parricide.

If the mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion.

The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide.

In intentional abortion, the offender must know of the pregnancy because the particular criminal intent is to cause an abortion. PAGE 175

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If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury.

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The accused must have merely intended to kill the victim but not necessarily to cause abortion. The accused is liable for complex crime of parricide with unintentional abortion for it was merely incidental to the killing. [People v. Salufrania (1988)]

If she dies or suffers injuries, the crime will be homicide, serious physical injuries, etc.

For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. [People v. Carnaso]

Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort.

ARTICLE 258 - ABORTION PRACTICED BY THE WOMAN HERSELF OR BY PARENTS

Elements: (1) There is a pregnant woman who has suffered an abortion; (2) Abortion is intended; (3) Abortion is caused by – (a) The pregnant woman herself; (b) Any other person, with her consent; or (c) Any of her parents, with her consent for the purpose of concealing her dishonour.

ARTICLE 257 - UNINTENTIONAL ABORTION

Elements: (1) There is a pregnant woman; (2) Violence is used upon such pregnant woman without intending an abortion; (3) The violence is intentionally exerted; (4) Result of violence – fetus dies, either in the womb or expelled therefrom. Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the pregnant woman, without intention to cause the abortion.

If the purpose of abortion is to conceal dishonor, mitigation applies only to pregnant woman and not to parents of pregnant woman, unlike in infanticide. If the purpose of parents is not to conceal dishonor, the crime is intentional abortion.

If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats.

Liability of the pregnant woman is mitigated if purpose is to conceal dishonor.

If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion.

No mitigation for parents of pregnant woman even if the purpose is to conceal dishonor. The penalty for the parents in this case is the same as the penalty for a pregnant woman committing abortion, without the purpose of concealing dishonor.

Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary.

ARTICLE 259 - ABORTION BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES

If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the woman’s pregnancy, there is no liability.

Elements: (1) There is a pregnant woman who has suffered an abortion; (2) The abortion is intended; (3) Offender, who must be a physician or midwife, caused or assisted in causing the abortion; (4) Said physician or midwife took advantage of his or her scientific knowledge or skill.

Jose is declared guilty of the crime of unintentional abortion through reckless imprudence for having bumped a calesa which resulted in a pregnant woman bumping her abdomen against the wall of the calesa and eventually led to an abortion. [People v. Jose]

The penalties provided for intentional abortion shall be imposed in the maximum period for physicians and midwives violating this article.

Mere boxing of the stomach taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause abortion.

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Reason: heavier guilt in making use of their knowledge for the destruction of human life, when it should be used only for its preservation.

If these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code.

If the abortion is produced by a physician to save the life of the mother, there is no liability.

It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.

Elements (for pharmacists): (1) The offender is a pharmacist; (2) There is no proper prescription from a physician; (3) The offender dispenses any abortive.

ARTICLE 261 - CHALLENGING TO A DUEL

Mode 1. Challenging another to a duel; Mode 2. Inciting another to give or accept a challenge to a duel; Mode 3. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel.

Article punishes a pharmacist who merely dispenses with an abortive without the proper prescription of a physician. It is not necessary that the pharmacist knows that the abortive would be used to cause an abortion. What is punished is the dispensing of the abortive without the proper prescription. It is not necessary that the abortive be actually used either.

Persons Responsible under Art. 261: (1) Challenger (2) Instigators If one challenges another to a duel by shouting “Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down”, the crime of challenging to a duel is not committed.

If pharmacist knew that the abortive would be use for abortion, her would be liable as an accomplice in the crime of abortion. ARTICLE 260 - RESPONSIBILITY OF PARTICIPANTS IN A DUEL

Mode 1:

Killing one’s adversary in a duel;

Mode 2:

Inflicting upon such adversary physical injuries;

Mode 3:

Making a combat although no physical injuries have been inflicted.

What is committed is the crime of light threats under Article 285, paragraph 1 of the Revised Penal Code.[People v. Tacomoy] CHAPTER II PHYSICAL INJURIES ARTICLE 262 - MUTILATION

Mode 1.

Persons liable (1) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. (2) The seconds, as accomplices.

Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction; (Mutilation)

Elements: (1) There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; (2) The mutilation is caused purposely and deliberately

Duel is a formal or regular combat previously consented to by two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel.

Mode 2.

Persons Liable: (1) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. (2) The seconds, as accomplices

Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. (Mayhem).

Intent to mutilate must be established. If there is no intent, the crime is only serious physical injury. The offender must have the intention to deprive the offended party of a part of his body. If there is no

There is no such crime nowadays because people hit each other even without entering into any preconceived agreement. This is an obsolete provision. PAGE 177

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such intention, the crime will be serious physical injuries.

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Loss of the use of hand, or incapacity for work under the second type, must be permanent.

MUTILIATION – the lopping or clipping off of some part of the body CASTRATION - intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction

All the body parts mentioned in the second type are principal members of the body (eye, hand, foot etc.) The third type covers any other part of the body which is not a principal member of the body.

MAYHEM - intentionally making other mutilation other than some essential organ for reproduction and to deprive him of that part of the body

Deformity – physical ugliness, permanent and definite abnormality. It must be conspicuous and visible.

ARTICLE 263 - SERIOUS PHYSICAL INJURIES

Modes of Commission: (1) By wounding; (2) By beating; (3) By assaulting; or (4) By administering injurious substance. (Art. 264)

Elements of deformity: (a) physical ugliness, (b) permanent and definite abnormality, and (c) it must be conspicuous and visible. All these elements must concur.

Levels of Penalty: When the injured person, in consequence of the physical injuries inflicted— (1) becomes insane, imbecilic, impotent or blind (2) loses the use of speech or the power to hear or to smell, or loses an eye, a hand, afoot, an arm, or a leg; (3) loses the use of any such member; (4) becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted; (5) becomes deformed; or (6) loses any other member of his body; (7) loses the use thereof; or (8) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days in consequence of the physical injuries inflicted; (9) becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted.

Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. Loss of both outer ears is a deformity. Loss of the lobule of the ear is a deformity. Loss of index and middle fingers only is either deformity or loss of a member, not a principal one, of his body or use of the same. Loss of power to hear of right ear only is loss of use of other part of body. Illness – when the wound inflicted did not heal with a certain period of time. Note that under serious physical injuries of the fourth type, illness or incapacity is required, NOT medical attendance. Paragraphs 2 and 3 refers to the “work in which he was theretofore habitually engaged Must the injured party have an avocation at the time at the time of the injury? YES, insofar as these two paragraphs are concerned.

In physical injuries, there must not be intent to kill, otherwise the crime is frustrated/attempted murder or homicide as the case may be.

Incapacity therefore must related to a certain kind of work only.

Impotence under first type means an inability to copulate. It is used synonymously with ‘sterility’. Penalty under the first type is one degree higher when the victim is under 12 years of age.

However, in paragraph 4, incapacity for any kind of work is acceptable, because the phrase “incapacity for labor” is used. Injury requiring hospitalization for more than thirty days is serious physical injuries under paragraph 4.

Blindness under the second type must be of two eyes. If there is loss of one eye only, the serious physical injuries is of the second type.

When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of

Loss of power to hear under the second type must be of both ears. If hearing in only one ear is lost, it falls under the third type. PAGE 178

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that period; otherwise, the offense is only slight physical injuries.

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(c) The ugliness will not disappear through natural healing process.

Lessening of efficiency due to injury is NOT incapacity. Illustration: (1) Loss of molar tooth – This is not deformity as it is not visible. (2) Loss of permanent front tooth – This is deformity as it is visible and permanent. (3) Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced.

Distinguished from mutilation: In mutilation, the body parts should have been purposely and deliberately lopped or clipped off. This intention is not present in serious physical injuries. ARTICLE 264 - ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES

Serious physical injuries is punished with higher penalties in the following cases: (1) If it is committed against any of the persons referred to in the crime of parricide under Article 246; (2) If any of the circumstances qualifying murder attended its commission.

Elements: (1) Offender inflicted upon another any serious physical injury; (2) It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; (3) He had no intent to kill.

See Special Law: RA 8049 (The Anti-Hazing Law)

Physical Injuries vs. Attempted or Frustrated homicide Physical Injuries Attempted or Frustrated homicide The offender inflicts physical injuries.

See Special Law: RA 9745 (The Anti-Torture Law) ARTICLE 265 - LESS SERIOUS PHYSICAL INJURIES

Attempted homicide may be committed, even if no physical injuries are inflicted.

Elements: (1) Offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time; (2) The physical injuries must not be those described in the preceding articles.

Offender has no intent to The offender has an intent kill the offended party to kill the offended party. The reason why there is no attempted or frustrated crime of physical injuries is because this felony is defined by the gravity of the injury. It is a crime of result. As long as there is no injury, there can be no attempted or frustrated stage thereof.

Qualified as to penalty (1) A fine not exceeding P 500.00, in addition to arresto mayor, when (a) There is a manifest intent to insult or offend the injured person; or (b) There are circumstances adding ignominy to the offense. (2) A higher penalty is imposed when the victim is either: (a) The offender’s parents, ascendants, guardians, curators or teachers; or (b) Persons of rank or person in authority, provided the crime is not direct assault.

Classification of physical injuries: (1) Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. (2) When the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries.

ARTICLE 266 - SLIGHT PHYSICAL INJURIES AND MALTREATMENT

(3) Deformity requires the concurrence of the following conditions: (a) The injury must produce ugliness; (b) It must be visible;

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Mode 1.

Physical injuries incapacitated the offended party for labor from 1-9 days, OR required medical attendance during the same period;

Mode 2.

Physical injuries which did not prevent

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the offended party from engaging in his habitual work or which did not require medical attendance; Mode 3.

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otherwise unconscious; (c) By means of fraudulent machination or grave abuse of authority; (d) When the woman is under 12 years of age (Statutory Rape) or is demented.

Ill-treatment of another by deed without causing any injury.

Mode 2: Rape Through Sexual Assault This involves even ill-treatment where there is no sign of injury requiring medical treatment.

Elements: (1) Offender commits an act of sexual assault; (2) The act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person's mouth or anal orifice; or (b) By inserting any instrument or object into the genital or anal orifice of another person; (3) The act of sexual assault is accomplished under any of the following circumstances: (a) By using force or intimidation; or (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age or demented.

Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries. But if the slapping is done to cast dishonor upon the person slapped, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is slander by deed. Between slight physical injuries and less serious physical injuries, not only the healing duration of the injury will be considered but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries.

Classification of rape (1) Traditional Rape (a) Offended party is always a woman (b) Offender is always a man.

The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries.

(2) Sexual assault (a) Rape can now be committed by a man or a woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. (b) Inserting a finger inside the genital of a woman is rape through sexual assault within the context of ‘object’.

Where there is no evidence of actual injury, it is only slight physical injuries. In the absence of proof as to the period of the offended party’s incapacity for labor or of the required medical attendance, the crime committed is slight physical injuries.

Penalties Traditional Rape Sexual Assault In general: Reclusion In general: Prision perpetua mayor (A) Committed: (1) with the use of a deadly weapon; or (2) by 2 or more persons Reclusion perpetua to Prision mayor to death reclusion temporal (B) Victim becomes insane by reason or on the occasion of rape Reclusion perpetua to Reclusion temporal death (C) Rape is attempted & homicide is committed by reason or on the occasion thereof Reclusion perpetua to Reclusion temporal to

See Special Law: RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) ARTICLE 266-A - RAPE (AMENDED BY RA 8353)

Mode 1:

Rape through sexual intercourse without consent of the woman: (Traditional Rape)

Elements: (1) Offender is a man; (2) Offender had carnal knowledge of a woman; (3) Such act is accomplished under any of the following circumstances: (a) By using force, threat or intimidation; (b) When the woman is deprived of reason or is

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death reclusion perpetua (D) Rape is consummated & homicide is committed by reason or on the occasion thereof (a special complex crime) Death Reclusion perpetua Committed with any of the ff. aggravating circumstances: (1) On the VICTIM: (a) victim is under 18 yrs. old, & the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity w/in the rd 3 civil degree, or the common law spouse of the parent of the victim (b) victim is under the custody of the police / military authorities / law enforcement agency (c) victim is a religious and such legitimate vocation is known by the offender before or at the time of rape (d) victim is a child below 7 yrs. old (e) victim suffered permanent or physical mutilation or disability by reason or on the occasion of rape

Old Anti-Rape Law parents, grandparents or guardian if the woman was a minor or incapacitated Marriage of the victim w/ one of the offenders benefits not only the principal but also the accomplices and accessories Marital rape recognized

A soldier raped a 19-year old student by poking a knife on her neck. Only a portion of his penis entered her vagina because the victim kept on struggling until she was able to escape. The accused was convicted of frustrated rape. There is NO crime of FRUSTRATED RAPE because in rape, from the moment the offender has carnal knowledge of the victim, he actually attains his purpose, all the essential elements of the offense have been accomplished. [People v. Orita] The accused had his pants down and was on top of the 4-year old child when the child’s mother arrived. Medical findings showed no signs of genital injury and the victim’s hymen was intact.

RD

For rape to be consummated, a slight brush or scrape of the penis on the external layer of the vagina will not suffice. Mere touching of the external layer of the vagina without the intent to enter the same cannot be construed as slight penetration.

Old Anti-Rape Law vs. RA 8353

Crime against chastity May be committed by a man against a woman only

Crime against persons nd Under the 2 type, sexual assault may be committed by ANY PERSON against ANY PERSON May be prosecuted even if the woman does not file a complaint

PRIVATE CRIME – Complaint must be filed by the woman or her

Marriage extinguishes the penal action only as to the principal (the person who married the victim), and cannot be extended to coprincipals in case of MULTIPLE RAPE Marital rape recognized

Rape must have specific intent or lewd design.

(3) On 3 PERSONS: Rape is committed in full view of the of the spouse, parent, any of the rd children, or other relatives w/in the 3 civil degree of consanguinity

RA 8353

NOT

RA 8353

Complete penetration is NOT necessary. The slightest penetration—contact with the labia—will consummate the rape.

(2) On the OFFENDER: (a) Offender is afflicted with a sexually transmissible disease & the virus / disease is transmitted to the victim (b) Offender is a member of the AFP / PNP / any law enforcement agency / penal institution, & took advantage of his position (c) Offender knew of the pregnancy of the offended party at the time of the commission of rape (d) Offender knew of the mental disability, emotional disorder, & / or physical handicap of the offended party at the time of the commission of rape

Old Anti-Rape Law

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Accused is only liable for ATTEMPTED RAPE. Conviction does not require a medico-legal finding of any penetration on the part of the woman. Force employed against the victim of the rape need not be of such character as could be resisted. When the offender has an ascendancy or influence over the girl, it is not necessary that she put up a determined

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resistance. A rape victim does not have the burden of proving resistance.

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(1) the accused is legally married to the victim’s sister; and (2) the victim and the accused’s wife are full or halfblood siblings.

Rape by means of fraudulent machinations and grave abuse of authority absorbs the crime of qualified and simple seduction.

Since relationship qualifies the crime of rape, there must be clearer proof of relationship and in this case, it was not adequately substantiated. [People v. Berana]

Statutory Rape is the rape of a woman who is below 12 years of age. In statutory rape, the under twelve years old victim is conclusively presumed incapable of giving consent to sexual intercourse with another. [People v. Negosa, GR No. 142856-57, Aug. 25, 2003]

“Unconscious” or “Deprived of Reason” Deprived or reason or unconscious mean that the victim has no will to give consent intelligently and freely. The inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.

Statutory rape is consummated when the victim is below 12 yrs. old. Victim’s consent is immaterial. Offender’s knowledge of the victim’s age is immaterial in statutory rape. Carnal knowledge of a child below 12 yrs. old even if she is engaged in prostitution is still considered statutory rape. [People v. Campuhan]

Whether the complaint stated that the victim was fast asleep or half-asleep or drowsy or semiconscious is not determinative of the crime of rape. For he who lies with a woman while the latter is in a state of being drowsy is guilty of rape. Drowsiness is defined as the state of being drowsy, i.e., ready to fall asleep or half-asleep. [People v. Siarza, Jr., GR No. L117682, Aug. 18, 1997]

A 16-year old mental retardate, who has the intellectual capacity of a 9, was repeatedly raped by the accused. The accused was found guilty of raping a woman deprived of reason or otherwise unconscious, and was also held liable for rape under the provision that pertains to a victim under 12 notwithstanding the victim’s actual age.

Rape through Sexual Assault The insertion of appellant’s fingers constituted consummated rape through sexual assault under RA 8353. The contact of the male’s penis with the woman’s vagina is referred to as ‘rape with sexual intercourse”, while the sexual abuse under par.2 of Art.266-A, RPC is categorized as “rape through sexual assault”. In People vs. Soriano [G.R. Nos 142779-95, 388 SCRA 140], it was ruled that the appellant is guilty of Rape through Sexual Assault when he inserted his finger into the vagina of the victim. [People v. Palma, GR No. 148869-74, Dec. 11, 2003]

Age requirement was subsequently amended to refer also to mental age. Incestuous rape refers to rape committed by an ascendant of the offended woman. [People v. Atento] Gallo was found guilty of the crime of qualified rape with the penalty of death. The information filed against him does not allege his relationship with the victim, his daughter, thus, it CANNOT be considered as a qualifying circumstance. Special qualifying circumstances have to be alleged in the information for it to be appreciated.

Insertion of penis into the mouth of a 10-year old boy is “Rape by Sexual Assault” punished under par.2, Article 266-A, RPC. [Ordinario v. People, et al., GR No. 155415, May 20, 2004] Evidence which may be accepted in the prosecution of rape: (1) Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or (2) Where the offended party is so situated as to render him/her incapable of giving his consent

The case was reopened and the judgment is modified from death to reclusion perpetua. [People v. Gallo] A 14-year old was raped by her brother-in-law. To effectively prosecute the accused for the crime of rd rape committed by a relative by affinity w/in the 3 civil degree, it must be established that:

Rape shield rule: Character of the offended woman is immaterial in rape.

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issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community.

An accused may be convicted of rape on the sole testimony of the offended woman. When several persons conspired to rape a single victim, each shall be liable for the rape committed personally by him, as well as those committed by the others.

All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent.

An accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided, a man is charged together with her.

Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person. [Salvador v. People (2008)]

What Determines the Number of Times the Victim was Raped? Appellant ejaculated twice during the time that he consummated the rape. Appellant did not withdraw his penis to insert it again into the vagina or to touch the labia majora and the labia minora when he ejaculated the second time. It is not the number of times that appellant ejaculated but the penetration or ‘touching’ that determines the consummation of the sexual act. Thus appellant committed only one count of rape.[People v. Ferrer, GR No. 142662, Aug. 14, 2001; People v. Orilla, GR No. 148939-40, Feb. 13, 2004]

Murder Murder is committed by any person who, not falling within the provisions of Article 246 of the Revised Penal Code (RPC), kills another, if the killing is committed with treachery. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself.

Effect of Pardon (1) Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. (2) When the legal husband is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty, provided that their marriage is NOT VOID ab initio.

The killing occurred at around two o’clock in the morning, an hour when generally people are asleep and the victim was shot at the back. [People v. Bohol (2008)] Qualified Rape There is qualified rape when the facts alleged in the Information and the facts proven in court establish the qualifying circumstances of minority and relationship. [People v. Abellano (2007)]

Jurisprudence on TITLE EIGHT: Frustrated Homicide By invoking self-defense, accused, in fact, admitted that he inflicted injuries on the victim. The burden of proving with clear and convincing evidence the justifying circumstances to exculpate him from criminal liability was thereby shifted to him. [De Leon v. People (2007)]

A stepfather, who exercises moral and physical ascendancy over his stepdaughter, need not make any threat against her because the latter is cowed into submission when gripped with the fear of refusing the advances of a person she customarily obeys.

Homicide Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt.

Rape may, likewise, be committed in a room adjacent to where the victim's family is sleeping, or even in a room shared with other people. There is no rule that rape can only be committed in seclusion. [People v. Glivano (2008)] Rape Physical resistance need not be established in rape when intimidation is exercised upon the victim who

Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in

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submits against her will to the rapist’s lust because of fear for her life or personal safety.

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(7) RA 9372: Human Security Act

The force, violence or intimidation in rape is a relative term, depending not only on the age, size, and strength of the parties but also on their relationship with each other. Because of the victim’s youthfulness, coupled with the fact that the assailant is her stepfather, it was easy for her to believe that appellant would make good his threat to kill her should she resist. [People v. Tuazon (2007)]

Title IX. Crimes against Personal Liberty and Security Chapter I: Crimes against Liberty (1) Article 267 - Kidnapping and Serious Illegal Detention (2) Article 268 - Slight Illegal Detention (3) Article 269 - Unlawful Arrest (4) Article 270 - Kidnapping and Failure to Return a Minor (5) Article 271 - Inducing a Minor to Abandon His Home (6) Article 272 – Slavery (7) Article 273 - Exploitation of Child Labor (8) Article 274 - Services Rendered Under Compulsion in Payment of Debt

Rape An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. The precise time or date of the commission of an offense need not be alleged in the complaint or information, unless it is an essential element of the crime charged. In rape, it is not. The gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. [People v. Domingo (2007)]

Chapter II: Crimes against Security (1) Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim (2) Article 276 - Abandoning a Minor (3) Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents (4) Article 278 - Exploitation of Minors (5) Article 280 - Qualified Trespass to Dwelling (6) Article 281 - Other Forms of Trespass (7) Article 282 - Grave Threats (8) Article 283 - Light Threats (9) Article 284 - Bond for Good Behavior (10) Article 285 - Other Light Threats (11) Article 286 - Grave Coercions (12) Article 287 - Light Coercions (13) Article 288 - Other Similar Coercions (14) Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats

Rape BY a Minor The accused at the time of the commission of the offense was only 13 years old and it occurred prior to RA 9344 or the Juvenile Justice and Welfare Act of 2006. The subsequently enacted law should be construed to retroact in favor of the accused. While the latter is now 25 years old as of this decision, he is still exculpated from criminal liability.

Chapter III: Discovery and Revelation of Secrets (1) Article 290 - Discovering Secrets through Seizure of Correspondence (2) Article 291 - Revealing Secrets with Abuse of Office (3) Article 292 - Revelation of Industrial Secrets

However, RA 9344 does not relieve the minor of civil liability arising from the offense. [Ortega v. People (2008)] See Also: (1) RA 9262: Anti-Violence against Women and their Children (2) RA 9775: Anti-Child Pornography Law (3) RA 8049: Anti-Hazing Law (4) RA 7610: Special Protection of Children Against Child Abuse (5) RA 9344: Juvenile Justice and Welfare act (6) PD 603: Child and Youth Welfare Code

CHAPTER I CRIMES AGAINST LIBERTY ARTICLE 267 DETENTION

- KIDNAPPING AND SERIOUS ILLEGAL

Elements: (PICK) (1) Offender is a private individual; (2) He kidnaps or detains another, or in any PAGE 184

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Actual demand for ransom not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money.

other manner deprives the latter of his liberty; (3) The act of detention or kidnapping must be illegal; (4) In the commission of the offense, any of the following circumstances is present: (a) The kidnapping lasts for more than 3 days; (b) it is committed simulating public authority; (c) Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) The person kidnapped or detained is a minor, female, or a public officer.

In the crime of Kidnapping for Ransom, ransom means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. No specific form of ransom is required to consummate the felony as long as the ransom was intended as a bargaining chip in exchange for the victim’s freedom. Whether or not ransom is actually paid to or received by the perpetrator is of no moment. [People v. Jatulan, GR No. 171653, April 24, 2007] Essential: There be actual confinement or restriction of the person of the offended party. It is not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty.

The essential element of kidnapping is the deprivation of the offended party’s liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present.

It suffices that there be actual or manifest restraint on the person or liberty of the victim. Accused were guilty of kidnapping although the victim was found, at the time of her rescue, outside of the house where she was brought, talking to the house owner who was the uncle of the accused. Her failure to attempt to escape was explained by her to be due to her fear and threats of the accused to kill her should she do so. In kidnapping, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. [People v. Cortez, et al., GR No. 131619-20, Feb 1, 2000]

2

Qualifying Circumstances: (r kt) (1) Purpose is to extort ransom. (2) When the victim is killed or dies as a consequence of the detention. (3) When the victim is raped. (4) When victim is subjected to torture or dehumanizing acts. The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2.

The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have inceptually consented to go with the offender to a place, but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. [People v. Pickrell, GR No. 120409, Oct. 23, 2003]

When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present.

When detention is illegal: It is not ordered by competent authority nor permitted by law.

Definition of ransom: It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity.

Special complex crime of Kidnapping with Murder: When the victim dies or is killed as a consequence of the detention, which is covered by the last paragraph of Art. 267 as amended.

When the kidnapping was done to extort ransom, it is not necessary that one or any of circumstances enumerated be present.

Forcible abduction: If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.

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Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration. [People v. Cenahonon (2007)]

Serious illegal detention: If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion: If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. Illegal detention

Article 267 has been modified by Republic Act No. 7659 (AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES) in the following respects: (1) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; (2) In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; (3) A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. (4) The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. (5) It eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought.

Arbitrary detention

Committed by a private individual who unlawfully deprives a person of his liberty

Committed by public officer or employee who detains a person without legal ground

Crime against personal liberty

Crime against the fundamental laws of the State

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Where the evident purpose of taking the victim was to kill him, and from the acts of the accused it cannot be inferred that the latter’s purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of kidnapping. The demand for ransom did not convert the crime into kidnapping, since no deprivation of liberty was involved. [People v Padica (1993)] The essence of kidnapping is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. [People v Luartes (1999)] The duration of the detention even if only for a few hours does not alter the nature of the crime committed. [People v Pavillare (2000)] Physical detention is not necessary. It is enough that the victim is under the complete control of the perpetrators as in this case when the Japanese victim had to rely on his abductors for survival after he was tricked into believing that the police was after him.

ARTICLE 268 - SLIGHT ILLEGAL DETENTION

Elements: (PrIKO) (1) Offender is a private individual; (2) He kidnaps or detains another, or in any other manner deprives him of his liberty. (3) The act of kidnapping or detention is illegal; (4) The crime is committed without the attendance of any of the circumstances enumerated in Article 267.

It was also held in this case that keeping a person as collateral for payment of an obligation is kidnapping. [People v. Tomio] The elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 7659 warranting the imposition of the death penalty, are as follows: (1) intent on the part of the accused to deprive the victim of his liberty; (2) actual deprivation of the victim of his liberty; and (3) motive of the accused, which is extorting ransom for the release of the victim.

This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. The penalty is lowered if: (1) The offended party is voluntarily released within three days from the start of illegal detention; (2) Without attaining the purpose; (3) Before the institution of the criminal action.

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Delay in The Delivery of Unlawful Arrest (Art. 269) Detained Persons (Art. 125)

The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect.

Crime is committed by Committed by making an failing to deliver such arrest not authorized by person to the proper law judicial authority within a certain period.

The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.

ARTICLE MINOR

ARTICLE 269 - UNLAWFUL ARREST

270 - KIDNAPPING AND FAILURE TO RETURN A

Elements: (EF) (1) Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 18 years of age) (2) He deliberately fails to restore the said minor to his parents or guardians

Elements: (ADU) (1) Offender arrests or detains another person; (2) The purpose of the offender is to deliver him to the proper authorities; (3) The arrest or detention is not authorized by law or there is no reasonable ground therefor. (unauthorized).

If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267.

This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities.

The essential element which qualifies the crime of kidnapping a minor under Art. 270 is that the offender is entrusted with the custody of the minor.

Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.

If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed.

If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest.

What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians.

If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268.

The deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). [People v. Generosa]

If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply.

Where a minor child was taken by the accused without the knowledge and consent of his parents, the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. [People v. Mendoza]

Note: This felony may also be committed by public officers.

Art. 270 distinguished from Art. 267

Unlawful Arrest vs. Delay in the Delivery of Detained Persons Delay in The Delivery of Unlawful Arrest (Art. 269) Detained Persons (Art. 125) Detention is for some legal ground.

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Detention is not authorized by law.

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Art. 270

Art. 267

Offender is entrusted with the custody of the minor

The offender is not entrusted with the custody of the minor.

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without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery. ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME

See Special Law: RA 9208 (Anti-Trafficking of Person Act of 2003)

Elements: (LI) (1) A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; (2) Offender induces said minor to abandon such home.

ARTICLE 273 - EXPLOITATION OF CHILD LABOR

Elements: (RARage) (1) Offender retains a minor in his services; (2) It is against the will of the minor; (3) It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.

Inducement must be (a) actual, and (b) committed with criminal intent The minor should not leave his home of his own free will.

The existence of indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.

What constitutes the crime is the act of inducing a minor to abandon his home of his guardian, and it is not necessary that the minor actually abandons the home.

ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

Elements: (CAP) (1) Offender compels a debtor to work for him, either as a household servant or farm laborer; (2) It is against the debtor’s will; (3) The purpose is to require or enforce the payment of a debt.

Father or mother may commit the crimes in Art. 170 and 171 where they are living separately and the custody of the minor children is given to one of them. ARTICLE 272 - SLAVERY

Elements: (PE) (1) Offender purchases, sells, kidnaps or detains a human being; (2) The purpose of the offender is to enslave such human being.

See Special Law: RA 9231 (Anti-Child Labor Act of 2003) Service under Compulsion distinguished from Exploitation of Child Labor Service under Compulsion Exploitation of Child Labor Does not distinguish Victim must be a minor whether the victim is a minor or not The debtor himself is the The minor is compelled one compelled to work to render services for the for the offender supposed debt of his parents or guardian Limited to household Service is not limited work or farm labor

This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him. The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341.

CHAPTER II: CRIMES AGAINST SECURITY ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM

The employment or custody of a minor with the consent of the parent or guardian, although against the child’s own will, cannot be considered involuntary servitude.

MODE 1:

But where is proven that the defendant was obliged to render service in plaintiff’s house as a servant

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Failing to render assistance to any person whom the offender finds in an uninhabited place, wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.

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The ruling that the intent to kill is presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 276.

Elements: (UWOF) (1) The place is not inhabited; (2) Accused found there a person wounded or in danger of dying; (3) Accused can render assistance without detriment to himself; (4) Accused fails to render assistance. MODE 2:

Failing to help or render assistance to another whom the offender has accidentally wounded or injured; (FA)

MODE 3:

By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to deliver him to a safe place. (SAD).

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ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS

MODE 1:

Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities;

Immaterial: That the offender did not know that the child is under seven years.

Elements: (1) Offender has charge of the rearing or education of a minor; (2) He delivers said minor to a public institution or other persons; (3) The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it.

ARTICLE 276 - ABANDONING A MINOR

MODE 2.

Does not apply: When a person intentionally wounds another and leaves him in an uninhabited place.

Elements: (SCAN) (1) Offender has the custody of a child; (2) The child is under seven years of age; (3) He abandons such child; (4) He has no intent to kill the child when the latter is abandoned.

Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits.

Elements: (1) Offender is a parent; (2) He neglects his children by not giving them education; (3) His station in life requires such education and his financial condition permits it.

Circumstances qualifying the offense: (1) When the death of the minor resulted from such abandonment; or (2) If the life of the minor was in danger because of the abandonment.

Obligation to educate children terminates, if the mother and children refuse without good reason to live with the accused.

The purpose in abandoning the minor under his custody is to avoid the obligation of taking care of said minor.

Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.

A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age.

ARTICLE 278 - EXPLOITATION OF MINORS

Mode 1.

Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person;

Mode 2.

Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-

Intent to kill cannot be presumed from the death of the child. When there is intent to kill, this article does not apply. The purpose in abandoning the minor must be to avoid the obligation of taking care of said minor

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animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling; Mode 3.

Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings;

Mode 4.

Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child;

Mode 5.

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ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING

Elements (PrEA) (1) Offender is a private person; (2) He enters the dwelling of another; (3) Such entrance is against the latter’s will. DWELLING: This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person; hence, a person’s room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder.

Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.

If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime.

Circumstance qualifying the offense: (1) If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is made in consideration of any price, compensation or promise, the penalty is higher.

If the purpose is not shown and while inside the dwelling he was found by the occupants, one whom he subsequently injured if there was a struggle, the crime committed will be trespass to dwelling and frustrated homicide or physical injuries, or if there was no injury, unjust vexation.

(2) The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.

If the entry is made by a way not intended for entry that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking.

Nature of the Business: this involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs.

“Against the will”: This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed.

Age: Must be below 16 years. Article 278 has no application if minor is 16 years old and above, but the exploitation will be dealt with by RA 7610.

Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance.

If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old.

To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.

If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony.

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Qualified Trespass to Dwelling (Art. 280)

No overt act of the crime intended to be committed: Crime is trespass to dwelling.

Prohibition to enter is Prohibition to enter must express or implied be manifest ARTICLE 282 - GRAVE THREATS

Mode 1.

Examples of trespass by means of intimidation: (1) Firing a revolver in the air by persons attempting to force their way into a house. (2) The flourishing of a bolo against inmates of the house upon gaining an entrance

ARTICLE 281 - OTHER FORMS OF TRESPASS

Elements: (1) Offender enters the closed premises or the fenced estate of another; (2) The entrance is made while either of them is uninhabited; (3) The prohibition to enter is manifest; (4) The trespasser has not secured the permission of the owner or the caretaker thereof. Premises: signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed.

Offender dwelling

private The offender is any person

enters

Act constituting the crime is entering the dwelling against the will of the owner

Making such threat without the offender attaining his purpose;

Mode 3.

Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.

Qualifying Circumstance: If threat was made (1) in writing OR (2) through a middleman.

a Offender enters closed premises or fenced estate

Place entered is inhabited Place entered uninhabited

Mode 2.

Elements: (1) That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. (2) That such wrong amounts to a crime. (3) That the threat is not subject to a condition.

Qualified Trespass vs. Other Forms of Trespass Qualified Trespass to Other Forms of Trespass Dwelling (Art. 281) (Art. 280) a

Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose;

Elements: (1) That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. (2) That such wrong amounts to a crime. (3) That there is a demand for money or that any other condition is imposed, even though not unlawful. (4) That the offender attains his purpose.

In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. [Marzalado v. People]

is

Other Forms of Trespass (Art. 281) the owner or caretaker thereof

Examples of trespass by means of violence: (1) Pushing the door violently and maltreating the occupants after entering. (2) Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence. (3) Wounding by means of a bolo, the owner of the house immediately after entrance

Offender person

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It is essential that there be intimidation.

is

It is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats came to his knowledge.

It is the entering the closed premises or the fenced estate without securing the permission of

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When consummated: As soon as the threats came to the knowledge of the offended party. As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats, came to the knowledge of the offended party.

ARTICLE 284 - BOND FOR GOOD BEHAVIOR

When a person is required to give bail bond: (1) When he threatens another under circumstances mentioned in Art. 282. (2) When he threatens another under circumstances mentioned in Art. 283.

The crime of grave threats is consummated as soon as the threats come to the knowledge of the person threatened.

the the

Bond for Good Behavior distinguished from Bond to Keep the Peace Bond for Good Behavior Bond to Keep the Peace

Threats made in connection with the commission of other crimes are absorbed by the latter.

Applicable only to grave Not made applicable to threats and light threats any particular case

The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the spot, the crime may be robbery with intimidation.

If offender fails to give If the offender fails to give bail, he shall be bond, he shall be sentenced to destierro detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (light felony)

The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained and two degrees lower if the purpose is not attained.

NOT a distinct penalty

A distinct penalty

ARTICLE 285 – OTHER LIGHT THREATS

If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos. In the first two types, if the threat is made in writing or thorough a middleman, the penalty is to be imposed in its maximum period. The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285.If the condition is not proved, it is grave threats of the third type.

Mode 1.

Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful self-defense;

Mode 2.

Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat;

Mode 3.

Orally threatening to do another any harm not constituting a felony.

Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in the threat.

ARTICLE 283 - LIGHT THREATS

Elements: (1) Offender makes a threat to commit a wrong; (2) The wrong does not constitute a crime; (3) There is a demand for money or that other condition is imposed, even though not unlawful; (4) Offender has attained his purpose or, that he has not attained his purpose.

Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats. If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats. ARTICLE 286 - GRAVE COERCIONS

The harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful.

Mode 1.

Blackmailing may be punished under this article. PAGE 192

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

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Mode 2.

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the damage arising to the owner from the interference, is much greater. (Art. 432, Civil Code)

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

Neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. The complainant may have acted reluctantly and with hesitation, but still, it was voluntary. [Lee v. CA]

Elements: (1) A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; (2) The prevention or compulsion be effected by violence, threats or intimidation; and (3) The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.

ARTICLE 287 - LIGHT COERCIONS

Elements: (1) Offender must be a creditor; (2) He seizes anything belonging to his debtor: (3) The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; (4) The purpose of the offender is to apply the same to the payment of the debt.

Purpose of the Law: To enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. Arises only if the act which the offender prevented another to do is not prohibited by law or ordinance.

Deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt.

If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted.

Unjust Vexation: Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.

In case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act.

Unjust Vexation is distinguished from grave coercion by the absence of violence.

A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132).

ARTICLE 288 - OTHER SIMILAR COERCIONS

Mode 1. Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him;

Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his opinions, or casting his vote is liable under Art. 145. The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. It is light coercion under Art. 287.

Elements: (1) Offender is any person, agent or officer of any association or corporation; (2) He or such firm or corporation has employed laborers or employees; (3) He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.

The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to PAGE 193

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Mode 2. Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee.

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(4) Offender is informed of the contents of the papers or letters seized. This is a crime against the security of one’s papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication.

Elements: (1) Offender pays the wages due a laborer or employee employed by him by means of tokens or object; (2) Those tokens or objects are other than the legal tender currency of the Philippines; (3) Such employee or laborer does not expressly request that he be paid by means of tokens or objects.

The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them. The teachers or other persons entrusted with the care and education of minors are included in the exceptions.

General rule: wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other forms alleged to represent legal tender is absolutely prohibited even when expressly requested by the employee. (Section 1, Rule VIII, Book III, Omnibus Rules Implementing the Labor Code)

Distinction from estafa, damage to property, and unjust vexation: (1) If the act had been executed with intent of gain, it would be estafa; (2) If, on the other hand, the purpose was not to defraud, but only to cause damage to another’s, it would merit the qualification of damage to property; (3) If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.

No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person. (Art. 112, Labor Code.) ARTICLE 289 - FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS

Relevant Special Penal Law: RA 4200 (ANTI WIRE TAPPING ACT)

Elements: (1) Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; (2) The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers.

ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE

Elements: (1) Offender is a manager, employee or servant; (2) He learns the secrets of his principal or master in such capacity; (3) He reveals such secrets.

Repealed by the Labor Code. An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages.

CHAPTER III: DISCOVERY AND REVELATION OF SECRETS ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE

Essence of this crime is that the offender learned of the secret in the course of his employment.

Elements: (1) Offender is a private individual or even a public officer not in the exercise of his official function; (2) He seizes the papers or letters of another; (3) The purpose is to discover the secrets of such another person;

He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter.

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(10) Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building (11) Article 304 - Possession of Picklock or Similar Tools (12) Article 305 - Defines False Keys

If the matter pertains to the business of the employer or master, damage is necessary and the agent, employee or servant shall always be liable. Reason: no one has a right to the personal privacy of another.

Chapter 2: Brigandage (1) Article 306 - Who Are Brigands (2) Article 307 - Aiding and Abetting a Band of Brigands

ARTICLE 292 - REVELATION OF INDUSTRIAL SECRETS

Elements: (1) Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; (2) The manufacturing or industrial establishment has a secret of the industry which the offender has learned; (3) Offender reveals such secrets; (4) Prejudice is caused to the owner.

Chapter 3: Theft (1) Article 308 - Who Are Liable for Theft (2) Article 309 – Penalties (3) Article 310 - Qualified Theft (4) Article 311 - Theft of the Property of the National Library and National Museum Chapter 4: Usurpation (1) Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property (2) Article 313 - Altering Boundaries or Landmarks

Secrets must relate to manufacturing processes. The act constituting the crime is revealing the secret of the industry which the offender has learned.

Chapter 5: Culpable Insolvency (1) Article 314 - Fraudulent Insolvency

The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment.

Chapter 6: Swindling (1) Article 315 – Estafa (2) Article 316 - Other Forms of Swindling (3) Article 317 - Swindling of a Minor (4) Article 318 - Other Deceits

Prejudice is an element of the offense.

Title X. Crimes against Property

Chapter 7: Chattel mortgage (1) Article 319 - Removal, Sale, or Pledge of Mortgaged Property Chapter 8: Arson and other Crimes involving Destruction

Chapter I: Robbery in General (1) Article 293 - Who Are Guilty of Robbery (2) Article 294 - With Violence or Intimidation of Persons (3) Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band (4) Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof (5) Article 297 - Attempted and Frustrated Robbery with Homicide (6) Article 298 - Execution of Deeds through Violence or Intimidation (7) Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship (8) Article 300 - Robbery in an Uninhabited Place and by a Band (9) Article 302 -In an Uninhabited Place or Private Building

Chapter 9: Malicious mischief (1) Article 327 - Who Are Responsible (2) Article 328 - Special Cases of Malicious Mischief (3) Article 329 - Other Mischiefs (4) Article 330 - Damage and Obstruction to Means of Communication (5) Article 331 - Destroying or Damaging Statues, Public Monuments or Paintings Chapter 10: Exemption from Criminal Liability (1) Article 332 - Exemption from Criminal Liability in Crimes Against Property. CHAPTER I: ROBBERY IN GENERAL ARTICLE 293 - WHO ARE GUILTY OF ROBBERY

Elements of Robbery in General: (PAUI, V/I/F) PAGE 195

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(1) (2) (3) (4) (5)

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intimidation only

Personal property Belonging to another There be Unlawful taking With Intent to gain Violence against or intimidation of any person OR force upon anything

Acts punished under: (1) When by reason or on occasion of the robbery, Homicide is committed. (Robbery with Homicide) (2) When the robbery is accompanied by Rape or Intentional Mutilation or Arson. (Robbery with Rape, Robbery with Intentional Mutilation, Robbery with Arson) (3) When by reason or on occasion of such robbery, any of the Physical Injuries resulting in insanity, imbecility, impotency, or blindness is inflicted. (4) When by reason or on occasion of robbery, any of the Physical Injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm or a leg or the loss of the use of any such member, or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. (5) If the Violence or Intimidation employed in the commission of the robbery is carried to a degree clearly Unnecessary for the commission of the crime. (6) When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the Physical Injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for labor for more than 30 days (7) If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only.

Prohibitive articles may be the subject of robbery, e.g., opium From the moment the offender gains possession of the object, even without the chance to dispose of the same, the unlawful taking is complete. “Taking”: depriving the offended party of possession of the thing taken with the character of permanency. Intent to gain is presumed from the unlawful taking. It cannot be established by direct evidence, except in case of confession. It is not necessary that violence or intimidation is present from the beginning. The violence or intimidation at any time before asportation is complete, the taking of property is qualified to robbery.

The taking robbery.

Use of force upon things

is

always The taking is robbery only if force is used to: (1) enter the building VALUE OF THE (2) break doors, PROPERTY TAKEN IS wardrobes, chests, or any IMMATERIAL. other kind of locked or sealed furniture or receptacle inside the building; OR (3) force them open outside after taking the same from the building (Art. 299 & 302) The penalty depends on: 1) the result of the violence used (homicide, rape, intentional mutilation, serious physical injuries, less serious or slight physical injuries resulted) and 2) the existence of

offenders carry arms;

ARTICLE 294 - WITH VIOLENCE OR INTIMIDATION OF PERSONS

The property taken must be personal, if real property/right is usurped the crime is usurpation (Art. 312).

Violence against or intimidation of person

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The crime defined in this article is a special complex crime.

If committed in an inhabited house, public building, or edifice devoted to religious worship, the penalty is based on: (1) the value of the thing taken and (2) whether or not the

“On the occasion” and “by reason” mean that homicide or serious physical injuries must be committed in the course or because of the robbery. The violence must be against the person, not upon the thing taken. It must be present before the taking of personal property is complete.

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“Homicide” is used in its generic sense, as to include parricide and murder. Hence, there is no robbery with murder. The crime is still robbery with homicide even if, in the course of the robbery, the person killed was another robber or a bystander.

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Any of these qualifying circumstances must be alleged in the information and proved during the trial. The intimidation with the use of firearm qualifies only robbery on a street, road, highway or alley.

Even if the rape was committed in another place, it is still robbery with rape. When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rape committed on the same occasion of robbery will not increase the penalty.

Art 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par 1 of Art 263. NOTE: the circumstances and applicability of Art 295 are very specific

Absence of intent to gain will make the taking of personal property grave coercion if there is violence used (Art. 286).

ARTICLE 296 - DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF

Outline of Art. 296: When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band.

If both violence/intimidation of persons (294) and force upon things (299/302) co-exist, it will be considered as violation of Art 294 because it is more serious than in Art 299/302.

When any of the arms used in the commission of robbery is not licensed, penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms.

BUT when robbery is under Art 294 par 4 & 5 the penalty is lower than in Art 299 so the complex crime should be imputed for the higher penalty to be imposed without sacrificing the principle that robbery w/ violence against persons is more severe than that w/ force upon things. [Napolis v. CA (1972)]

Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the crime.

When the taking of the victim’s gun was to prevent the victim from retaliating, then the crimes committed are theft and homicide not robbery with homicide. [People v. Millian (2000)] ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND

Requisites for Liability for the acts of the other members: (1) Member of the band. (2) Present at the commission of the robbery. (3) Other members committed an assault. (4) He did not attempt to prevent assault.

Robbery with violence against or intimidation or persons is qualified when it is committed: (1) In an Uninhabited place, or (2) By a Band, or (3) By Attacking a moving train, street car, motor vehicle, or airship, or (4) By Entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or (5) On a Street, road, highway, or alley, AND the intimidation is made with the use of firearms, the offender shall be punished by the maximum periods of the proper penalties in Art. 294.

Conspiracy is presumed when robbery is by band. When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault. When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit.

It cannot be offset by a generic mitigating circumstance. The intimidation with the use of firearm qualifies only robbery on a street, road, highway, or alley. PAGE 197

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But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide.

Special aggravating circumstance of unlicensed firearm is inapplicable to robbery w/ homicide, or robbery with rape, or robbery with physical injuries, committed by a band. [People v. Apduhan]

Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery.

ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE

The article speaks of more than 3 armed malefactors who “takes part in the commission of the robbery” and member of a band “who is present at the commission of a robbery by a band.” Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done.

The penalty is the same, whether robbery is attempted or frustrated.

“Homicide” includes multiple homicides, murder, parricide, or even infanticide.

Robbery with homicide and attempted or frustrated robbery with homicide are special complex crimes, not governed by Art. 48, but by the special provisions of Arts.294 & 297, respectively. There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery.

When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide.

ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION

Elements: (1) Offender has Intent to defraud another (2) Offender Compels him to sign, execute, or deliver any public instrument or document (3) Compulsion is by means of Violence or Intimidation.

Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide.

If the violence resulted in the death of the person to be defrauded, crime is robbery with homicide and shall be penalized under Art 294 par. 1.

Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band.

Art. 298 applies to private or commercial document, but it does not apply if document is void.

There is no crime as “robbery with homicide in band”.

When the offended party is under obligation to sign, execute or deliver the document under the law, it is not robbery but coercion.

Band is only ordinary aggravating circumstance in robbery w/ homicide In order that special aggravating circumstance of unlicensed firearm be appreciated, it is condition sine qua non that offense charged be robbery by a band under Art 295.

BY FORCE UPON THINGS Robbery by the use of force upon things is committed only when either: (1) Offender entered a House or Building by any of the means specified in Art. 299 or Art. 302, or (2) Even if there was no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside.

Pursuant to Art 295, circumstance of a band is qualifying only in robbery under par 3, 4 & 5 of Art 294. Hence, Art. 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 263.

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from that in the other means which is only constructive force. “False keys”: genuine keys stolen from the owner or any keys other than those intended for use in the lock forcibly opened by the offender. The genuine key must be stolen, not taken by force or with intimidation, from the owner.

ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP

Elements of robbery with force upon things under SUBDIVISION (A): (1) Offender entered (a) Inhabited House (b) Public Building (c) Edifice devoted to Religious Worship (2) Entrance was effected by any of the following means: (a) Through an opening Not intended for entrance or egress; (b) By Breaking any wall, roof, or floor, or door or window; (c) By using False keys, picklocks or similar tools; or (d) By using any Fictitious name or pretending the exercise of public authority. (e) That once inside the building, the offender Took personal property belonging to another with intent to gain.

If false key is used to open wardrobe or locked receptacle or drawer or inside door it is only theft Elements of robbery with force upon things under SUBDIVISION (B) of Art. 299: (1) Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it. (2) Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances. (a) Breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or (b) Taking such furniture or objects away to be broken or forced open outside the place of the robbery.

There must be evidence that accused entered the dwelling house or building by any of the means enumerated in subdivision (a). In entering the building, there must be the intent to take personal property.

Entrance into the building by any of the means mentioned in subdivision (a) is not required in robbery under subdivision (b)

“Inhabited house”: any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed.

The term “door” in par. 1, subdivision (b) of Art. 299, refers only to “doors, lids or opening sheets” of furniture or other portable receptacles—not to inside doors of house or building.

“Public building”: every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same.

Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture. It is theft, if the locked or sealed receptacle is not forced open in the building where it is kept or taken from to be broken outside.

Any of the four means described in subdivision (a) must be resorted to enter a house or building, not to get out otherwise it is only theft. The whole body of the culprit must be inside the building to constitute entering.

The penalty depends on the value of property taken and on whether or not offender carries arm. Arms carried must not be used to intimidate. Liability for carrying arms is extended to all those who participated in the robbery, including those without arms.

Illustration: If the culprit had entered the house through an open door, and the owner, not knowing that the culprit was inside, closed and locked the door from the outside and left, and the culprit, after taking personal property in the house, went out through the window, it is only theft, not robbery.

The provision punishes more severely the robbery in a house used as a dwelling than that committed in an uninhabited place, because of the possibility that the inhabitants in the former might suffer bodily harm during the robbery.

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or (e) A Closed or sealed receptacle was removed, even if the same be broken open elsewhere. (f) With intent to gain, the offender took therefrom personal property belonging to another.

ARTICLE 301 - WHAT IS AN UNINHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: Even if the occupant was absent during the robbery, the place is still inhabited if the place was ordinarily inhabited and intended as a dwelling.

“Building”: includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car ad (b) warehouse.

“Dependencies”: all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole (Art. 301, par. 2).

Entrance through an opening not intended for entrance or egress is not necessary, if there is breaking of wardrobe, chest, or sealed or closed furniture or receptacle, or removal thereof to be broken open elsewhere.

Requisites: (1) Contiguous to the building; (2) Interior entrance connected therewith; (3) Form part of the whole.

Breaking padlock is use of force upon things.

Orchards and lands used for cultivation or production are not included in the term “dependencies” (Art. 301, par. 3).

Use of fictitious name or pretending the exercise of public authorities is not covered under this article. A receptacle is a container, which must be “closed” or “sealed”.

ARTICLE 300 – ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

Robbery in an inhabited house, public building or edifice to religious worship is qualified when committed by a band and located in an uninhabited place.

Penalty is based only on value of property taken. Robbery in a store Punishable under Art. 299

See discussion on Art. 296 for definition of “band.” To qualify Robbery w/ force upon things (Art 299) It must be committed in uninhabited place AND by a band (Art 300) ARTICLE 302 BUILDING

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Punishable under Art. 302

If the store is used as a dwelling, the robbery committed therein would be considered as committed in an inhabited house (People v Suarez)

If the store was not actually occupied at the time of the robbery and was not used as a dwelling, since the owner lived in a separate house, the robbery committed therein (People v If the store is located on Silvestre) the ground floor of the house belonging to the owner, having an interior entrance connected therewith, it is a dependency of an inhabited house and the robbery committed therein (US v Tapan).

To qualify Robbery w/ violence against or intimidation It must be committed in an uninhabited place OR by a band (Art. 295)

- IN AN UNINHABITED PLACE OR PRIVATE

Elements: (1) Offender entered an Uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. (2) That any of the following circumstances was present: (a) Entrance was effected through an opening Not intended for entrance or egress; (b) A Wall, roof, floor, or outside door or window was broken (c) Entrance was effected through the use of False keys, picklocks or other similar tools; (d) A Door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken;

ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN INHABITED PLACE OR PRIVATE BUILDING

The penalty is one degree lower only when robbery is committed by use of force upon things, without intimidation or violence against a person.

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Cereals are seedlings which are the immediate product of the soil. The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers. ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR TOOLS

Brigandage

Robbery in band

Purpose

(1) Commit robbery in a highway (2) Kidnap to extort or get ransom (3) Any other purpose to be achieved by means of force or violence

Commit robbery, and not necessarily in a highway

Proof

Mere formation of a band for any of the above purposes is sufficient. There is no requirement that the brigands consummate the crime.

It is necessary to prove that the band actually committed the robbery. Conspiracy to commit robbery is not punishable.

Elements: (1) Offender has in his possession Picklocks or similar tools; (2) Such picklock or similar tools are especially Adopted to the commission of robbery; (3) Offender does Not have lawful cause for such possession. ARTICLE 305 - DEFINES FALSE KEYS

TO INCLUDE THE FOLLOWING: (1) Tools mentioned in Article 304; (2) Genuine keys Stolen from the owner; (3) Any key other than those intended by the owner for Use in the lock forcibly opened by the offender. CHAPTER 2: BRIGANDAGE (ARTICLES 306-307) ARTICLE 306 - WHO ARE BRIGANDS

Elements of Brigandage: (1) There be at least 4 armed persons (2) They Formed a band of robbers (3) The Purpose is any of the following: (a) To commit Robbery in the highway; or (b) To Kidnap for the purpose of extortion or to obtain ransom; or (c) To Attain by means of force and violence any other purpose.

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ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS

Elements: (1) There is a Band of brigands (2) Offender Knows the band to be of brigands (3) Offender Does any of the following acts: (a) He in any manner Aids, abets or protects such band of brigands; or (b) He gives them Information of the movements of the police or other peace officers; or (4) He Acquires or receives the property taken by such brigands.

Presumption of law as to brigandage: all are presumed highway robbers or brigands, if any of them carries unlicensed firearm. The arms carried may be any deadly weapon.

It is presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.

The main object of the law is to prevent the formation of band of robbers.

Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice.

The term “highway” includes city streets. The following must be proved: (1) Organization of more than 3 armed persons forming a band of robbers (2) Purpose of the band is any of those enumerated in Art. 306. (3) That they went upon the highway or roamed upon the country for that purpose. (4) That the accused is a member of such band.

See Special Law: PD 532 Anti-Piracy And AntiHighway Robbery It is necessary to prove that the intention and purpose of the accused was to commit robbery indiscriminately and such robbery is committed on any Philippine Highway. [People v. Pulusan (1998)]

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In accordance with the definition in Art 308, there is no frustrated theft. The offender has either complete control of the property (consummated) or without (attempted). Intent to gain is presumed from the unlawful taking of personal property belonging to another. [Valenzuela v. People (2007)]

CHAPTER 3 THEFT ARTICLE 308 - WHO ARE LIABLE FOR THEFT

Elements of Theft: (1) Taking of personal property (2) That Belongs to another (3) With Intent to gain. (4) Without the Consent of the owner. (5) Accomplished Without the use of violence against or intimidation of persons or force upon things.

If a person takes property of another, believing it to be his own, presumption of intent to gain is rebutted. Hence, he is not guilty of theft. If one takes personal property openly and avowedly under claim of title made in good faith, he is not guilty of theft even though claim of ownership is later found to be untenable.

Theft: committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

If possession was only material or physical, the crime is THEFT. If possession was juridical, crime is ESTAFA. Selling share of a partner or co-owner is not theft.

Persons liable for theft: (1) Those who, (a) with intent to gain, (b) without violence against or intimidation of persons nor force upon things, (c) take, (d) personal property, (e) of another, (f) without the latter’s consent.

Actual or real gain is not necessary in theft. The consent contemplated in this article refers to consent freely given, and not mere lack of opposition by owner of the property taken. It is not robbery when violence is for a reason entirely foreign to the fact of taking.

(2) Those who, (a) having found lost property, (b) fail to deliver the same to the local authorities or to its owner.

Gulinao shot Dr. Chua and left. Then he went back & took Dr. Chua’s diamond ring. The crime was Theft and not robbery. Circumstances show that the taking was merely an afterthought. Violence used in killing Dr. Chua had no bearing on the taking of the ring.[People v. Gulinao, (1989)]

(3) Those who, (a) after having maliciously damaged the property of another, (b) remove or make use of the fruits or object of the damage caused by them.

Properties were taken after accused has already carried out his primary criminal intent of killing the victim. Considering that the victim was already heavily wounded when his properties were taken, there was no need to employ violence against or intimidation against his person. Hence, accused can only be held guilty of the separate offense of theft.[People vs Basao (1999)]

(4) Those who, (a) enter an inclosed estate or field where (b) trespass is forbidden or which belongs to another and, without the consent of its owner, (c) hunt or fish upon the same or gather fruits, cereals, or other forest or farm products.

One in possession of part of recently stolen property is presumed to be thief of all.

The theft is consummated & taking completed once the culprit is able to place the thing taken under his control, and in such a situation that he could dispose of it at once.

“Lost property”: embraces loss by stealing or by act of the owner or by a person other than the owner, or through some casual occurrence. It is necessary to prove the following in order to establish theft by failure to deliver or return lost property:

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(1) Time of the seizure of the thing (2) It was a lost property belonging to another; and (3) That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so.

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Theft by domestic servant is always qualified. There’s no need to prove grave abuse of discretion. The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party that has created a high degree of confidence between them, which the accused abused.

The law does not require knowledge of the owner of the property. Elements of hunting, fishing or gathering fruits, etc., in enclosed estate: (1) That there is an enclosed estate or a field, where trespass is forbidden or which belongs to another (2) Offender enters the same (3) Offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products in the estate or field; and (4) That the hunting or fishing or gathering of products is without the consent of the owner.

Theft of any material, spare part, product or article by employees and laborers is heavily punished under PD 133. “Motor vehicle”: all vehicles propelled by power, other than muscular power. Theft of motor vehicle may now fall under the anti-carnapping law. When the purpose of taking the car is to destroy by burning it, the crime is arson.

ARTICLE 309 - PENALTIES

If a private individual took a letter containing postal money order it is qualified theft. If it was the postmaster, to whom the letter was delivered, the crime would be infidelity in the custody of documents.

The basis of the penalty in theft is (1) the value of the thing stolen, or (2) the value and nature of the property taken, or (3) the circumstances that impelled the culprit to commit the crime.

Regarding the theft of coconuts and fish, what matters is not the execution, but the location where it is taken. It should be in the plantation or in the fishpond.

If there is no evidence of the value of the property stolen, the court should impose the minimum penalty corresponding to theft involving the value of P5.00. The court may also take judicial notice of its value in the proper cases.

RA 6539: ANTI-CARNAPPING LAW

Carnapping: taking, with intent to gain, of motor vehicle belonging to another without the latter’s consent or by means of violence against or intimidation of persons, or by force upon things (Izon v. People, 1981)

ARTICLE 310 - QUALIFIED THEFT

Theft is qualified if: (1) Committed by a Domestic servant (2) Committed with Grave abuse of confidence (3) The property stolen is (a) motor vehicle, (b) mail matter, or (c) large cattle

Motor Vehicle: any vehicle which is motorized using the streets which are public, not exclusively for private use (Boado, Comprehensive Reviewer in Criminal Law)

The property stolen consists of coconuts taken from the premises of a: (1) plantation (2) The property stolen is fish taken from a fishpond or fishery (3) The property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

PD 533 ANTI-CATTLE RUSTLING LAW

Cattle rustling: taking away by means, methods or schemes, without the consent of the owner/raiser, of any large cattle whether or not for profit, or whether committed with or without violence against or intimidation of person or force upon things. It includes killing of large cattle, taking its meat or hide without the consent of owner/raiser. Large cattle: include cow, carabao, horse, mule, ass, other domesticated member of bovine family. A goat is not included because it is not large (Boado, Comprehensive Reviewer in Criminal Law)

The penalty for qualified theft is 2 degrees higher.

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Presumption: Every person in possession of large cattle shall upon demand by competent authorities exhibit required documents. Failure to do so is prima facie evidence that large cattle in possession are fruits of crime of cattle rustling

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Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. [People v. Dizon-Pamintuan] Robbery/theft and fencing are separate and distinct offenses.

Killing of owner is absorbed in cattle rustling (Boado, Comprehensive Reviewer in Criminal Law)

ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM

Considering that the gravamen of the crime is the taking or killing of large cattle or taking its meat or hide without the consent of the owner or raiser, conviction for the same need only be supported by the fact of taking without the cattle owner’s consent. There is a disputable presumption that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act. [Ernesto Pil-ey vs. People (2007)]

Theft of property of the National Museum and National Library has a fixed penalty regardless of its value. But if it was with grave abuse of confidence, the penalty for qualified theft shall be imposed. CHAPTER 4: USURPATION ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY

PD 704: ILLEGAL FISHING

Acts punishable under Art. 312: (1) Taking possession of any real property belonging to another by means of violence against or intimidation of persons (2) Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.

Prima facie presumption of illegal fishing when: (1) Explosive, obnoxious or poisonous substance or equipment or device for electric fishing are found in the fishing boat or in the possession of fisherman; or (2) When fish caught with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat

Elements: (1) Offender takes possession of any real property OR usurps any real rights in property (2) Real property or real rights belong to another (3) Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. (4) There is intent to gain.

PD 1612: ANTI-FENCING LAW Fencing: (1) the act of any person who, (2) with intent to gain for himself or for another, (3) shall buy, receive, keep, acquire, conceal, sell, or dispose of, or shall buy and sell or in any other manner deal in (4) any article, item, object, or anything of value (5) which he knows, or should be known to him, (6) to have been derived from the proceeds of the crime of robbery or theft.

If no violence or intimidation only civil liability exists. Violence or intimidation must be the means used in occupying real property or in usurping real rights. Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property.

Elements: (1) Robbery or theft has been committed. (2) The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object, or anything of value, which has been derived from the proceeds of the said crime. (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. (4) There is, on the part of the accused, intent to gain for himself or another.

Art. 312 does not apply to a case of open defiance of the writ of execution issued in the forcible entry case. Criminal action for usurpation of real property is not a bar to civil action for forcible entry.

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Usurpation

Theft or Robbery

Act

Occupation or Usurpation

What is Taken

Real property or Personal Real Right property

Intent

To Gain

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Art 314

Insolvency law

No need for insolvency Crime should be proceedings. committed after the institution of insolvency No need to be adjudged proceedings bankrupt or insolvent

Taking or asportation

CHAPTER 6: SWINDLING AND OTHER DECEITS To Gain

ARTICLE 315 - ESTAFA

Elements of Estafa in General: (1) That the accused defrauded another (a) by abuse of confidence; or (b) by means of deceit; and (2) That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. (3) Through— (a) With unfaithfulness or abuse of confidence (315 par. 1(a) (b) (c)) (b) Estafa by means of fraudulent acts (315 Par. 2(A) (B) (C)(D) (E) ; BP22): (c) Through other fraudulent means (315 par 3(a) (b) (c) )

RA 947 punishes entering or occupying public agricultural land including lands granted to private individuals. ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS

Elements: (1) That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. (2) That the offender alters said boundary marks. Provision does not require intent to gain. The word “alter” may include: (1) destruction of stone monument (2) taking it to another place (3) removing a fence

With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b) (c))

CHAPTER 5: CULPABLE INSOLVENCY

Elements: (1) Offender has an Onerous obligation to deliver something of value. (2) That he Alters its substance, quantity, or quality (3) That Damage or prejudice is caused to another.

Par 1(a): Altering substance, quantity or quality of object subject of obligation to deliver

ARTICLE 314 - FRAUDULENT INSOLVENCY

Elements: (1) That the offender is a debtor; that is, he has obligations due and payable (2) That he absconds with his property (3) That there be prejudice to his creditors.

Deceit is NOT an essential element of estafa with abuse of confidence. Damage or prejudice must be capable of estimation, because it is the basis of the penalty.

Actual prejudice, not intention alone, is required. Even if the debtor disposes of his property, unless it is shown that it has actually prejudiced his creditor, conviction will not lie.

Delivery of anything of value must be “by virtue of an onerous obligation to do so”.

Fraudulent concealment of property is not sufficient if the debtor has some property with which to satisfy his obligation.

When the fraud committed consists in the adulteration or mixing of some extraneous substance in an article of food so as to lower its quantity, it may be a violation of the Pure Food Law.

“Abscond”: does not require that the debtor should depart and physically conceal his property. Real property could be the subject matter of Art. 314.

It’s not estafa if the thing delivered is not acceptable to the complainant when there is no agreement as to its quality.

The person prejudiced must be creditor of the offender. PAGE 205

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Estafa may arise even if thing delivered is not subject of lawful commerce, such as opium.

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Applicable Civil Code provisions: (1) Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof. (2) Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract.

Par.1(b): Misappropriation and Conversion Elements: (1) That Money, goods, or other personal property be received by the offender in trust, or in commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) There be Misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (3) That such misappropriation or conversion or denial is to the Prejudice of another; and (4) That there is a demand made by the offended party to the offender.

In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the thing received must be returned if there is an obligation to return it. If no obligation to return there is only civil liability. No estafa when: (1) Transaction sale fails. There is no estafa if the accused refused to return the advance payment. (2) The money or personal property received by accused is not to be used for a particular purpose or to be returned. (3) Thing received under a contract of sale on credit

The 4th element is not necessary when there is evidence of misappropriation of goods by the defendant.

Payment by students to the school for the value of materials broken is not mere deposit.

Check is included in the word “money”. Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him.

Novation of contract of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract.

The offender acquires both physical possession and juridical possession when the thing received by the offender from the offended party (1) in trust, or (2) on commission, or (3) for administration,

He exerted all efforts to retrieve dump truck, albeit belatedly and to no avail. His ineptitude should not be confused with criminal intent. Criminal intent is required for the conviction of Estafa. Earnest effort to comply with obligation is a defense against estafa. [Manahan vs CA (1996)]

“Juridical possession”: means a possession which gives the transferee a right over the thing which he may invoke even as against the owner. When the delivery of a chattel does not transfer juridical possession/title, it is presumed that the possession/title of the thing remain w/ owner.

3 Ways Of Committing Estafa With Abuse Of Confidence Under Art. 315 Par. (B): (1) Misappropriating the thing received. (2) Converting the thing received. (3) Denying that the thing was received.

Failure to turn over to the bank the proceeds of sale of goods covered by trust receipts is estafa.

“Misappropriating”: means to something for one's own benefit.

The phrase “or under any obligation involving the duty to make delivery of, or to return the same”, includes quasi-contracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to accused ownership of the thing.

“Converting”: Using or disposing of another’s property as if it were one’s own.

When ownership is transferred to recipient, his failure to return it results in civil liability only.

The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute estafa (US v Torres).

own,

to

take

“Conversion”: presupposes that the thing has been devoted to a purpose or use different from that agreed upon.

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the offender receives the thing under a lawful transaction.

The law does not distinguish between temporary and permanent misappropriations.

Demand is not required by law, but it may be necessary, because failure to account upon demand is circumstantial evidence of misappropriation. Presumption arises only when the explanation of the accused is absolutely devoid of merit.

No estafa under Art. 315 par (b) when there is neither misappropriation nor conversion. Right of agent to deduct commission from amounts (1) If agent is authorized to retain his commission out of the amounts he collected, there is no estafa. (2) Otherwise he is guilty of estafa, because his right to commission does not make the agent a coowner of money

The mere failure to return the thing received for safekeeping or under any other obligation w/ the duty to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa.

3rd element of estafa with abuse of confidence is that the conversion, or denial by offender resulted in the prejudice of the offended party.

There is no estafa through negligence. The gravity of the crime of estafa is based on the amount not returned before the institution of the criminal action.

“To the prejudice of another”: not necessarily of the owner of the property.

Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects a return of the thing to him.

General rule: Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued. Failure of partner to account for partnership funds may give rise to civil obligation only, not estafa.

General rule: When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa.

Exception: when a partner misappropriates the share of another partner in the profits, the act constitutes estafa.

Exception: When the offender received the thing from the offended party, with the obligation to deliver it to a third person and, instead of doing so, misappropriated it to the prejudice of the owner, the crime committed is qualified theft.

A co-owner is not liable for estafa, but he is liable if, after the termination of the co-ownership, he misappropriates the thing which has become the exclusive property of the other. Estafa with abuse of confidence

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Sale of thing received to be pledged for owner is theft, when the intent to appropriate existed at the time it was received.

Theft

Estafa with abuse of confidence

With juridical possession Only with physical / of thing misappropriated material possession of thing misappropriated

Malversation

Entrusted with funds or property

Offender receives the Offender takes the thing thing from the victim

Both are continuing offenses Funds or property are always private

Funds or property usually public

But when the money or property had been received by a partner for specific purpose and he misappropriated it, there is estafa.

Offender is a private Offender is a public officer individual or public officer accountable for public not accountable for public funds or property funds or property

Under the 4th element of estafa with abuse of confidence demand may be required.

Committed by misappropriating, converting or denying having received money, other personal property

In estafa by means of deceit, demand is not needed, because the offender obtains the thing wrongfully from the start. In estafa with abuse of confidence,

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In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts. The fraudulent acts must be performed prior to or simultaneously with the commission of the fraud.

Malversation

There is no estafa through There can be negligence. malversation through abandonment or negligence.

The offender must be able to obtain something from the offended party because of the fraudulent acts.

When in prosecution for malversation the public officer is acquitted, the private individual in conspiracy w/ him may be held liable for estafa, depending on the nature of the funds.

Knowledge of criminal intent of the principal is essential to be convicted as an accomplice in Estafa through falsification of commercial document. There must be knowing assistance in the execution of the offense. [Abejuela vs People (1991)]

Misappropriation of firearms received by a police (1) ESTAFA: if it is not involved in the commission of a crime (2) MALVERSATION: if it is involved in the commission of a crime. (3) Par.1(c):

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In the case where a tenant-landowner relationship exists between the parties, the jurisdiction for the prosecution of the crime Estafa is not divested from the RTC; though the matter before us apparently presents an agrarian dispute, the RTC cannot shirk from its duty to adjudicate on the merits a criminal case initially filed before it, based on the law and evidence presented, in order to determine whether an accused is guilty beyond reasonable doubt of the crime charged.

Taking advantage of signature in blank

Elements: (1) Paper with the signature of the offended party be in Blank. (2) Offended party should have Delivered it to the offender. (3) That above the signature of the offended party a Document is written by the offender without authority to do so. (4) That the document so written Creates a liability of, or causes damage to, the offended party or any third person.

In a tenant-landowner relationship, it was incumbent upon the tenant to hold in trust and, eventually, account for the share in the harvest appertaining to the landowner, failing which the tenant could be held liable for misappropriation. As correctly pointed out by the respondents, share tenancy has been outlawed for being contrary to public policy as early as 1963, with the passage of R.A. 3844. What prevails today, under R.A. 6657, is agricultural leasehold tenancy relationship, and all instances of share tenancy have been automatically converted into leasehold tenancy. In such a relationship, the tenant’s obligation is simply to pay rentals, not to deliver the landowner’s share.

Estafa by Means of False Pretenses or Fraudulent Acts (315 par. 2(a) (b) (c) (d) (e); BP22): Elements of estafa by means of deceit: (1) There must be a False pretense, fraudulent act or fraudulent means. (2) That such false pretense, fraudulent act or fraudulent means must be made or executed Prior to or Simultaneously with the commission of the fraud. (3) Offended party must have Relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. (4) As a result thereof, the offended party Suffered damage.

Given this dispensation, the petitioner’s allegation that the respondents misappropriated the landowner’s share of the harvest – as contained in the information – is untenable. Accordingly, the respondents cannot be held liable under Article 315, paragraph 4, No. 1(b) of the Revised Penal Code. [People v. Vanzuela (2008)] It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa. The reason, therefore, is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se.

The acts must be fraudulent. Acts must be founded on, deceit, trick, or cheat, and such must be made prior to or simultaneously with the commission of the fraud.

In the first, the criminal intent of the accused is not necessary for conviction. In the second, such intent is

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imperative. Petitioner’s claim that she did not represent herself as a licensed recruiter, but that she merely tried to help the complainants secure a tourist visa could not make her less guilty of illegal recruitment, it being enough that she gave the impression of having had the authority to recruit workers for deployment abroad; consequently she is also held liable for the violation of Estafa under Article 315(2)(a). [Lapasaran v. People (2009)]

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Manipulation of scale is punished under the Revised Administrative Code Par 2(b):

by altering the quality, fineness or weight of anything pertaining to art or business Par. 2(c): by pretending to have bribed any government employee Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money.

Par 2(a): Using fictitious name or false pretenses at power, influence… or other similar deceits

Par 2(d): By postdating a check or issuing a bouncing check

Ways of committing the offense: (1) By using fictitious name; (2) By falsely pretending to possess: (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions; (3) By means of other similar deceits..

Elements: (1) Offender Postdated a check, or issued a check in payment of an obligation; (2) Such postdating or issuing a check was done when the offender had No funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The check must be genuine, and not falsified.

For estafa under Art. 315 par. 2(a), it is indispensable that the false statement or fraudulent representation of the accused, (1) be made prior to, or, at least simultaneously with, (2) the delivery of the thing by the complainant. It is essential that such false statement or fraudulent representation constitutes the cause or only motive which induced the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for the class of estafa.

The check must be postdated or for an obligation contracted at the time of the issuance and delivery of the check and not for pre-existing obligation. Exception: (1) When postdated checks are issued and intended by the parties only as promissory notes (2) When the check is issued by a guarantor The accused must be able to obtain something from the offended party by means of the check he issues and delivers. The mere fact that the drawer had insufficient or no funds in the bank to cover the check at the time he postdated or issued a check, is sufficient to make him liable for estafa.

A creditor who deceived his debtor is liable for estafa. In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. Without such proof, criminal intent to deceive cannot be inferred. Fraud must be proved with clear and positive evidence.

1

RA 4885 deleted the phrase “the offender knowing at the time he had no funds in the bank”:

1

AN ACT TO AMEND SECTION TWO, PARAGRAPH (d), ARTICLE THREE HUNDRED FIFTEEN OF ACT NUMBERED THIRTY-EIGHT HUNDRED AND FIFTEEN, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE. (re: issuance of checks.) Section 1. Section Two, Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight hundred and fifteen is hereby amended to read as follows: "Sec. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

Where commission salesman took back the machines from prospective customers and misappropriated them, it is theft, not estafa. Estafa through false pretenses made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification. PAGE 209

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(1) the failure of the drawer to deposit the amount needed to cover his check (2) within 3 days from receipt of notice of dishonor of check for lack or insufficiency of funds (3) shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

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Estafa Through Other Fraudulent Means (315 Par 3 (a) (b) (c)) Par 3 (a):

By inducing another, through deceit, to sign any document

Elements: (1) Offender Induced the offended party to sign a document. (2) That deceit be Employed to make him sign the document. (3) Offended party Personally signed the document. (4) That Prejudice be caused.

Good faith is a defense in a charge of estafa by postdating or issuing a check. One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in the purchase of goods, is guilty of estafa. [People v. Isleta]

Offender must induce the offended party to sign the document. If offended party is willing from the start to sign the document, because the contents are different from those which the offended told the accused to state in the document, the crime is falsification.

2

PD 818 applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa. [People v Villaraza, 81 SCRA 95] Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315.

There can be no conviction for estafa in the absence of proof that defendant made statements tending to mislead complainant.

Estafa by issuing a bad check is a continuing crime.

Par.3 (b): By resorting to some fraudulent practice to ensure success in a gambling game

See Special Law: BP 22 (Anti-Bouncing Checks Law)

Par.3 (c): By removing, concealing or destroying any court record, office files, document or any other papers

"(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act." Section 2. This Act shall take effect upon its approval. Approved: June 17, 1967 2 AMENDING ARTICLE 315 OF THE REVISED PENAL CODE BY INCREASING THE PENALTIES FOR ESTAFA COMMITTED BY MEANS OF BOUNCING CHECKS Section 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; 2nd. The penalty of prision mayor in its maximum period, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of prision mayor in its medium period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and, 4th. By prision mayor in its maximum period, if such amount does not exceed 200 pesos. Section 2. This decree shall take effect immediately.

Elements: (1) That there be court Record, office files, documents or any other papers If there is no malicious intent to defraud, the destruction of court record is malicious mischief. Elements of deceit and abuse of confidence may coexist. If there is neither deceit nor abuse of confidence, it’s not estafa, even if there is damage. There is only civil liability. Deceit through Fraudulent Means Offender is a private person OR a public person not entrusted w/ documents

Infidelity in Custody of Documents Offender is a public person entrusted with the documents

There is intent to defraud Intent to defraud is not required

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Double jeopardy does not apply because RPC is a distinct crime from BP 22. Deceit and damage are essential elements of RPC, which are not required in BP 22. [Nierras vs Dacuycuy (1990)]

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encumbrance, although such encumbrance be not recorded Elements: (1) That the thing disposed of be Real property. (2) Offender Knew that the real property was encumbered, whether the encumbrance is recorded or not. (3) There must be Express representation by the offender that the real property is free from encumbrance. (4) Act of disposing of the real property be made to the Damage of another.

The element of damage or prejudice capable of pecuniary estimation may consist in: (1) The offended party being deprived of his money or property, as result of the fraud; (2) Disturbance in property right; or (3) Temporary prejudice Payment subsequent to the commission of estafa does not extinguish criminal liability or reduce the penalty.

Act constituting the offense is disposing of the real property representing that it is free from encumbrance.

The crime of estafa is not obliterated by acceptance of promissory note.

“Dispose”: includes encumbering or mortgaging.

A private person who procures a loan by means of deceit through a falsified public document of mortgage, but paid loan within the period agreed upon, is not guilty of estafa but only falsification of a public document.

“Encumbrance”: includes every right or interest in the land which exists in favor of third persons. The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the loan, Art. 316 par. 2 is not applicable.

Accused cannot be convicted of estafa with abuse of confidence if charged w/ estafa by means of deceit ARTICLE 316 - OTHER FORMS OF SWINDLING AND DECEITS

Par 1. By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same

Usurious loan with equitable mortgage is not an encumbrance on the property. If 3rd element not established, there is no crime.

Elements: (1) That the thing be Immovable, such as a parcel of land or a building. (2) Offender who is not the owner of said property should Represent that he is the owner thereof. (3) Offender should have Executed an act of ownership (selling, encumbering or mortgaging the real property). (4) Act be made to Prejudice of the owner or a third person.

There must be damage caused. It is not necessary that act prejudice the owner of the land. The omitted phrase “as free from encumbrance” in par 2 of Art. 316 is the basis of the ruling that silence as to such encumbrance does not involve a crime. Par. 3. By wrongfully taking by the owner of his personal property from its lawful possessor

The thing disposed of must be real property. If it’s chattel, crime is Estafa.

Elements: (1) Offender is the Owner of personal property. (2) Said property is in the Lawful possession of another. (3) Offender wrongfully takes it from its lawful possessor. (4) Prejudice is thereby caused to the lawful possessor or third person.

There must be existing real property. Even if the deceit is practiced against the second purchaser but damage is incurred by the first purchaser, there is violation of par.1 of Art. 316. Since the penalty is based on the “value of the damage” there must be actual damage caused.

Offender must wrongfully take the personal property from the lawful possessor. Wrongfully take does not include the use of violence, intimidation.

Par. 2. By disposing of real property as free from

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If the thing is taken by means of violence, without intent to gain, it is not estafa, but grave coercion.

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ARTICLE 317 - SWINDLING OF A MINOR

Elements: (1) That the offender Takes advantage of the inexperience or emotions or feelings of a minor. (2) That he induces such minor (a) to Assume an obligation, or (b) to Give release, or (c) to Execute a transfer of any property right. (3) That the consideration is (a) some Loan of money, (b) Credit, or (c) Other Personal property. (4) That the transaction is to the Detriment of such minor.

If the owner took the personal property from its lawful possessor without the latter’s knowledge and later charged him with the value of the property, the crime is theft. If there is intent to charge the bailee with its value, the crime is robbery. [US v Albao] Par. 4. By executing any fictitious contract to the prejudice of another. Illustration: A person who simulates a conveyance of his property to another, to defraud his creditors. If the conveyance is real and not simulated, the crime is fraudulent insolvency.

Real property is not included because only money, credit and personal property are enumerated, and because a minor cannot convey real property without judicial authority.

Par. 5. By accepting any compensation for services not rendered or for labor not performed

ARTICLE 318 - OTHER DECEITS

Elements: (1) Accepting a compensation given to accused for service not rendered (2) Malicious failure to return the compensation wrongfully received (fraud).

Other deceits are: (1) By Defrauding or damaging another by any other deceit not mentioned in the preceding articles. (2) By Interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other manner, for profit or gain.

There must be fraud. Otherwise, it will only be solutio indebiti, with civil obligation to return the wrong payment. If the money in payment of a debt was delivered to a wrong person, Art. 316 par 5 is not applicable.

Any other kind of conceivable deceit may fall under this article. As in other cases of estafa, damage to the offended party is required.

In case the person who received it later refused or failed to return it to the owner of the money, Art. 315 subdivision 1(b) is applicable.

The deceits in this article include false pretenses and fraudulent acts. Chattel Mortgage The object of the Chattel Mortgage Law is to give the necessary sanction to the statute, so that mortgage debtors may be deterred from violating its provisions and mortgage creditors may be protected against loss of inconvenience from wrongful removal or sale of mortgaged property.

Par. 6. By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfilment of his obligation as surety Elements: (1) Offender is a Surety in a bond given in a criminal or civil action. (2) He Guaranteed the fulfillment of such obligation with his real property or properties. (3) He Sells, mortgages, or, in any other manner encumbers said real property. (4) That such sale, mortgage, or encumbrance is (a) Without express authority from the court, or (b) Made Before the cancellation of his bond, or (c) Before being relieved from the obligation contracted by him.

CHAPTER 7: CHATTEL MORTGAGE ARTICLE 319 - REMOVAL, SALE, MORTGAGED PROPERTY

OR PLEDGE OF

Acts punishable under Art. 319: (1) By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or

There must be damage caused under Art. 316.

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The consent of the mortgagee must be (1) in writing, (2) on the back of the mortgage, and (3) noted on the record thereof in the office of the register of deeds.

assigns. (2) By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located.

Damage is NOT essential. Chattel mortgage may give rise to estafa by means of deceit.

Chattel mortgage must be valid and subsisting. If chattel mortgage does not contain an affidavit of good faith and is not registered, it is void and cannot be prosecuted under Art 319

Art 319

Art 316 Estafa

In both there is selling of a mortgaged property.

Elements of knowingly removing mortgaged personal property: (1) Personal property is mortgaged under the Chatter Mortgage Law. (2) Offender knows that such property is so mortgaged. (3) He removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage. (4) That the removal is permanent. (5) That there is no written consent of the mortgagee or his executors, administrators or assigns to such removal.

Personal property

Property involved is real property(Art. 316 par 2)

Committed by the mere failure to obtain consent of the mortgagee in writing, even if offender should inform the purchaser that the thing sold is mortgaged

Committed by selling real property mortgaged as free, even though the vendor may have obtained the consent of the mortgagee in writing.

Purpose: to protect the Purpose: to protect the mortgagee purchaser (1st or 2nd) CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION

A person other than the mortgagor who removed the property to another province, knowing it to be mortgaged, may be liable. The removal of the mortgaged personal property must be coupled with intent to defraud.

Kinds of Arson: (1) Arson (PD 1613, Sec. 1) (2) Destructive arson (Art. 320, as amended by RA 7659) (3) Other cases of arson (Sec. 3, PD 1613)

No felonious intent if transfer of personal property is due to change of residence.

Attempted, Frustrated, and Consummated Arson Attempted arson: A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he about to light a match to set fire to the rags, he is discovered by another who chases him away. In attempted arson, it is not necessary that there be a fire.

If the mortgagee opted to file for collection, not foreclosure, abandoning the mortgage as basis for relief, the removal of property to another province is not a violation of Art 319 par1. In estafa, the property involved is real property. In sale of mortgaged property, it is personal property. Elements of selling or pledging personal property already pledged: (1) That personal property is already pledged under the terms of the Chattel Mortgage Law. (2) That the offender, who is the mortgagor of such property, sells or pledges the same or any part thereof. (3) That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

Frustrated arson: If that person is able to light or set fire to the rags, but the fire was put out before any part of the building was burned. Consummated arson: If before the fire was put out, it had burned a part of the building. If the property burned is an inhabited house or dwelling, it is not required that the house be occupied by one or more persons and the offender knew it when the house was burned. PAGE 213

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(3) Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel (4) Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; (5) Any rice mill, sugar mill, cane mill or mill central (6) Any railway or bus station, airport, wharf or warehouse

No complex crime of arson with homicide. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. Homicide is absorbed. Any of 7 circumstances in Sec. 6 of PD 1613 is sufficient to establish fact of arson if unexplained.

Article 320, RPC, as amended, with respect to destructive arson, and the provisions of PD 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether destructive or otherwise, where death results therefrom. The raison d’etre is that arson is itself the end and death is simply the consequence.

How is the crime of Arson proved? In the prosecution for Arson, proof of the crime charged is complete where the evidence establishes: 1. the corpus delicti, i.e., a fire because of criminal agency; and 2. the identity of the defendant as the one responsible for the crime.

In cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated – whether arson, murder, or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply Arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is Murder only; and lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as means to cover up the killing, then there are two separate and distinct crimes committed – Homicide/Murder and Arson

In Arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. [Gonzales, Jr. v. People, GR No. 159950, Feb. 12, 2007] PD 1613, §1. DESTRUCTIVE ARSON

SEC. 2. Destructive Arson—The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. (2) Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. (3) Any church or place of worship or other building where people usually assemble. (4) Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. (5) Any building where evidence is kept for use in any legislative, judicial, or administrative or other official proceeding. (6) Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. (7) Any building, whether used as a dwelling or not, situated in a populated or congested area.

CHAPTER 9 MALICIOUS MISCHIEF MALICIOUS MISCHIEF: It is the willful causing of damage to another’s property for the sake of causing damage because of hate, revenge or other evil motive. ARTICLE 327 - WHO ARE RESPONSIBLE

Elements of malicious mischief: (1) Offender deliberately caused damage to the property of another. (2) Such act does not constitute arson or other crimes involving destruction (3) Act of damaging another’s property be committed merely for the sake of damaging it.

SEC. 3. Other Cases of Arson—The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any building used as offices of the government or any of its agencies (2) Any inhabited house or dwelling

If there is no malice in causing damage, the obligation to pay for the damages is only civil (Art. 2176)

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Damage means not only loss but also diminution of what is a man’s own. Thus, damage to another’s house includes defacing it. [People v Asido]

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ARTICLE 331 – DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS

The penalty is lower if the thing destroyed is a public painting, rather than a public monument.

ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF

CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY

Special cases of malicious mischief: (qualified malicious mischief) (1) causing damage to obstruct the performance of public functions (2) using any poisonous or corrosive substance (3) Spreading infection or contagion among cattle (4) causing damage to property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.

ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY

Crimes involved in the exemption: (1) Theft (2) Swindling (estafa) (3) Malicious mischief If the crime is robbery, exemption does not lie. Persons exempt from criminal liability: (1) Spouses, ascendants and descendants, or relatives by affinity in the same line. (2) The widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another. (3) Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

ARTICLE 329 - OTHER MISCHIEFS

Other mischiefs not included in Art. 328 are punished based on value of the damage caused. If the amount involved cannot be estimated, the penalty of arresto menor of fine not exceeding P200 is fixed by law. When several persons scattered coconut remnants which contained human excrement on the stairs and floor of the municipal building, including its interior, the crime committed is malicious mischief under Art. 329. [People v Dumlao]

The law recognizes the presumed co-ownership of the property between the offender and the offended party. There is no criminal, but only civil liability. Art. 332 does not apply to a stranger who participates in the commission of the crime.

ARTICLE 330 - DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION

Committed by damaging any railway, telegraph, or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, a higher penalty shall be imposed. (Qualifying Circumstance)

Stepfather and stepmother are included as ascendants by affinity. [People v Alvarez; People v Adame] Guevarra: An adopted or natural child should also be considered as included in the term “descendants” and a concubine or paramour within the term “spouses”.

Telegraph/phone lines must pertain to railways. Q: What is the crime when, as a result of the damage caused to railway, certain passengers of the train are killed?

Art. 332 also applies to common-law spouses. [Art. 144, CC; People v Constantino]

A: It depends. Art. 330 says “without prejudice to the criminal liability of the offender for other consequences of his criminal act.”

Jurisprudence THEFT The fact that beans (subject of the crime were sacks of beans) were scattered on the floor inside and in front of the stall of petitioner and in the parking lot does not necessarily lead to the conclusion that petitioner is the perpetrator of the crime.

If there is no intent to kill, the crime is “damages to means to means of communication” with homicide because of the first paragraph of Art. 4 and Art. 48. If there is intent to kill, and damaging the railways was the means to accomplish the criminal purpose, the crime is murder

This cannot be equated with the principle of law that a person in possession or control of stolen goods is presumed to be the author of the larceny. Absent

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proof of any stolen property in the possession of a person, as in the case at bar, no presumption of guilt can arise. The place was a market and presumably, petitioner was not the only vendor of beans.

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crime is the special complex crime of Robbery with Rape. So long as the intent of the accused is to rob, rape may be committed before, during or after the robbery. But if the primary intent ofthe accused was to rape and his taking away the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and Theft or Robbery depending upon the circumstances surrounding the unlawful taking. [People v. Naag, GR No. 1361394, Feb. 15, 2001]

Where the proven facts and circumstances are capable of two or more explanations, one of which is consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty and is not sufficient to convict the accused. [Aoas v. People (2008)]

QUALIFIED THEFT (Abuse of Confidence) Mere circumstance that petitioners were employees of Western does not suffice to create the relation of confidence and intimacy that the law requires.

DESTRUCTIVE ARSON It is clear that the place of the commission of the crime was a residential and commercial building located in an urban and populated area. This qualifying circumstance places the offense squarely within the ambit of Section 2(7) of P.D. 1613, and converts it to “destructive arson.

The element of grave abuse of confidence requires that there be a relation of independence, guardianship or vigilance between the petitioners and Western.

It was also established that the subject building was insured against fire for an amount substantially more than its market value, a fact that has given rise to the unrebutted prima facie evidence of arson, as provided in Section 6 of P.D. 1613. [Amora v. People (2008)]

Petitioners were not tasked to collect or receive payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase and in demonstrating the merchandise to prospective buyers. While they had access to the merchandise, they had no access to the cashier’s booth or to the cash payments subject of the offense. [Astudillo vs. People(2006)]

ROBBERY WITH HOMICIDE Does not include taking the gun to shoot its previous holder. The Court disagrees with the Court of Appeals that appellant committed the crime of robbery with homicide. There is nothing in the records that would show that the principal purpose of appellant was to rob the victim of his shotgun (Serial No. 9600942).

THEFT (Corpus Delicti) The Petitioner contends that he cannot be held liable for the charges on the ground that he was not caught in possession of the missing funds. This is clutching at straws. To be caught in possession of the stolen property is not an element of the corpus delicti in theft.

It must be emphasized that when the victim and appellant met and had a heated argument, the absence of the intent to rob on the part of the appellant was apparent. Appellant was not trying to rob the victim. Appellant’s act of taking the shotgun was not for the purpose of robbing the victim, but to protect himself from the victim.

Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.” In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.

No one would in one’s right mind just leave a firearm lying around after being in a heated argument with another person.

In the case before us, these two elements were established. The amounts involved were lost by WUP because petitioner took them without authority to do so. [Gan vs. People(2007)]

Having failed to establish that appellant’s original criminal design was robbery, appellant could only be convicted of the separate crimes of either murder or homicide, as the case may be, and theft. [People vs. Lara]

THEFT; Attempted or Consummated only The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate the Adiao, Dino and Empelis rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the “free disposition of the

ROBBERY WITH RAPE If the intention of the accused was to rob, but rape was committed even before the asportation, the

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items stolen” is in any way determinative of whether the crime of theft has been produced. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft.[Valenzuela vs. People (2007)]

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(5) Some LGUs have anti-Cable Television Theft Ordinances. (6) Theft of Forestry Products (PD 330); (7) Theft of Minerals/Ores (PD 581); Cases: (a) Theft by bank teller considered Qualified Theft [Roque vs. People(2004)] (b) Grave abuse of confidence, requirements [Astudillo vs. People(2006)] (c) Carnapping vs. Qualified Theft [People vs. Bustinera(2004)]

ROBBERY WITH HOMICIDE; (Absorption Theory applied) Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery. [People v. Cabbab, Jr.(2007)]

ESTAFA (a) “Conversion”/”Misappropriation”, explained [Lee vs. People (2005)] (b) Estafa may coincide with Illegal recruitment [People vs. Hernandez (2002)] (c) “Deceit”/”False Pretense”, explained [Pablo vs. People (2004)] (d) SYNDICATED ESTAFA/Economic Sabotage (Presidential Decree No. 1689)—Ponzi scheme; Pyramid Scams

ESTAFA; Essence of Misappropriation The words “convert” and “misappropriate” connote an act of using or disposing of another’s property as if it were one’s own or devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage but also every attempt to dispose of the property of another without any right. [Tan vs. People]

Case: Soliciting funds from and eventually defrauding the general public constitutes syndicated estafa amounting to economic sabotage [People vs. Balasa (1998)]

ESTAFA (Sale of jewelry; Failure to return) In an agency for the sale of jewelries, as in the present case, it is the agent’s duty to return the jewelry upon demand of the owner and failure to do so is evidence of conversion of the property by the agent. In other words, the demand for the return of the thing delivered in trust and the failure of the accused to account for it are circumstantial evidence of misappropriation. However, this presumption is rebuttable. If the accused is able to satisfactorily explain his failure to produce the thing delivered in trust or to account for the money, he may not be held liable for estafa. [People v. Manantan]

BOUNCING CHECKS LAW (a) Modes of committing violations of BP 22; (b) Presumptions/Evidentiary Rules Cases: (a) Rule of Preference in BP 22 violations: Court may impose imprisonment or a fine [Bernardo vs. People (2007)] (b) Only a full payment of the face value of the second check at the time of its presentment or during the five-day grace period could exonerate one from criminal liability. [Macalalag vs. People (2006)]

ADDITIONAL NOTES THEFT (a) Presumption of thievery -- possession of stolen goods [People vs. Dela Cruz (2000)] (b) No frustrated theft; Either attempted or consummated only [Valenzuela vs. People (2007)]

See Also: (1) PD 1612: Anti-Fencing Law (2) BP 22: Bouncing Check Law (3) RA 6539: Anti-Carnapping Act (4) RA 9372: Human Security Act (5) PD 1613: Anti-Arson Law

QUALIFIED THEFT Related Laws (1) Anti-Carnapping Act of 1972 (RA 6539); (2) Anti-Cattle Rustling Law of 1974 (PD 533); (3) Heavier Penalties for Thefts by Employees and Laborers (PD 133); (4) Anti-Electricity Pilferage Act (RA 7832);

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Title XI. Crimes against Chastity (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13)

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The man, to be guilty of adultery, must have knowledge of the married status of the woman. A married man who is not liable for adultery, because he did not know that the woman is married, may be held liable for concubinage.

Art. 333: Adultery Art. 334: Concubinage Art. 336: Acts of Lasciviousness Art. 337: Qualified Seduction Art. 338: Simple Seduction Art. 339: Acts of Lasciviousness with the consent of the offended party Art. 340: Corruption of minors Art. 341: White Slave Trade Art. 342: Forcible Abduction Art. 343: Consented Abduction Art. 344: Prosecution of the crimes of Adultery Art. 345: Civil Liability Art. 346: Liability of Ascendants, guardians, teachers, or other persons entrusted with custody of the offended

Acquittal of one of the defendants does not operate as a cause of acquittal of the other. Under the law, there is no accomplice in adultery. Direct proof of carnal knowledge is not necessary. Circumstantial evidence is sufficient. (i.e. love letters signed by the paramour, photos showing intimate relations, testimony of witnesses) Pardon by the H does not exempt the adulterous W and her paramour from criminal liability for adulterous acts committed subsequent to such pardon, because the pardon refers to previous and not to subsequent adulterous acts

ARTICLE 333 - ADULTERY Elements: (1) that the woman is married; (2) that she has sexual intercourse with a man not her husband; (3) that as regards the man with whom she has sexual intercourse: he must know her to be married.

Effect of Pardon - applies to Concubinage as well: (1) The pardon must come before the institution of the criminal prosecution; and (2) Both the offenders must be pardoned by the offended party. Act of sexual intercourse subsequent to adulterous conduct is considered as an implied pardon. (3) Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. (4) Delay in the filing of complaint, if satisfactorily explained, does not indicate pardon.

LEGENDS: H – husband; W – wife; M - marriage Offenders: Married woman and/or the man who has carnal knowledge of her, knowing her to be married, even if the M be subsequently declared void. It is not necessary that there be a valid M (i.e. void ab initio)

Effect of consent: The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent. [People v. Sensano and Ramos]

Essence of adultery: violation of the marital vow Gist of the crime: the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. (US v. Mata)

Agreement to separate may be used as evidence to show consent by the husband to the infidelity of his wife.

The offended party must be legally married to the offender at the time of the filing of the complaint.

Effect of death of paramour: Offending wife may still be prosecuted. The requirement that both offenders should be included in the complaint is absolute only when the two offenders are alive.

Even if the marriage be subsequently declared void. Each sexual intercourse constitutes a crime of adultery.

Effect of death of offended party: The proceedings may continue. Art. 353 seeks to protect the honor and reputation not only of the living but of dead persons as well.

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ARTICLE 334 - CONCUBINAGE

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conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin. [People v. Santos]

Elements: (1) That the man must be married; (2) That he committed any of the following acts: (a) keeping a mistress in the conjugal dwelling; (b) Having sexual intercourse under scandalous circumstance with a woman not his wife; (c) Cohabiting with her in any other place; (3) That as regards the woman, she must know him to be married.

It is only when the mistress is kept elsewhere (outside the conjugal dwelling) that “scandalous circumstances” become an element of the crime. [US v. Macabagbag] Qualifying expression: Sexual act which may be proved by circumstantial evidence

LEGENDS: H – husband; W – wife; M - marriage

Scandal produced by the concubinage of H: (1) H and mistress live in the same room of a house (2) They appear together in public, (3) Perform acts in sight of the community which give rise to criticism and general protest among the neighbors.

Offenders: married man and the woman who knows him to be married. The woman only becomes liable only if she knew him to be married prior to the commission of the crime. rd In the 3 way committing the crime, mere cohabitation is sufficient; Proof of scandalous circumstances not necessary. [People v. Pitoc, et. al.]

When spies are employed for the purpose of watching the conduct of the accused and it appearing that none of the people living in the vicinity has observed any suspicious conduct, there is no evidence of scandalous circumstances. [US v. Campos Rueda]

A married man is not liable for concubinage for mere sexual relations with a woman not his wife. A man would only be guilty of concubinage if he appeared to be guilty of any of the acts punished in Art. 334.

Reason: Adultery is punished more severely than concubinage because adultery makes possible the introduction of another man’s offspring into the family so that the offended H may have another man’s son bearing H’s name and receiving support from him.

A married man who is not liable for adultery because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well. Mistress – a woman taken by the accused to live with him in the conjugal dwelling as his mistress/concubine. [People v. Bacon and People v. Hilao]

ARTICLE 335 – RAPE Repealed by R.A. 8353. ARTICLE 336 - ACTS OF LASCIVIOUSNESS

Keeping a mistress in the conjugal dwelling – no positive proof of sexual intercourse is necessary

Elements: (1) That the offender commits any act of lasciviousness or lewdness; (2) That the is committed against a person of either sex; (3) That is done under any of the ff. circumstances: (a) By using force or intimidation; or (b) When the offended party is deprived of reason or otherwise unconscious; (c) When the offended party is under 12 years of age or is demented.

Conjugal Dwelling – the home of the H and the W even if the wife appears to be temporarily absent on any account. The dwelling of the spouses was constructed from the proceeds of the sale of their conjugal properties. The fact that W never had a chance to reside therein and that H used it with his mistress instead, does not detract from its nature. [People v. Cordova (1959)]

Lewd – obscene, lustful, indecent, lecherous; signifies form of immorality which has relation to moral impurity or that which is carried in wanton manner

Cohabit – to dwell together as H and W for a period of time (i.e. A week, a month, year or longer) Scandalous circumstances – Scandal consists in any reprehensible word or deed that offends public PAGE 219

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Motive of lascivious acts is not important because the essence of lewdness is in the very act itself.

the offender.

Offenses against Chastity

Some act of lasciviousness should have been executed by the offender.

Lascivious intent is implied from the nature of the act and the surrounding circumstances.

Mere immoral or indecent proposal made earnestly and persistently is sufficient.

The accused followed the victim, held her, embraced her, tore her dress, and tried to touch her breast. When a complaint for acts of lasciviousness was filed against him, accused claimed that he had no intention of having sexual intercourse with her and that he did the acts only as revenge. TC found the accused guilty of FRUSTRATED ACTS OF LASCIVIOUSNESS. SC held that there is no frustrated crime against chastity which includes acts of lasciviousness, adultery, and rape. [People v. Famularcano]

Consider the act and the environment to distinguish between Acts of Lasciviousness and Attempted Rape. Desistance in the commission of attempted rape may constitute acts of lasciviousness. No attempted and frustrated acts of lasciviousness. Acts of Lasciviousness v. Grave Coercion Grave Coercion

Compulsion or force is Compulsion or force is the included in the very act constituting the constructive element of offense of grave coercion. force.

From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose. Motive of revenge is of no consequence since the element of lewdness is in the very act itself. Example: Compelling a girl to dance naked before a man is an act of lasciviousness, even if the dominant motive is revenge, for her failure to pay a debt.

Must be accompanied by Moral compulsion acts of lasciviousness or amounting to intimidation lewdness. is sufficient. Acts of Lasciviousness v. Attempted Rape

Two kinds of seduction: (1) Qualified seduction (Art. 337) (2) Simple seduction (Art. 338)

Attempted Rape

Same means of committing the crime: (1) Force, threat, or intimidation is employed; or (2) By means of fraudulent machination or grave abuse of authority; or (3) The offended party is deprived of reason or otherwise unconscious; or (4) Victim is under 12 yrs. of age or is demented

ARTICLE 337 - QUALIFIED SEDUCTION Elements: (1) That the offended party is a virgin, which is presumed if she is unmarried and of good reputation; (2) That the she must be over 12 and under 18 yrs. of age; (13-17 years 11 months 29 days) (3) That the offender has sexual intercourse with her; (4) That the there is abuse of authority, confidence, or relationship on the part of the offender.

Offended party is a person of either sex. The performance of acts of lascivious character Acts performed do not indicate that the accused was to lie w/ the offended party.

Abuses against Chastity

Committed by a private Committed by a public individual, in most cases officer only

Absent any of the circumstances of rape under the rd 3 element, the crime is UNJUST VEXATION. (e.g. touching of breast)

Acts of Lasciviousness

the commission of rape.

Abuses against chastity (Art. 245) v acts of lasciviousness (Art. 336)

Example: If the kissing etc. was done inside church (which is a public place), absence of lewd designs may be proven, and the crime is unjust vexation only. But if the kissing was done in the house of a woman when she was alone, the circumstances may prove the accused’s lewd designs.

Acts of Lasciviousness

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Acts performed clearly indicate that the accused’s purpose was to lie w/ the offended woman.

Seduction - enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without use of force. It applies when there

Lascivious acts are the Lascivious acts are only final objective sought by the preparatory acts to

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is abuse of authority (qualified seduction) or deceit (simple seduction).

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The age, reputation, or virginity of the sister or descendant is irrelevant. The relationship need not be legitimate.

Two classes of Qualified Seduction: (1) Seduction of a virgin over 12 years and under 18 years of age by certain persons such as, a person in authority, priest, teacher or any person who, in any capacity shall be entrusted with the education or custody of the woman seduced. (2) Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation.

A 15-year old virgin, who was brought by her mother to the house of the accused and his wife to serve as a helper, repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation. HELD: DECEIT, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by ABUSE OF CONFIDENCE. [People v. Fontanilla]

Virgin - a woman of chaste character and of good reputation. The offended party need not be physically a virgin. If there is no sexual intercourse and only acts of lewdness are performed, the crime is acts of lasciviousness. If any of the circumstances in the crime of rape is present, the crime is not to be punished under Art. 337.

The accused, a policeman, brought a 13-year old girl with low mentality, to the ABC Hall where he succeeded in having sexual intercourse with her. The complaint did not allege that the girl was a virgin. The accused was charged with RAPE but convicted of QUALIFIED SEDUCTION.

The accused charged with rape cannot be convicted of qualified seduction under the same information.

HELD: Though it is true that virginity is presumed if the girl is over 12 but under 18, unmarried and of good reputation, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. Accused is guilty of RAPE, considering the victim’s age, mental abnormality and deficiency. There was also intimidation with the accused wearing his uniform. [Babanto v. Zosa]

Offenders in Qualified Seduction: (1) Those who abused their authority: (PaG-TE/C) (a) Person in public authority; (b) Guardian; (c) Teacher; (d) Person who, in any capacity, is entrusted with the education or custody of the woman seduced. (2) Those who abused confidence reposed in them: (PHD) (a) Priest; (b) House servant; (c) Domestic (3) Those who abused their relationship: (a) Brother who seduced his sister; (b) Ascendant who seduced his descendant.

Consented Abduction

“Domestic” - a person usually living under the same roof, pertaining to the same house. Not necessary that the offender be the teacher of the offended party; it is sufficient that he is a teacher in the same school.

Qualified Seduction

Means

Requires the taking Requires abuse away of the victim of authority, w/ her consent confidence or relationship

Act

Offender has sexual Taking intercourse with designs

Wronged

The girl

away lewd

The girl’s family

Perez succeeded in having sexual intercourse with Mendoza after he promised to marry her. As he did not make good on said promise, Mendoza filed a complaint for Consented Abduction. Trial Court found that the acts constituted seduction, acquitting him on the charge of Consented Abduction. Mendoza then filed a complaint for Qualified Seduction. Perez moved to dismiss the case on the grounds of double jeopardy.

Qualified seduction may also be committed by a master to his servant, or a head of the family to any of its members. Qualified seduction of a sister or descendant, also known as INCEST, is punished by a penalty next higher in degree.

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HELD: There are similar elements between consented abduction and qualified seduction, namely: (1) the offended party is a virgin, and (2) over 12 but under 18 yrs. of age

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under 18 yrs. of age but over 12 yrs., or a sister or descendant, regardless of her reputation or age; (3) The offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit. It is necessary that it be committed under circumstances which would make it qualified or simple seduction had there been sexual intercourse, instead of acts of lewdness only.

However, an acquittal for CONSENTED ABDUCTION will not preclude the filing of a charge for QUALIFIED SEDUCTION because the elements of the two crimes are different. [Perez v. CA] NOTE: The fact that the girl gave consent to the sexual intercourse is not a defense.

When the victim is under 12 yrs., the penalty shall be one degree higher than that imposed by law. (sec. 10 of R.A. 7610)

ARTICLE 338 - SIMPLE SEDUCTION

Males cannot be the offended party.

Elements: (1) That the offended party is over 12 and under 18 years of age; (2) That she is of good reputation, single or widow; (3) That the offender has sexual intercourse with her; (4) That it is committed by means of deceit. Purpose of the law - To punish the seducer who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character Virginity of offended party is not essential, good reputation is sufficient.

Acts of Lasciviousness (Art. 336)

Acts of Lasciviousness with consent (Art. 339)

Committed under circumstances w/c, had there been carnal knowledge, would amount to rape

Committed under circumstances w/c, had there been carnal knowledge, would amount to either qualified or simple seduction

Offended party female or male

is

a Offended party only be female

should

Virginity of offended party is not required.

ARTICLE 340 - CORRUPTION OF MINORS

Deceit generally takes the form of unfulfilled promise of marriage.

Acts punishable: The promotion or facilitation of the prostitution or corruption of persons under age (minors), to satisfy the lust of another.

Promise of marriage must be the inducement and the woman must yield because of the promise or other inducement.

LIABILITY: (1) Any person (2) Punishable by prision mayor (3) A public officer or employee, including those in government-owned or controlled corporations (4) Shall also be penalized by temporary absolute disqualification (As amended by BP 92).

What about unfulfilled promise of material things, as when the woman agrees to sexual intercourse in exchange for jewelry? This is not seduction because she is a woman of loose morals.

Habituality or abuse of authority or confidence is not necessary.

Promise of marriage after sexual intercourse does not constitute deceit. Promise of marriage by a married man is not a deceit, if the woman knew him to be married.

It is not necessary that the unchaste acts shall have been done.

Seduction is not a continuing offense.

Mere proposal will consummate the offense.

ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY

The victim must be of good reputation, not a prostitute or corrupted person.

Elements: (1) Offender commits acts of lasciviousness or lewdness; (2) The acts are committed upon a woman who is a virgin or single or widow of good reputation,

SEE ALSO: RA 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION, AND DISCRIMINATION ACT

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There is a crime of ATTEMPTED PROSTITUTION. (Sec. 6, RA 7610)

CHILD

(1) Acts of lasciviousness against the will or without the consent of the offended party (2) Qualified seduction of sister or descendant (3) Forcible abduction

ARTICLE 341 - WHITE SLAVE TRADE Acts punishable: (1) Engaging in business of prostitution (2) Profiting by prostitution (3) Enlisting the services of women for the purpose of prostitution.

The taking away of the woman must be against her will. The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation.

Habituality is not a necessary element of white slave trade.

If the female abducted is under 12, the crime is forcible abduction, even if she voluntarily goes with her abductor.

‘Under any pretext’ – one who engaged the services of a woman allegedly as a maid, but in reality for prostitution, is guilty under this article.

When the victim was abducted by the accused without lewd designs, but for the purpose of lending her to illicit intercourse with others, the crime is not abduction but corruption of minors.

Victim is under 12 yrs., penalty shall be one degree higher. Offender need not be the owner of the house.

Rape may absorb forcible abduction, if the main objective was to rape the victim.

Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest. Corruption of Minors Minority essential

of

Sexual intercourse is not necessary in forcible abduction.

White Slave Trade

Lewd designs may be shown by the conduct of the accused. When there are several defendants, it is enough that one of them had lewd designs. Husband is not liable for abduction of his wife, as lewd design is wanting.

victims Minority is not required

Victims may be male or Applies only to females female May not necessarily be for Generally for profit profit Committed by a single act Generally habitually

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Attempt to rape is absorbed in the crime of forcible abduction, thus there is no complex crime of forcible abduction with attempted rape.

committed

Nature of the crime - The act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and public order.

ARTICLE 342 - FORCIBLE ABDUCTION Elements: (1) The person abducted is any woman, regardless of her age, civil status or reputation; (2) The abduction is against her will; (3) The abduction is with lewd designs.

Forcible Abduction

Grave Coercion

There is violence or intimidation by the offender. The offended party is compelled to do something against her will.

Abduction – the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with the intent to marry or to corrupt her.

Abduction characterized design.

Two kinds of abduction: (1) Forcible abduction (Art. 342) (2) Consented abduction (Art. 343)

by

is No lewd design, provided lewd that there is no deprivation of liberty for an appreciable length of time.

Forcible Abduction

Corruption of Minors

Purpose is to effect his Purpose is to lend the lewd designs on the victim to illicit intercourse

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Forcible Abduction victim. Forcible Abduction

CRIMINAL LAW: BOOK TWO

HELD: The accused is guilty of FORCIBLE ABDUCTION WITH RAPE. It was proven that the victim was taken against her will and with lewd design, and was subsequently forced to submit to the accused’s lust, rendering her unconscious in the process. [People v. Alburo]

Corruption of Minors with others. Serious Illegal Detention

There is deprivation of There is deprivation of liberty and lewd designs. liberty and no lewd designs

There can only be one complex crime of forcible abduction with rape.

Commission of other crimes during confinement of victim is immaterial to the charge of kidnapping w/ serious illegal detention. Forcible Abduction with Rape

The victim witnessed the killing of another by the 2 accused. Upon seeing her, the accused dragged her to a vacant lot where they took turns in raping her. TC convicted them of rape. HELD: FORCIBLE ABDUCTION is absorbed in the crime of RAPE if the main objective is to rape the victim. Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction. [People v. Godines]

Kidnapping (with rape)

The violent taking of the Not so motivated woman is motivated by lewd designs. Crime against chastity

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ARTICLE 343 - CONSENTED ABDUCTION Elements: (1) Offended party is a virgin; (2) She is over 12 and under 18 yrs. of age; (3) Offender takes her away with her consent, after solicitation or cajolery from the offender; (4) The taking away is with lewd designs.

Crime against liberty

Forcible Abduction with Rape - a complex crime under Art.48, and not a special complex crime The victim was abducted by the accused and was brought to a hotel where the latter succeeded in having sexual intercourse with her.

Purpose of the law - Not to punish the wrong done to the girl because she consents to it, but to prescribe punishment for the disgrace to her family and the alarm caused by the disappearance of one who is, by her age and sex, susceptible to cajolery and deceit.

HELD: The elements of both rape and forcible abduction are proven. The presence of lewd designs in forcible abduction is manifested by the subsequent rape of the victim. [People v. Sunpongco]

If the virgin is under 12 or is deprived of reason, the crime is forcible abduction because such is incapable of giving a valid consent.

This is the Maggie Dela Riva story wherein Maggie was abducted and brought to a hotel, where the 4 accused took turns in raping her.

The taking away of the girl need not be with some character of permanence. Offended party need not be taken from her house.

HELD: While the first act of rape was being performed, the crime of forcible abduction had already been consummated, hence, forcible abduction can only be attached to the first act of rape, detached from the 3 subsequent acts of rape. The effect therefore would be one count of forcible abduction with rape and 4 counts of rape for each of the accused. [People v. Jose]

When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse. ARTICLE 344 - PROSECUTION OF PRIVATE OFFENSES (1) (2) (3) (4) (5)

The accused and 2 other men raped the victim. The victim was a jeepney passenger who was prevented from leaving the jeepney. She was taken to a remote place where she was raped.

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Nature of the complaint: The complaint must be filed in court, not with the fiscal. In case of complex crimes, where one of the component offenses is a public crime, the criminal prosecution may be instituted by the fiscal.

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Seduction, abduction, acts of lasciviousness Seduction, abduction, or acts of lasciviousness must be prosecuted upon complaint signed by— (1) Offended party - When the offended party is a minor, her parents may file the complaint. (2) When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint. (3) Parents, Grandparents or Guardian in that order

The court motu proprio can dismiss the case for failure of the aggrieved party to file the proper complaint even if the accused never raised the question on appeal.

When the offended is a minor or incapacitated and refuses to file the complaint, any of the persons mentioned could file.

Crimes against chastity cannot be prosecuted de oficio. Adultery and Concubinage

The term “guardian” refers to legal guardian. He must be legally appointed by the Court.

Who may file the complaint: Adultery and Concubinage must be prosecuted upon complaint signed by the offended spouse.

The State may also file the complaint as parens patriae when the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents, or guardians

The offended party cannot institute criminal prosecution without including BOTH the guilty parties if they are alive. Both parties must be included in the complaint even if one of them is not guilty.

Effect of Pardon: (1) Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian. (2) Pardon by the parent, grandparent, or guardian must be accompanied by the express pardon of the offended woman. (3) The right to file action of the parents, grandparents and guardian shall be EXCLUSIVE of other persons and shall be exercised successively in the order provided. (4) Pardon by the offended party who is a minor must have the concurrence of parents, EXCEPT when the offended party has no parents.

Consent and pardon bar the filing of a criminal complaint. The imputation of a crime of prostitution against a woman can be prosecuted de oficio, but crimes against chastity cannot. Prosecution of rape may be made upon complaint by any person. Effect of Pardon: (see Effect of Pardon in Art. 333 Adultery) (1) Effect of Pardon in Adultery applies also to Concubinage (2) Condonation or forgiveness of one act of adultery or concubinage is not a bar to prosecution of similar acts that may be committed by the offender in the future.

Rape complexed with another crime against chastity need NOT be signed by the offended woman, since rape is a public crime. When the evidence fails to prove a complex crime of rape with another crime, and there is no complaint signed by the offended woman, the accused CANNOT be convicted of rape.

Consent: (1) May be express or implied (2) Given before the adultery or concubinage was committed (3) Agreement to live separately may be evidence of consent. (4) Affidavit showing consent may be a basis for new trial.

Marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness and rape, extinguishes criminal action or remits the penalty already imposed. Marriage (in cases of seduction, abduction, and acts of lasciviousness) extinguishes the criminal action even as to co-principals, accomplices, and accessories. Marriage must be entered into in good faith.

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(d) teachers, and (e) any other person, who cooperate as accomplice with abuse of authority or confidential relationship (2) The teachers or persons entrusted with education and guidance of the youth shall also be penalized with disqualification.

Marriage may take place AFTER criminal proceedings have commenced, or even after conviction (extinguishes criminal action and remits penalty). ARTICLE 345: CIVIL LIABILITY Those guilty of rape, seduction or abduction: (1) To indemnify the offended woman (2) To acknowledge the offspring, unless the law should prevent him from doing so (3) In every case to support the offspring, EXCEPT: (a) in cases of adultery and concubinage (b) where either of the offended party or accused is married (c) when paternity cannot be determined, such as in multiple rape (d) other instances where the law prevents such

Jurisprudence for Title Eleven CHILD ABUSE; Sweetheart defense not available The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.

The adulterer and the concubine can be sentenced only to indemnify for damages caused to the offended spouse.

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. [Malto v. People (2007)]

Under the RPC, there is no civil liability for acts of lasciviousness. Art. 2219, CC: moral damages may be recovered in seduction, abduction, rape, or other lascivious acts, as well as in adultery and concubinage.

RAPE; Exemplary Damages; Child Victims Exemplary damages must also be awarded in these child abuse cases to deter others with perverse tendencies from sexually abusing young girls of their own flesh and blood. [People vs. Abellera(2007)]

The parents of the female seduced, abducted, raped, or abused may also recover moral damages. In multiple rape, all the offenders must support the offspring.

CHILD ABUSE; Pandering Child Prostitutes Appellant’s violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4) threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration, goods or other pecuniary benefits to the child with the intent to engage such child in prostitution.

Art. 283 (1), CC: Judgment to recognize the offspring may only be given if there is pregnancy within the period of conception, which is within 120 days from the commission of the offense. In rape of a married woman, only indemnity is allowed. ARTICLE 346 – LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY Liability of ascendants, guardians, teachers or other persons entrusted with the custody of the offended party (1) Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, etc. (see list below for the complete set of crimes referred to in this article): (a) ascendants (b) guardians (c) curators

The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development. A child exploited in prostitution may seem to “consent” to what is being done to her or him and may appear not to complain.

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(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

However, we have held that a child who is “a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition” is incapable of giving rational consent to any lascivious act or sexual intercourse. In fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve. [People vs. Delantar (2007)] CHILD ABUSE; Definition of “Lascivious Conduct The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: (1) The accused commits the act of sexual intercourse or lascivious conduct. (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. (3) The child, whether male or female, is below 18 years of age. [Navarrete vs. People (2007)]

RA 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION Child prostitution and other acts of abuse Punishable acts Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes

“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as: (1) The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, OR the introduction of any object into the genitalia, anus or mouth, of any person, (2) whether of the same or opposite sex, (3) with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, (4) bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 PUNISHABLE ACTS

Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

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place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

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selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; (d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; (e) To maintain or hire a person to engage in prostitution or pornography; (f) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (g) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and (h) To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.

Comparison with art. 366, RPC Acts of lasciviousness is punished under RA 7610 when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse. Obscene publications and indecent shows Punishable acts Section 9. Obscene Publications and Indecent Shows. – Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

Section 5. Acts that Promote Trafficking in Persons. The following acts which promote or facilitate trafficking in persons, shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; (c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; (e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons;

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. RA 9208: ANTI-TRAFFICKING IN PERSONS ACT Punishable acts Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering,

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(f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.

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(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own money or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence;

Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "InterCountry Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS). RA 9262: ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN Punishable acts SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm;

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(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children.

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Substitution of one child for another This is committed when a child of a couple is exchanged with a child of another couple without the knowledge of the respective parents. The substitution can also happen by placing a live child of a woman in place of another’s dead child.

Title XII. Crimes against the Civil Status of Persons

Concealing or abandoning any legitimate child Requisites: (1) The child must be legitimate (2) The offender conceals or abandons such child; and (3) The offender has the intent to cause such child to lose its civil status.

Chapter I: Simulation of Births and Usurpation of Civil Status (1) Art 347: Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (2) Art 348: Usurpation of civil status

The unlawful sale of a child by his father is not a crime under this article.

Chapter II: Illegal Marriages (1) Art 349: Bigamy (2) Art 350: Marriage contracted against provisions of law (3) Art 351: Premature marriages (4) Art 352: Performance of illegal marriage ceremony

“Abandon” as used in art. 347 - The practice of abandoning newly born infants and very young child at the door of hospitals and churches. Art. 347 Offender: Any person

CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS

Art. 246 Offender: The one who has the custody of the child

Purpose: To cause the Purpose: To avoid child to lose his civil obligation of rearing and status. caring for the child.

ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD

Mode 1. Simulation of births;

A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.

Mode 2. Substitution of one child for another; Mode 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.

ARTICLE 348 - USURPATION OF CIVIL STATUS

This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person.

The object of the crime under art. 347 is the creation of false, or the causing of loss of, civil status. Simulation of birth Takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own.

Usurpation of profession may be punished under art. 348.

The simulation of birth which is a crime is that which alters the civil status of a person.

CHAPTER II: ILLEGAL MARRIAGES

There must be an intent to enjoy the rights arising from the civil status of another.

ARTICLE 349 – BIGAMY

The fact that the child will be benefited by the simulation of its birth is not a defense.

Elements:

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The witness who falsely vouched for the capacity of either of the contracting parties is also an accomplice.

(1) Offender has been legally married; (2) The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) He contracts a second or subsequent marriage; (4) The second or subsequent marriage has all the essential requisites for validity.

Bigamy is not a private crime. ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS

Elements: (1) Offender contracted marriage; (2) He knew at the time that – (a) The requirements of the law were not complied with; or (b) The marriage was in disregard of a legal impediment..

The first marriage must be valid. Nullity of marriage, not a defense in bigamy. The fact that the first marriage is void from the beginning is not a defense. As with voidable marriage, there must be a judicial declaration of nullity of marriage before contracting the second marriage.

Bigamy is a form of illegal marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or marriages where the consent of the other is vitiated, or such marriage which was solemnized by one who is not authorized to solemnize the same.

Good faith is a defense in bigamy. Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence. One who contracted a subsequent marriage before the declaration of presumptive death of the absent spouse is guilty of bigamy.

Conviction of a violation of art. 350 involves a crime of moral turpitude. (Villasanta v. Peralta, 101 Phil. 313) ARTICLE 351 - PREMATURE MARRIAGE

The second marriage must have all the essential requisites for validity. One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party.

Persons liable: (1) A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death; (2) A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation.

The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.

The purpose of the law punishing premature marriages is to prevent doubtful paternity. (People v. Rosal, 49 Phil. 509)

The second spouse is not necessarily liable for bigamy.

The Supreme Court considered the reason behind making such marriages within 301 days criminal, that is, because of the probability that there might be a confusion regarding the paternity of the child who would be born.

Whether the second spouse should be included in the information is a question of fact that was determined by the fiscal who conducted the preliminary investigation in this case. (People v. Nepomuceno, Jr., 64 SCRA 518)

If this reason does not exist because the former husband is impotent, OR was shown to be sterile such that the woman has had no child with him, that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent.

The second husband or wife who knew of first marriage is an accomplice.

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where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. [Lucio Morigo v. People(2002)]

- PERFORMANCE OF ILLEGAL MARRIAGE

PERSONS LIABLE: (1) Priests or ministers of any religious denomination or sect, or civil authorities (2) who shall perform or authorize any illegal marriage ceremony

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The offender must be authorized to solemnize marriages. Jurisprudence: Bigamy The primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid.

The outcome of the civil case for annulment of petitioner's marriage to Narcisa had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding.

In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: (1) The offender has been legally married; (2) The first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) He contracts a subsequent marriage; and (4) The subsequent marriage would have been valid had it not been for the existence of the first.

In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. [Abunado v. People(2004)]

Applying the foregoing test to the instant case, we note that the trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer.

A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.”

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of.

This Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.

Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained

This Court further stated therein that with respect to the contention that the accused acted in good

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faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

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(3) Slander by deed – defamation through acts Test of the defamatory character of words used: Whether they are calculated to induce the hearers to suppose and understand that the person against whom they (i.e. the defamatory words) were uttered was guilty of certain offenses; OR are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell)

Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. [Diego v. Castillo(2004)]

First element: There must be an imputation of a crime, a vice or defect, real or imaginary, OR any act, omission, condition, status, or circumstance; Imputation of a criminal act may be implied from the acts and statements of the accused.

Title XIII. Crimes against Honor

Imputation of criminal intention is not libelous.

Chapter I: Libel (1) Art 353: Definition of Libel (2) Art 354: Privileged communication (3) Art 355: Libel by means of writings or similar means (4) Art 356: Threatening to publish and offer to prevent such publication for a compensation (5) Art. 357: Prohibited Publication of Acts Referred to in the course of Official Proceedings (6) Art 358: Slander (7) Art 359: Slander by Deed

Second element: The imputation must be made publicly.

Chapter II: Incriminatory Machinations (1) Art 363: Incriminating innocent person (2) Art 364: Intriguing against honor

Malice in law – presumed from a defamatory imputation. Proof of malice is not required. (Art. 354, par.1)

CHAPTER I LIBEL

But where the communication is privileged, malice is not presumed from the defamatory words.

An expression of opinion by one affected by the act of another and based on actual fact is not libelous.

Publication: communication of the defamatory matter to some third person or persons. There is no crime if the defamatory imputation is not published. Third element: The publication must be malicious. Malice in fact – may be shown by proof of ill-will, hatred or purpose to injure.

ARTICLE 353 - DEFINITION OF LIBEL

Malice in law is not necessarily inconsistent with honest or laudable purpose. Even if the publication is injurious, the presumption of malice disappears upon proof of good intentions and justifiable motive.

Elements: (1) There must be an imputation of– (a) a crime, (b) a vice or defect, real or imaginary, OR (c) any act, omission, condition, status, or circumstance; (2) The imputation must be made publicly; (3) It must be malicious; (4) The imputation must be directed at a natural or juridical person, or one who is dead.

But where malice in fact is present, justifiable motive cannot exist, and the imputations become actionable. Fourth element: The imputation must be directed at a natural or juridical person, or one who is dead.

Libel as used in Art. 353. (Reyes)

It is essential that the victim be identifiable, although it is not necessary that he be named.

Defamation is composed of: (1) Libel – written defamation (2) Slander- oral defamation PAGE 233

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Defamatory remarks directed at a group of persons is not actionable unless the statements are allembracing or sufficiently specific for the victim to be identifiable.

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without any comments or remarks, of (a) any judicial, legislative or other official proceedings which are not of confidential nature, OR (b) any statement, report or speech delivered in said proceedings, OR (c) any other act performed by public officers in the exercise of their functions.

Libel published in different places may be taken together to establish the identification of the offended party. Fifth element: The imputation must tend to cause dishonor, discredit or contempt of the offended party.

Defamatory remarks are PRESUMED malicious. The presumption of malice is REBUTTED, if it is shown by the accused that – (see discussion of Art. 361) (1) The defamatory imputation is true, IN CASE the law allows proof of the truth of the imputation; (2) It is published with good intention; AND (3) There is justifiable motive for making it

Dishonor – disgrace, shame or ignominy Discredit – loss of credit of reputation; disesteem Contempt – state of being despised For a statement to be considered malicious, it must be shown that it was written or published with the knowledge that they are false OR in reckless disregard of WON they were false.

Privileged communication is NOT PRESUMED malicious. Kinds of Privilege:

Reckless disregard– the defendant entertains serious doubt as to the truth of the publication, OR that he possesses a high degree of awareness of their probable falsity. To avoid self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. [Borjal v. CA (1999)] Fine preferred penalty in libel cases Administrative Circular No. 08-2008 stated the rule of preference of fine only rather than imprisonment in libel cases, having in mind the ff. principles: 1) The circular does not remove imprisonment as a n alternative penalty 2) Judges may, in the exercise of their discretion, determine whether the imposition of fine alone would best serve the interest of justice 3) Should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the RPC on subsidiary imprisonment.

ABSOLUTE

QUALIFIED

NOT actionable. Narrow and few: (1) Privileged speeches in congress (2) Statements made in judicial proceedings as long as they are relevant to the issue (3) Military affairs

Actionable IF Malice or Bad faith is proven (malice in Fact) Based on par 1 and 2 of Art 354, although the list is not exclusive

Art 354 does not cover absolute privilege because character of communications mentioned therein is lost upon proof of malice in fact. MALICE IN LAW

MALICE IN FACT

Presumed from To be proved by defamatory character of prosecution ONLY IF statement malice in law has been rebutted Statement is presented to court, and the latter will decide whether it is defamatory or not

ARTICLE 354 - REQUIREMENT FOR PUBLICITY

General rule: MALICE IS PRESUMED in every defamatory imputation.

Can be negated by evidence of: (1) Good motives AND Justifiable ends; or (2) Privileged character

Requisites of privileged communication under par. 1 of art. 354: (1) That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld;

Exception: in privileged communications, namely: (1) A private communication to an officer or a board, or superior, having some interest or duty in the matter, made by any person in the performance of any legal, moral or social duty; (2) A fair and true report, made in good faith,

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(2) That the communication is addressed to an officer or board, or superior, having some interest or duty in the matter. (3) The the statements in the communication are made in good faith without malice in fact.

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calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a “public personage” [Ayer Productions v. Capulong (1988)] Based on the ruling in US v. Ocampo, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication.

Applying to the wrong person due to honest mistake does not take the case out of privilege. (US v. Bustos, 37 Phil. 731) Unnecessary publicity destroys good faith.

On January 25, 2008, the Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a preference for the imposition of a fine rather than imprisonment, given the circumstances attendant in the cases cited therein in which only a fine was imposed by this Court on those convicted of libel.

The privileged character simply does away with the presumption of malice. The rule is that a communication loses its privileged character and is actionable on proof of actual malice. That the statement is a privileged communication is a matter of defense. To overcome the defense of privileged communication under par. 1 of art. 354, it must be shown that: 1) The defendant acted with malice in fact; or 2) There is no reasonable ground for believing the charge to be true.

It also states that, if the penalty imposed is merely a fine but the convict is unable to pay the same, the Revised Penal Code provisions on subsidiary imprisonment should apply.

Fair and true report of official proceedings Official proceedings refer to proceedings of the 3 branches of the government: judiciary, legislative, and executive.

However, the Circular likewise allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. [Fermin v. People(2008)]

Requisites: (1) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not confidential in nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions. (2) That it is made in good faith; and (3) That it is without comments or remarks

ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS

Libel may be committed by means of: (1) Writing; (2) Printing; (3) Lithography; (4) Engraving; (5) Radio; (6) Photograph; (7) Painting; (8) Theatrical exhibition; (9) Cinematographic exhibition; or (10) Any similar means. (e.g. video broadcast)

The communication must be pertinent and material to the subject matter. Doctrine of fair comment: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.

Common characteristic of written libel: their permanent nature as a means of publication.

In order that a discreditable imputation to a public official may be actionable, it must either be: (1) A false allegation of fact; OR (2) A comment based on a false supposition. [People v. Velasco (2000)]

Use of amplifier system is not libel but oral defamation (slander). But the defamation made in the television program is libel.

PUBLIC FIGURE – one who, by his accomplishments, fame, mode of living, OR by adopting a profession or

In a libel case filed in August 2006 against RP Nuclear Solutions and blogger Abe Olandres, the PAGE 235

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Pasig City Prosecutor dismissed the charges against them because they have no participation in the creation. Neither did they have the authority to modify the content of the site being hosted where 3 the allegedly libelous remarks were posted.

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(2) That such facts are offensive to the honor, virtue and reputation of said person. This article is referred to as the Gag Law. Prohibition applies even if the facts are involved in official proceedings.

The prosecutor however ordered the filing of cases against two other respondents who never denied authorship of the posted comments.

Newspaper reports on cases pertaining to adultery, divorce, legitimacy of children, etc. are barred from publication.

It remains debatable when the moment of publication occurs with respect to statements made 4 over the Internet. One view holds that there is publication once the statement is uploaded or posted on a website. The other view maintains that publication occurs only when another person gains access or reads the statement on the site

Under RA 1477, a newspaper reporter cannot be compelled to reveal the source of the news report he made, UNLESS the court or a House or committee of Congress finds that such revelation is demanded by the security of the state. ARTICLE 358 - SLANDER

ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION

Slander, or oral defamation is composed of two kinds: (1) Simple slander (2) Grave slander

Acts Punished: (1) Threatening another to publish a libel concerning – him, his parents, spouse, child or other members of his family (2) Offering to prevent the publication of such libel for compensation or money consideration.

Factors that determine the gravity of the oral defamation: (1) Expressions used (2) Personal relations of the accused and the offended party. (3) The surrounding circumstances.

The essence of this crime is blackmail, which is defined as any unlawful extortion of money by threats of accusation or exposure.

Illustration of grave slander: A woman of violent temper hurled at a respectable married lady with young daughters offensive and scurrilous epithets including words imputing unchastity to the mother and tending to injure the character of the daughters [U.S. vs. Toloso]

Blackmail can also be in the form of light threats, which is punished under ARTICLE 283. ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW)

Illustration of simple slander: (1) Calling a person a gangster (2) Uttering defamatory words in the heat of anger with some provocation on the part of the offended party (3) The word “putang ina mo” is a common expression in the dialect that is often employed not really to slander but rather to express anger or displeasure. It is seldom, if ever taken in its literal sense by the hearer, that is, as a reflection on the virtue of a mother. [Reyes vs. People]

Elements: (1) Offender is a reporter, editor or manager of a newspaper, daily or magazine; (2) He publishes facts connected with the private life of another; (3) Such facts are offensive to the honor, virtue and reputation of said person. Requisites of violation: (1) That the article published contains facts connected with the private life of an individual; and

The slander need not be heard by the offended party. ARTICLE 359 - SLANDER BY DEED

Elements: (1) Offender performs any act not included in any other crime against honor; (2) Such act is performed in the presence of other person or persons; (3) Such act casts dishonor, discredit or contempt

http://newsinfo.inquirer.net/breakingnews/infotech/ view_article.php?article_id=68456 3

http://thewarriorlawyer.com/2007/03/04/libel-onthe-internet-under-philippine-law-part-ii/) 4

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Liability of the editor is the same as that of the author.

upon the offended party. Slander by deed is a crime against honor which is committed by performing any act which casts dishonor, discredit, or contempt upon another person.

Lack of participation in the preparation of libelous articles does not shield the persons responsible from liability. Under Republic Act no. 8792, otherwise known as the Electronic Commerce Act, a party or person acting as a service provider incurs NO civil or criminal liability in the making, publication, dissemination or distribution of libelous material if: (1) The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent that making, publication, dissemination or distribution of such material is unlawful or infringes any rights; (2) The service provider does not knowingly receive a financial benefit directly attributable to the infringing activity; (3) The service provider does: (a) not directly commit any infringement or other unlawful act and (b) does not induce or cause another person or party to commit any infringement or other unlawful act (c) and/or does not benefit financially from the infringing activity or unlawful act of another person or party (Section 30, in relation to 5 Section 5, E-Commerce Law.

Slander by deed is of two kinds (1) Simple slander by deed (2) Grave slander by deed There is no fixed standard in determining whether a slander is serious or not; hence the courts have sufficient discretion to determine the same, basing the finding on the attendant circumstances and matters relevant thereto. Slapping the face of another is slander by deed if the intention of the accused is to cause shame or humiliation. Fighting the offended party with intention to insult him is slander by deed. Pointing a dirty finger constitutes simple slander by deed. Slander by deed and acts of lasciviousness – distinguished by presence of lewd designs. If such is present, it is an act of lasciviousness. Slander by deed and maltreatment – the nature and effect of maltreatment determines the crime committed. If the offended party suffered from shame or humiliation caused by the maltreatment, it is slander by deed.

Where to file the criminal action? It depends on who the offended party is. If he is a public officer, the criminal action can only be instituted in either: (1) RTC of the province or city where the libelous article is printed and first published, OR (2) RTC of the province or city where he held office at the time of the commission of the offense

Slander by deed and unjust vexation – If it merely annoys and irritates, without any other concurring factor, it is unjust vexation. If the irritation or annoyance was attended by publicity and dishonor, it is slander by deed.

If he is a private person, the criminal action may be brought in: (1) RTC of the province or city where the libelous article is printed and first published, OR (2) RTC of the province or city where he actually resided at the time of the commission of the offense

ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL

(1) The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. (2) The author or editor of a book or pamphlet. (3) The editor or business manager of a daily newspaper magazine or serial publication. (4) The owner of the printing plant which

Civil and criminal action must be filed with the same court.

publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.

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Offended party must filed the complaint for defamation imputing a crime which cannot be prosecuted de officio.

utterance is unknown and the offender simply repeats or passes the same to blemish the honor or reputation of another

Libel imputing a vice or defect, not being an imputation of a crime, is always prosecuted upon information signed and filed by the fiscal. An action for exemplary damages in libel may be awarded if the action is based on quasi-delict.

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where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof

by which he directly incriminates or imputes to an innocent person the commission of a crime

As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence. If this act is resorted to, to enable officers to arrest the subject, the crime is unlawful arrest through incriminating innocent persons.

No remedy for damages for slander or libel in case of absolutely privileged communication. ARTICLE 361 - PROOF OF TRUTH

When admissible? (1) When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. (2) When the offended party is a Government employee, even if the imputation does not constitute a crime, provided it is related to the discharge of his official duties.

This crime cannot be committed through verbal incriminatory statements. Incriminating innocent person act of planting evidence and the like in order to incriminate an innocent person

Rule of actual malice: Even if the defamatory statement is false, NO liability can attach IF it relates to official conduct, UNLESS the public official concerned proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of WON it was false. That the publication of the article was an honest mistake is not a complete defense but serves only to mitigate damages where article is libelous per se.

Perjury by making false accusations

Defamation

giving of false statement under oath or making a false affidavit, imputing to the person the commission of a crime

public and malicious imputation calculated to cause dishonor, discredit, or contempt upon the offended party

ARTICLE 364 - INTRIGUING AGAINST HONOR

ARTICLE 362 - LIBELOUS REMARKS

(1) Intriguing against honor is referred to as gossiping: the offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party (2) This crime is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person.

(1) Libelous remarks or comments (2) connected with the matter privileged under the provisions of Art. 354, (3) if made with malice, (4) shall NOT exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability. Libelous remarks or comments on matters privileged, if made with malice in fact, do not exempt the author and editor.

Committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person.

CHAPTER II: INCRIMINATORY MACHINATIONS

Jurisprudence

ARTICLE 363 - INCRIMINATING INNOCENT PERSON

Intriguing against honor

Slander

Incriminating innocent person

Libel against a public official An open letter addressed to the stockholders of OPMC was the subject of a full-page advertisement published in 5 major daily newspapers. Coyiuto, Jr., wrote in his capacity as Chairman of the Board and

the source of the offender made offender defamatory the utterance, performs an act

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President of OPMC, that there was a sweetheart deal between Commissioner Mario Jalandoni of the PCGG and Rizal Commercial Banking Corp. (RCBC) to the prejudice of the Government .

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backdrop of the case, the oral defamation was only slight. The trial court believed the defamation to be deliberately done to destroy Atty. Escolango's reputation since the parties were political opponents. The trial court failed to appreciate the fact that the parties were also neighbors: that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner's anger was instigated by what Atty. Escolango did when petitioner's father died. In which case, the oral defamation was not of serious or insulting nature.

In the recent case of Vasquez v. Court of Appeals, et. al., the Court ruled that: "The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends."

In Reyes v. People, we ruled that the expression "putang ina mo" is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one's expression of profanity. We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger. Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter. [Rogelio Pader v. People (2000)]

Moreover, the Court has ruled in a plethora of cases that in libel cases against public officials which relate to official conduct liability will attach only if the public official concerned proves that the statement was made with actual malice, that is, with knowledge that it was false. Imputations regarding official conduct do not carry the presumption of malice, hence even if the defamatory statement is false, if malice was not proven, there is no libel. Here petitioner failed to prove actual malice on the part of the private respondents. Nor was the Court of the opinion that the open letter was written to cast aspersion on the good name of the petitioner.

Venue of criminal and civil actions in libel cases (Art. 360 and RA 4363 AN ACT TO FURTHER AMEND ARTICLE THREE HUNDRED SIXTY OF THE REVISED PENAL CODE) Alfie Lorenzo, Allen Macasaet, Nicolas Quijano, Jr., and Roger Parajes, columnist, publisher, managing editor, and editor, respectively of the newspaper "Abante" were charged before the RTC, with the crime of libel. Respondents tried to have the complaint dismissed on the basis that Trinidad, the complainant was not a resident of Quezon City but rather of Marikina. However, the RTC and the Court of Appeals upheld Trinidad.

The paid advertisement merely served as a vehicle to inform the stockholders of the goings-on in the business world and only exposed the irregularities surrounding the PCGG and RCBC deal and the parties involved. [Mario C.V Jalandoni v Secretary of Justice(2000)]

HELD: In criminal actions, it is a fundamental rule that venue is jurisdictional. Thus, the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.

Slander (Art. 358) Atty. Benjamin C. Escolango was conversing with his political leaders at the terrace of his house when Rogelio Pader appeared at the gate and shouted "putang ina mo Atty. Escolango. Napakawalanghiya mo!" The latter was dumbfounded and embarrassed. At that time, Atty. Escolango was a candidate for vice mayor in the 1995 elections. Atty. Escolango filed with the Municipal Trial Court a complaint against Pader for grave oral defamation. The MTC rendered decision convicting petitioner of grave oral defamation.

In the case of Uy v. Court of Appeals and People of the Philippines, this Court had the occasion to expound on this principle. It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases: (1) the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. (2) Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused.

HELD: Unquestionably, the words uttered were defamatory. Considering, however, the factual

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(3) Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. (4) Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. (5) And once it is so shown, the court may validly take cognizance of the case. (6) However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.

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individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. [Macasaet v. People (2005)] Unsealed letters Sending an unsealed libelous letter to the offended party constitutes publication. [Magno vs. People(2006)]

The law, however, is more particular in libel cases. The possible venues for the institution of the criminal and the civil aspects of said case are concisely outlined in Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363.

What constitutes publication; Fine Instead of Imprisonment There is publication in this case. In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.

In Agbayani v. Sayo, we summarized the foregoing rule in the following manner: (1) Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published. (2) If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense. (3) If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila. (4) If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.

Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary. It is enough that the author of the libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public. While Vaca case is for violation of B.P. 22, we find the reasons behind the imposition of fine instead of imprisonment applicable to petitioner’s case of libel. We note that this is petitioner’s first offense of this nature. He never knew respondent prior to the demand letter sent by the latter to Mrs. Quingco who then sought his assistance thereto. He appealed from the decision of the RTC and the CA in his belief that he was merely exercising a civil or moral duty in writing the letter to private complainant. In fact, petitioner could have applied for probation to evade prison term but he did not do so believing that he did not commit a crime thus, he appealed his case.

In the case at bar, private respondent was a private citizen at the time of the publication of the alleged libelous article, hence, he could only file his libel suit in the City of Manila where Abante was first published or in the province or city where he actually resided at the time the purported libelous article was printed.

We believe that the State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. Consequently, we delete the prison sentence imposed on petitioner and instead impose a fine of six thousand pesos.

This Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit: In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private

This is not the first time that we removed the penalty of imprisonment and imposed a fine instead in the crime of libel. In Sazon v. Court of Appeals, petitioner was convicted of libel and was meted a penalty of imprisonment and fine; and upon a petition filed

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with us, we affirmed the findings of libel but changed the penalty imposed to a mere fine. [Buatis vs. People (2006)]

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See Also: AC 08-2008: Re: Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases

Slight Oral Defamation The Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that: uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony. [Villanueva vs. People (2006)]

Title XIV. Quasi-Offenses ARTICLE 365 - IMPRUDENCE AND NEGLIGENCE Quasi-offenses punished: (1) Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; (2) Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; (3) Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; (4) Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.

Effect of Name-calling While it is true that a publication's libelous nature depends on its scope, spirit and motive taken in their entirety, the article in question as a whole explicitly makes mention of private complainant Rivera all throughout. It cannot be said that the article was a mere general commentary on the alleged existing state of affairs at the aforementioned public market. Rivera was not only specifically pointed out several times therein but was even tagged with derogatory names. Indubitably, this name-calling was, as correctly found by the two courts below, directed at the very person of Rivera himself. [Figueroa vs. People (2006)]

Imprudence

Negligence

Both indicate a deficiency of action Failure in precaution

Victim Identifiable The last element of libel is that the victim is identified or identifiable from the contents of the libelous article.

Failure in advertence

Imprudence or negligence is not a crime itself; it is simply a way of committing a crime. The rules for graduating penalties (under Art. 64) based on mitigating and aggravating circumstances are NOT applicable to offenses punishable thru criminal negligence.

In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough ifby intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to.

QUALIFYING CIRCUMSTANCE: failure to render immediate assistance to the injured party. This qualifying circumstance must be distinguished from 6 the punishable OMISSION under Article 275. 6

Art. 275. Abandonment of person in danger and abandonment of one's own victim. — The penalty of arresto mayor shall be imposed upon: 1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. 2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured. 3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place.

Kunkle v. Cablenews-American and Lyons laid the rule that this requirement is complied withwhere a third person recognized or could identify the party vilified in the article. [People vs. Ogie Diaz (2007)]

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The measure of the damage should be the difference in value of property immediately before the incident and immediately after the repair.

If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is RECKLESS. If it could hardly be perceived, the criminal negligence would only be simple.

Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence.

Criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. THEREFORE, even if there are several results arising from ONLY ONE CARELESSNESS, the accused may only be prosecuted under one count for the criminal negligence. Otherwise, double jeopardy would arise.

The penalties provided in art. 365 are not applicable in the ff. cases: 1) when the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of art. 365, in which case the courts shall impose the penalty next lower in degree that that which should be imposed, in the period which they may deem proper to apply.

Reckless Imprudence: (1) The offender does or fails to do an act (2) The doing of or the failure to do the act is voluntary (3) It be without malice (4) Material damage results (5) There is inexcusable lack of precaution on the part of the offender, taking into consideration: (a) His employment/occupation (b) Physical condition (c) Degree of intelligence (d) Other circumstances regarding the persons, time and place

2) When, by imprudence or negligence and with violation of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. When death or serious bodily injury to any person has resulted, the motor vehicle driver at fault shall be punished under the Penal Code. Contributory negligence is not a defense. It only mitigates criminal liability.

NOTE: (1) Reckless Imprudence Resulting in Homicide (2) Resulting in Physical Injuries

Doctrine of last clear chance The contributory negligence or the party injured will not defeat the action is it be shown that the accused might, by exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party.

Inexcusable lack of precaution Factors to be considered in determining inexcusable lack of precaution: 1) Employment or occupation 2) Degree of intelligence and physical condition of the offender; and 3) Other circumstances regarding persons, time, and place.

Emergency rule An automobile driver who, by negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such situation might make even though he did not make the wisest choice.

Simple Imprudence (1) There is lack of precaution on the part of the offender (2) The damage impending to be caused is not immediate or the danger is not clearly manifest.

Violation of a rule or regulation or law is proof of negligence. But negligence cannot be predicated upon the mere fact of minority or lack of an operator’s license.

Test of negligence: Would a prudent man, in the position of the person to whom negligence, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions against its mischievous results, and the failure to do so constitutes negligence.

The penalty next to higher in degree is imposed if the offender fails to lend on the spot help to the injured parties. (5) Failing to lend help is a qualifying circumstance.

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Jurisprudence: The gravamen of SIMPLE NEGLIGENCE is the failure to exercise the diligence necessitated or called for by the situation which was NOT immediately lifedestructive BUT which culminated, as in the present case, in the death of a human being 3 days later. [Carillo v. People (1994)]

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HELD: It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the victim was consented to by the victim's parents. With the permission of the victim's parents, accused-appellant Carmen, together with the other accused-appellants, proceeded to subject the boy to a "treatment" calculated to drive the "bad spirit" from the boy's body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal intent to kill the boy.

MEDICAL MALPRACTICE, which is a form of negligence, consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances (this is the test applied). [Garcia-Rueda v. Pascasio (1997)]

Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder.

Elements involved in medical negligence cases: (D.B.P.I.) (1) Duty (2) Breach (3) Injury (4) Proximate causation

Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act.

Requisites for the application of res ipsa loquitur: (1) The accident was of a kind which does NOT ordinarily occur UNLESS someone is negligent; (2) The instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) The injury suffered must NOT have been due to any voluntary action or contribution of the person injured.

Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is: the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care.

The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioners, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing. [People v. Carmen (2001)]

HOWEVER, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. [Reyes v. Sis. of Mercy Hospital (2000)] While playing one day, a child-Honey Fe heard a commotion from a nearby house and went to investigate. She saw Randy Luntayao being tortured and killed by Alexander Sibonga, Reynario Nuñez, Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie. Apparently it was a ritual supposed to cure him of demonic possession. The father of the boy filed charges against the participants, and the child who witnessed the macabre incident testified as to what she saw. The trial court convicted the participants of murder.

The trial court found the accused "guilty beyond reasonable doubt of the crime of Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136)." HELD: There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court was misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional, as maximum."

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This is erroneous because in reckless imprudence cases, the actual penalty for criminal negligence bears no relation to the individual wilful crime or crimes committed, but is set in relation to a whole class, or series of crimes. Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become final and executory.

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for the operation. Surgery was performed but Lourdes never regained consciousness and expired five days later. The trial court convicted Teofilo Abueva for Reckless Imprudence resulting in Homicide. HELD: After a careful review of the records, the Court agrees with the factual findings of the lower courts showing that the victim, Lourdes Mangruban, fell rather than jumped off the bus.

Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense, and dealt with separately from wilful offenses. It is not a question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, and lack of care or foresight, the imprudencia punible.

The prosecution has provided sufficient, clear and convincing basis for the conclusion that Lourdes fell off the bus due to the reckless act of the petitioner. Article 365 of the Revised Penal Code states that reckless imprudence consists in: (1) voluntarily, but without malice, (2) doing or failing to do an act from which (3) material damage results (4) by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, (5) taking into consideration: (a) his employment or occupation; (b) his degree of intelligence; (c) his physical condition; and (d) other circumstances regarding persons, time and place.

Much of the confusion has arisen from the common use of such descriptive phrase as 'homicide through reckless imprudence', and the like; when the strict technical sense is, more accurately, 'reckless imprudence resulting in homicide'; or 'simple imprudence causing damages to property'." [Rafael Reyes Trucking v People (2000)] FACTS: Ireneo, Abundio and Lourdes Mangruban were with their paralyzed aunt at a bus terminal. Lourdes Mangruban was tasked to accompany their paralyzed aunt to Butuan City. A dispatcher informed them that a bus bound for Tacloban via Cebu and Butuan was about to leave. They were told to wait as the bus maneuvered to its proper position prior to departure. The said bus, driven by Teofilo Abueva, came to a full stop in front of the terminal building. As they negotiated their way towards the back of the bus, Lourdes, with luggage in hand, was waiting on the first stepboard when the bus suddenly moved. Due to the sudden movement, according to the witness, Lourdes fell off the bus and hit her head on the cement pavement below.

Petitioner herein is a professional driver who has been in the employ of the bus company for 18 years 26 and has undergone training courses and seminars to improve his skills as a driver. He is expected to be well aware of his responsibilities to his passengers. Not only must he make sure that they reach their destinations on time, he must also ensure their safety while they are boarding, during the entire trip, and upon disembarking from the vehicle. [Abueva v. People (2002)] FACTS: "In the evening of February 16, 1990, Pat. Domingo Belbes and Pat. Jose Pabon were assigned to maintain peace and order at the Junior and Senior Prom of Pili Barangay High School. Around 9:00 p.m. while Teacher-In-Charge Mila Ulanca, Pat. Pabon and Belbes were watching the dance, two students approached Mrs. Ulanca and said "Ma'm, it seems that there is somebody making trouble." Pat. Belbes and Pat. Pabon, armed with an Armalite rifle and a .38 caliber revolver, respectively, responded forthwith. Moments after the two police officers left, bursts of gunfire filled the air.

According to the witness, the driver did not disembark to assist Lourdes, while a dispatcher of the bus company assured them that there was nothing to worry about because the victim was not bleeding. Petitioner continued driving per his scheduled trip. Lourdes was taken to the San Pedro Hospital where a brain scan revealed the presence of a blood clot that needed immediate surgery. The bus company refused to give financial assistance to the Mangrubans. On their own, the family raised the amount required by the hospital as downpayment

Fernando Bataller, a graduating student was hit on different parts of his body and died. The accused Pat. Belbes stated that they acted in self defense. The

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trial court convicted Pat. Belbes of murder and sentenced him to reclusion perpetua. HELD: The offense is definitely not reckless imprudence resulting in homicide because the shooting was intentional. Illustrations of reckless imprudence resulting in homicide are: (1) exhibiting a loaded revolver to a friend, who was killed by the accidental discharge brought about by negligent handling; or (2) discharging a firearm from the window of one's house and killing a neighbor who just at the moment leaned over the balcony front; or (3) where the defendant, to stop a fist fight, fired his .45 caliber pistol twice in the air, and, as the bout continued, he fired another shot at the ground, but the bullet ricocheted and hit a bystander who died soon thereafter. In this case, appellant intended to fire AT the victim, and in fact hit ONLY the victim. [People v. Belbes (2000)] Effect of Victim’s Contributory Negligence Finally, as to petitioners’ argument that Jesus Basallo (Victim; deceased) should be presumed negligent because he was driving with an expired license and the passenger jeepney owned by his brother Teodorico did not have a franchise to operate, we hold that the same fails to convince. “The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence.” [Manzanares vs. People (2006)]

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