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CHAPTER XII

Student Rights and the Penal System


The purpose of this chapter is to inform and help readers, particularly non-lawyers, students and school personnel understand the penal laws specifically applicable to students or in a school setting. While it may be true that a student can commit any crime in the Revised Penal Code, this chapter aims to discuss more comprehensively specific felonies and crimes usually committed by or against students inside the school campus or outside thereof while attending or participating in school related or authorized activities. It is hoped that knowledge of these penal laws would be an effective deterrent for both students and other school community members to commit the crimes.

Concept of Crime
By definition, a crime is an act committed or omitted in violation of public law forbidding or commanding it.1 A reading of the definition would give us the two basic components of a crime, that is, first, there must be an act or omission and second, that the act or omission is considered a violation of a public law. Furthermore, Luis B. Reyes cites the three main characteristics of criminal law, each subject to several exceptions, to wit: a. It must be of general application in a sense that the law is binding on all persons who live or sojourn in the Philippines. b. It undertakes to punish crimes committed within the Philippine territory.

1 I Bouviers Law Dictionary, Rawles Third Revision, 729.


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c. It must be of prospective application.2


There are two important theories of criminal law. These are the classical theory and the positivist theory. 3 The classical theory posits that the basis of human liability is free will and that the purpose of the penalty is retribution.4 It stresses that man is essentially a moral being with the free range to choose between good and evil. Thus, it places more stress upon the result or effect of the felonious act than upon the actor, the criminal himself/herself.5 On the other hand, the positivist theory states that man is occasionally subdued by a strange and morbid phenomenon, which constrains him to do wrong in spite of or contrary to his volition.6 Hence, as the crime is treated as a natural social phenomenon, it cannot be treated or checked by the application of abstract principles of law but rather through the enforcement of individual measures in each particular case after a thorough investigation. Hence, the purpose of the penalty is reformation.7 Thus from the above, it must be noted, that for a student to be criminally liable, he must attain a certain maturity. As a general rule, under the Revised Penal Code a child below nine years old is not criminally liable. 8 Presently however, by virtue of Section 6 of the new Juvenile Justice and Welfare Act of 2006, 9 a child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.

Direct / Indirect Assault


The provision on assaults can be found in the Revised Penal Code, to wit:
Art. 148. Direct assaults. Any person or persons who,

6.

2 The Revised Penal Code-Criminal Law Book One, Luis B. Reyes, 2001 ed., p.

3 Reyes, Luis B.: The Revised Penal Code- Criminal Law Book 1; 14th Revised Edition, 1998, p. 21. 4 Ibid., p. 20. 5 Ibid. 6 Ibid. 7 Ibid. to Footnote 2 pp. 22 and 23. 8 Article 12 (2) revised Penal Code. 9 Republic Act No. 9344, 28 April 2006.

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without a public uprising, shall employ force or intimidation for the attainment of any of the purpose enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding P1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding P500 pesos shall be imposed. Art. 149. Indirect assaults. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 pesos shall be imposed upon any person who shall make use of force or intimidation upon any person coming to the aid of the authorities or their agents on occasion of the commission of any of the crimes defined in the next preceding article.

In ordinary parlance, direct assault is committed when a person shall employ force or intimidation for the attainment of any of the purposes of committing rebellion or sedition or attack or seriously intimidates or resists any person in authority or any of his agents. Clearly from Article 148 as quoted above there are two (2) ways of committing the crime of direct assault: 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; and 2) 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 the occasion of such performance. 10 Considering that students in school are prone to commit rebellion or sedition, we shall deal only on the second way of committing direct assault, that is, the serious attack on a person in authority. And to fully understand the same, the first basic question that needs to be asked is
10 Reyes, Luis B., The Revised Penal Code: Criminal Law Book II, page 133, 1998 Edition.

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Who is a person in authority?


A person in authority is one who is directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission.11 While on the other hand, an agent of a person in authority is one who is generally charged with the maintenance of public order and the protection of life and property. 12 In this connection, it must be emphasized that a teacher, professor or any person charged with the supervision of public or duly recognized private schools, colleges and universities is considered a person in authority. The Revised Penal Code of the Philippines provides in no uncertain terms
Art. 152. Persons in authority and agents of persons in authority; Who shall be deemed as such. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. A person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as a barrio councilman, barrio policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority.13

The reason for giving protection to teachers was explained in the case of People vs. Ceprioso, 14 where it stated that respect for teachers is required of all persons, whether pupils, parents or
11 Ibid., p. 137. 12 The Revised Penal Code Criminal Law Book Two, Luis B. Reyes, 1998 ed., p. 137. 13 As amended by PD No. 299, Sept. 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985. 14 C.A., 52 O.G. 2609.

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otherwise, if we are to uphold and enhance the dignity of the teaching profession which the law similarly enjoins upon all persons for the sake of the pupils and the profession itself. The law therefore gives to the teacher the protection, dignity and respect while in the performance of their official duties. A teacher has the duty to discipline students and in connection therewith, may impose reasonable sanctions and penalties. Such authority is inherent to the position of the teacher. 15 Hence, while imposing punishment on students for their misconduct or misbehavior, the teacher is not in any way stripped of his or her position being in person in authority.16 Furthermore, ignorance on the part of an accused that the teacher is a person in authority does not in anyway exempt the said accused from being liable for an assault against a person in authority. Thus, in People vs. Balbar,17 Tiburcio Balbar allegedly entered the room where schoolteacher Ester Gonzalez was conducting her classes. Without warning and right after complainant had finished writing on the blackboard, defendant allegedly placed his arms around her and kissed her on the eye. Shocked, complainant instinctively pushed Balbar away and tried to flee. Defendant allegedly brought out his "daga" (a local dagger) and pursued complainant, catching up with her before she was able to get out of the room. Defendant embraced her again, at the same time holding on to his "daga." They both fell to the floor, as a result of which complainant sustained slight physical injuries. Hence, an information for direct assault was filed. The lower court quashed the information for the reason that Balbar did not know that Gonzalez was a teacher. Thus, the crime is only unjust vexation. The Supreme Court ruled:
Direct assault is committed "by any person or persons who, without a public uprising, x x x shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance." (See Art. 148, Revised Penal Code) By express provision of law (Com. Act No. 578, now part of

15 People vs. Javier, CA-G.R. No. 6203, Oct 28, 1940; People vs. Padua, C.A., 49 O.G. 156. 16 Ibid. 17 21 SCRA 1119.

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Article 152 of the Revised Penal Code, as amended by Republic Act No. 1978), "teachers, professors, and persons 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 Article 148." This special classification is obviously intended to give teachers protection, dignity, and respect while in the performance of their official duties. The lower court, however, dismissed the information on the ground that there is no express allegation in the information that the accused had knowledge that the person attacked was a person in authority. This is clearly erroneous. Complainant was a teacher. The information sufficiently alleges that the accused knew that fact, since she was in her classroom and engaged in the performance of her duties. He therefore knew that she was a person in authority, as she was so by specific provision of law. It matters not that such knowledge on his part is not expressly alleged, complainant's status as a person in authority being a matter of law and not of fact, ignorance whereof could not excuse noncompliance on his part (Article 3, Civil Code). This article applies to all kinds of domestic laws, whether civil or penal (De Luna vs. Linatoc, 74 Phil. 15) and whether substantive or remedial ( Zulueta vs. Zulueta, I Phil. 254) for reasons of expediency, policy and necessity.

Also in the case of people vs Lydia C. Gelig, the above-named accused, did, then and there, willfully, unlawfully, and feloniously assault, attack, employ force and seriously intimidate one Gemma B. Micarsos a public classroom teacher of Nailon Elementary School while in the performance of official duties and functions as such which acts consequently caused the unintentional abortion upon the person of the said Gemma S. Micarsos. The court ruled

Gemma being a public school teacher, belongs to the class of persons in authority expressly mentioned in Article 152 of the Revised Penal Code, as amended.
18

On the other hand, in People vs. Gamo,19 the Supreme Court ruled that direct assault is not committed when the teacher is not in the performance of his/her duties. In this case, the teacher went out of the classroom to talk to a person on personal matters. Moreover, it was not proven that the attack was done in relation to the function of the teacher. Also in the case of People vs. Jingco,20 a teacher who went out of his classroom to talk to his creditor about his unpaid
18 G.R. No. 173150. July 28, 2010. 19 C.A.-G.R. No. 5110-R, October 24,1950. 20 63 O.G. 4443, May 22, 1967.

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accounts was declared not to be in the performance of his official duties as a teacher, and hence no direct assault was committed. The crime of indirect assault is committed when a person who aids a person in authority is the one who is attacked or intimidated. In the school setting, the crime is usually illustrated by a scenario where a student tries to attack a teacher and another student comes in to help the teacher resulting in a fight between both students. In this instance, the attacking student is guilty of indirect assault against the aiding student and direct assault against the teacher, if he is successful in attacking both. Lastly, another felony related to assault is the crime of resistance and serious disobedience to a person in authority. The law provides:
Art. 151. Resistance and disobedience to a person in authority or the agents of such person. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who not being included in the provisions of the preceding articles shall resist or seriously disobey any person in authority, or the agents of such person, while engaged in the performance of official duties. When the disobedience to an agent of a person in authority is not of a serious nature, the penalty of arresto menor or a fine ranging from 10 to P100 pesos shall be imposed upon the offender.

From the above, the following may be considered as the elements of the offense as described in the first paragraph thereof, to wit (1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; (2) That the offender resists or seriously disobeys such person in authority or his agent; (3) That the act of the offender is not included in the provisions of Article 148, 149 and 150.21 The juridical conception of the crime of resistance and disobedience to a person in authority or his agents consists in a failure to comply with orders directly issued by the authorities in the
21 Ibid to Footnote 12, page 154.

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exercise of their official duties. 22 The phrase in the exercise of official duties indicates the rule that in this crime, the person in authority or agent of such person must be in the actual performance of his official duties. This is so, because there can be no resistance or disobedience when there is nothing to resist or to disobey.23 But when a person in authority or his agent is in the performance of his duty or gives an order and the performance of duty is resisted or the order is disobeyed, then the crime is committed.24 As explained above, a teacher while performing his/her official duties is, by law, a person in authority. Hence, a student or any person for that matter resists the performance of the teacher of the duty or the order of the teacher is disobeyed, then the student or the person is guilty of the offense. It must be noted here however, that the accused must have knowledge that the party performing a duty is a person in authority, otherwise the crime is not committed.

Public Disorders
The next groups of felonies are usually related to student activism. For the felonies under this title are commonly committed by students who, in the exercise of their right to free speech or expression, go to the extreme of causing public turmoil or upheaval. As a rule, every person has the right to live in peaceful circumstances. Hence, if there are any episodes or events that shatter the peaceful existence of the citizenry without any justifiable cause, the law looks upon it with disfavor and punishes the ones committing the same. The more serious felony is the crime of tumults and other disturbances, to wit:
Art. 153. Tumults and other disturbance of public orders; Tumultuous disturbance or interruption liable to cause disturbance. The penalty of arresto mayor in its medium period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon any person who shall cause any serious disturbance in a public place, office, or establishment, or shall interrupt or disturb public performances, functions or gatherings, or peaceful meetings, if the act is not

22 Ibid. citing the case of U.S. vs. Ramayrat, 22 Phil. 183. 23 Ibid. 24 Ibid.

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included in the provisions of Articles 131 and 132. The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. The disturbance or interruption shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence. The penalty of arresto mayor shall be imposed upon any person who in any meeting, association, or public place, shall make any outcry tending to incite rebellion or sedition or in such place shall display placards or emblems which provoke a disturbance of the public order. The penalty of arresto menor and a fine not to exceed P200 pesos shall be imposed upon these persons who in violation of the provisions contained in the last clause of Article 85, shall bury with pomp the body of a person who has been legally executed.

Accordingly, the provision states that this felony is committed when a person causes any serious disturbance in a public place, interrupts or disturbs any peaceful meeting, makes an outcry tending to incite rebellion or sedition, displays placards or emblem provoking the disturbance of the public order or burying with pomp a legally executed person. It finds relevance in the school setting in light of the resurgence of student activism and the inclination of some student activists to be more forceful in the redress of their grievances. It is therefore not common for these individuals to use means or tactics to disrupt classes or even make statements that tend to incite others to rebel. The more prevalent felony on public disorder that is usually committed by students is the crime of alarms and scandals. The Revised Penal Code provides:
Art. 155. Alarms and Scandals. The penalty of arresto menor or a fine not exceeding P200 pesos shall be imposed upon: 1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosives calculated to cause alarm or danger; 2. Any person who shall instigate or take an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; 3. Any person who, while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace; or

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4. Any person who, while intoxicated or otherwise, shall cause any disturbance or scandal in public places, provided that the circumstances of the case shall not make the provisions of Article 153 applicable

From the above there are four (4) ways the crime of Alarms and Scandals are committed1. Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm or danger. 2. Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility. 3. Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements. 4. Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Art. 153 of the Revised Penal Code is not applicable. Under the first paragraph, the discharge of the firearm should not be aimed at a person; otherwise, the offense would fall under Article 254 of the Revised Penal Code also, punishing discharge of firearm.25 The discharge of any firearm, rocket, etc., in ones garden or yard located in the town is punished also by the above provision, as long as it produced alarm or danger. 26 However, the discharge of firecrackers or rockets during fiestas or festive occasions would not be covered by the provision.27 The term "charivari" includes a medley of discordant sounds, a mock serenade of discordant noises made on kettles, tin, horns, etc., designed to annoy and insult.28 The reason for punishing instigating or taking active part in charivari and other disorderly meeting is to prevent more serious disorders.29 It is to be noted that if the disturbance is of a serious nature, the
25 Reyes, Luis B.: The Revised Penal Code: Criminal Law Book II, 14 th Edition, 1998, page 169. 26 Ibid. 27 Ibid., citing Viada (3 Viada, Codigo Penal, 4th Ed., pp.711-712) 28 Ibid. 29 Ibid.

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case will fall under Article 153, and not under paragraph of Article 155. Hence, the act of a person who hurled a general insult at everybody, there being 30 persons in the hall, and challenged the owner of the billiard hall to a fight, causing commotion and disorder so that the billiard game had to be stopped momentarily, constitutes merely a violation of Art. 155, par. 4, not of Art. 153. While the billiard hall is a public place there was no serious public disorder caused.30

Falsification and Use of Falsified Documents


Falsification is relevant in the school setting due to the increase in the instances where school records, diplomas and transcript of records are falsified to make it appear that certain persons are graduates or took some units in a certain school. The use of falsified school records is usually in connection with employment opportunities or for transfer/ enrollment to another institution. Hence, it is relevant to discuss the salient features of this felony. One should be reminded, that in the Manual of Regulations for Private Schools, 31 a student that forges or tampers with school records or school forms, and secures or uses forged school records, forms and documents may be expelled from the school.32 Expulsion is an extreme penalty on an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary of Education or of the Commission on Higher Education.33 The crime of falsification is committed when a person performs any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts;
30 People vs. Gangay, C.A., 40 O.G., Supp. 12, 171. 31 DepEd Order No. 92, series of 1992. 32 Ibid. Section 77 (c). 33 Ibid.

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5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 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; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.34 The provisions on falsification provides:
Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.

Three (3) acts are punished under the above provision 1. Falsification of public, official or commercial document by a private individual (paragraph 1); 2. Falsification of private document by any person (paragraph 2); and 3. Use of the falsified document. (Last paragraph).

Falsification of a Public, Official or Commercial Document


34 Article 171, revised Penal Code.

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From the above the document falsified must be public, official or commercial. A public document is a document created, executed or issued by a public official in response to the exigencies of the public service, or in the execution of which a public official intervened. 35 It includes any instrument authorized by a notary public or a competent official, with the solemnities required by law.36 Hence, any school document that is notarized or acknowledged by the person who may have prepared or executed the same in the presence of a notary public shall be considered as a public document. On the other hand, an official document is any instrument that is issued by a public official in the exercise of the functions of his office. 37 An official document is also a public document. The certificate of Special Order issued by the DepEd or the CHED in favor of each student that may have completed a course in Secondary Education or a Bachelors Degree in College is an official document. Finally a commercial document is any document defined and regulated by the Code of Commerce of the Philippines.38 Examples of these documents are the following:

a) b) c) d) e) f) g)

Quedans or warehouse receipts.39 Customers order to a stockholder.40 Bank checks.41 Cash files, deposit slips and bank statements.42 Journals, books, ledgers.43 Drafts, letters of credit, and other negotiable instruments.44 Air way bills. They are in the nature of bills of lading. Commercial documents are, in general, documents or

35 U.S. vs. Asensi, 34 Phil. 765. 36 Cacnio, et. Al. vs. Baens, 5 Phil. 742. 37 Ibid., Footnote to No. 29. 38 People vs. Co Beng, C.A., 40 O.G. 1913. 39 People vs. Cu Unjieng, 61 Phil. 236. 40 Nassiff vs. People, 73 Phil. 69. 41 People vs. Wilson and Dolores, 52 Phil. 919. 42 People vs. Benito, 57 Phil. 587. 43 People vs. Lerma, 44 Phil. 471. 44 Viada, 2 Cod. Pen., 419-420.

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instruments which are used by merchants or businessmen to promote or facilitate trade.45 Note that in paragraph 1 of Article 172, damage or intent to cause damage to another is not necessary. 46 In the falsification of public or official document, whether by public officials or private persons, it is not necessary that there be present the idea of gain or the intent to cause damage to a third person, for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed.47 Likewise, existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document.48 This statement applies as well to commercial documents, because as to this kind of document, a credit is sought to be protected.49

Falsification of Private Document


Falsification of a private document under paragraph 2 of Article 172 involves the following elements1) That the offender committed any of the following acts of falsification as enumerated in Art. 171, (as quoted above also) 2) That the falsification was committed in any private document. 3) That the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. Mere falsification of private documents is not enough. The falsification must have caused damage to another or at least was committed with the intention to damage others. Hence, if an individual falsified a receipt by counterfeiting the signature of the creditor thereon and, after keeping it in his house for sometime, without delivering or showing it to anyone, destroyed it, he did not
45 People vs. Lizares, C.A., 65 O.G. 7174, citing 2 Viada Codigo Penal, 419420. 46 Ibid., to Footnote 20, page 238. 47 Decision of the Supreme Court of Spain of Dec. 23, 1886, cited in People vs. Pacana, 47 Phil. 56. 48 Siquian vs. People, 171 SCRA 223. 49 Ibid to Footnote 20, page 238.

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prejudice anyone by the mere fact of having made it.50 No crime of falsification of private document was committed. Therefore, two things are required: 1) He must have counterfeited the false document. 2) He must have performed an independent act that operates to the prejudice of a third person. With the intent to cause such damage means that the offender performs some other independent act in order to make use of itan act which, while it does not result in prejudice to a third party, has been done nevertheless with the intention of causing such prejudice. 51 To give meat to the provision, the case of In Re: Juan T. Publico52 is illustrative. The records disclose that Juan Tapel Publico filed a petition to take the Bar Examination in 1960 after failing in the 1959 Bar Examination. His uncle, Dulcisimo B. Tapel, opposed the petition alleging that his nephew is not a person of good moral character for having misrepresented, sometime in 1950, when he was sixteen (16) years of age, that he was eligible for Third Year High School at the University of Manila, by utilizing the school records of his cousin and namesake, Juan M. Publico when, in actual fact, petitioner had not completed Grade VI of his elementary schooling, much less, First and Second Year High School. When required to file a formal Complaint, Dulcisimo Tapel instituted an administrative case against his nephew for falsification of school records or credentials. In the meantime, Juan T. Publico took the 1960 Bar Examination, passed it, took the lawyer's oath, and signed the Roll of Attorneys. However, the name of the petitioner was stricken off the Roll of Attorneys. On April 17, 1974, Juan T. Publico filed his second Petition for Reinstatement stating that the Complaint for disbarment against him had been withdrawn by the complainant, but that the Legal Officer Investigator proceeded with the hearing ex-parte; that he was unable to cross-examine the witnesses against him as he was unaware of the ex parte proceedings until he was informed by the Legal Officer
50 Ibid. 51 See U.S. vs. Paraiso, 1 Phil. 127. 52 102 SCRA 721 (1981).

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Investigator about the same; that he had suffered so much already and to let him suffer perpetual disqualification would not be in consonance with the program of the New Society. He prayed that his name be reinstated in the Roll of Attorneys, or that the case be reopened so that he could cross-examine the witnesses against him and clear himself of the charges. This Court denied his Petition in its Resolution of April 23, 1974. After he tried to be reinstated several times the Supreme Court finally ruled to order his reinstatement, but made the following pronouncement:
For consideration now is petitioner's fifth plea for reinstatement filed on June 1, 1979 in addition to a letter-petition addressed to Chief Justice Enrique M. Fernando dated November 3, 1979. In this Petition, Juan T. Publico avers that his enrollment in Third Year High School in Manila was through the initiative of his uncle, Dulcisimo B. Tapel, who accompanied him to school and enrolled him in a grade level above his qualifications in spite of his rernonstrations; that the misrepresentation committed about his academic records, was not his own fault alone, but was precipitated by his uncle, who as member of the faculty of the Catanduanes Institute had access to the records of the school; that being merely sixteen years of age, he could not be expected to act with discernment as he was still under the influence of his uncle, who later on caused his disbarment; that he had conducted himself in a manner befitting a member of the bar; that he had striven to serve the people and the government as shown by the positions he held as Municipal Attorney of San Miguel, Catanduanes, Deputy Register of Deeds of Catanduanes, Election Registrar of the Commission on Elections, and Editorial Assistant in the Editorial Staff of the defunct House of Representatives, and presently as faculty member of the Polytechnic University of the Philippines, State University. Additionally, petitioner submitted evidence purporting to show his honesty and integrity and other manifestations of his good moral character, particularly, the Resolution dated March 30, 1979 of the Integrated Bar of the Philippines, Catanduanes Chapter (Annex A); the Resolution dated April 16, 1979 of the Sangguniang Bayan of San Miguel, Catanduanes (Annex B); the letter of the Municipal Mayor of San Miguel, Alejandro T, Tatel, addressed to the late Chief Justice Castro dated April 17, 1979 (Annex B-1), all attesting to his good character and standing in the community and his capability as a lawyer. Further submitted are certifications issued by the different government offices: Court of First Instance of Catanduanes (Annex C); Catanduanes Integrated National Police Command (Annex F should be D); Office of the Provincial Fiscal at Virac, Catanduanes (Annex F), and First Municipal Circuit Court, Bato San Miguel, Bato, Catanduanes (Annex E), certifying that petitioner has not been accused nor convicted of any crime. xxx xxx xxx

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"Whether or not the applicant shall be reinstated rests to a great extent in the sound discretion of the court. The court action will depend, generally speaking, on whether or not it decides that the public interest in the orderly and impartial administration of justice will be conserved by the applicant's participation therein in the capacity of an attorney and counselor at law. The applicant must, like a candidate for admission to the bar, satisfy the court that he is a person of good moral character - a fit and proper person to practice law. The court will take into consideration the applicant's character and standing prior to the disbarment, the nature and character of the charge for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement. (5 Am. Jur., Sec. 301, p. 443) Almost nineteen (19) years, by February 23, 1981, shall have elapsed since petitioner was barred from exercising his profession. Cognizant that the power to discipline, especially if amounting to disbarment, should be exercised on the preservative and not on the vindictive principle, we find that the evidence submitted by petitioner, particularly, the testimonials presented on his behalf, as listed heretofore, his good conduct and honorable dealings subsequent to his disbarment, his active involvement in civic, educational, and religious organizations, render him fit to be restored to membership in the Bar, and that petitioner has been sufficiently punished and disciplined.

A reading of the ruling would bring us to the conclusion that even though the petitioner was later reinstated, the mere fact that his name was stricken off the Roll of Attorneys due to the falsification is testament to the gravity of the offense committed.

Falsification of Certificates
In law, a certificate is any writing by which testimony is given that a fact has or has not taken place.53 The Revised Penal Code specifically includes in its provisions a felony in relation to issuing and using false medical certificates and the like and the use thereof. It provides:
Art. 174. False medical certificates, false certificates of merits or service, etc. The penalties of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed P1,000 pesos shall be imposed upon: 1. Any physician or surgeon who, in connection, with the practice of his profession, shall issue a false certificate; and 2. Any public officer who shall issue a false certificate of merit

53 Bouviers Law Dictionary, page 442.

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of service, good conduct or similar circumstances. The penalty of arresto mayor shall be imposed upon any private person who shall falsify a certificate falling within the classes mentioned in the two preceding subdivisions. Art. 175. Using false certificates. The penalty of arresto menor shall be imposed upon any one who shall knowingly use any of the false certificates mentioned in the next preceding article.

In Article 174 above, the following persons are liable for falsification of certificates (1) Physician or surgeon who, in connection with the practice of his profession, issued a false certificate. It must refer to an illness or injury of a person. Hence, a physician who issues a false medical certificate to a student to excuse the latter from attending some school related activity or excuse him from taking an examination is guilty of this felony known as False Medical Certificate by a physician. (2) Public officer who issued a false certificate of merit or service, good conduct or similar circumstances is guilty of the felony referred to as False Certificate of Merit or Service by a public officer. (3) Private individual who falsified a certificate fallingf in the classes mentioned above. This crime is known as False Medical Certificate by a private individual or False Certificate of Merit or Service by a private individual.54 In the case of U.S. vs. Michelena 55 the accused was fond guilty of Falsification of Certificate of Merit when in his application to the Civil Service Board for examination a document printed in accordance with the form prescribed by said Board, and in that part thereof which contained recommendations of the applicant, certificate No.3 appeared to be subscribed by Frank. N. West, when the latter in fact having neither subscribed it nor written the contents thereof, the same not being correct in some respects, viz., as regards the age of the party certifying and the length of time during which he knew the candidate recommended. Finally, in Article 175, the crime is committed if the following elements are present
54 Ibid., pages 250-251. 55 4 Phil 492.

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(1) That a physician or surgeon had issued a false medical certificate, or a public officer had issued a false certificate of merit or service, good conduct, or similar circumstances, or a private person had falsified any of the said certificates; (2) That the offender knew that the certificate was false; and (3) That he used the same. Students must be made aware therefore that the use of any the falsified certificates as mentioned above in school shall make them criminally liable for the felony defined and penalized in Article 175.

Usurpation
Usurpation is an act of misrepresenting oneself to be that of another person with authority, rank or class. This is relevant with regard to student rights due to the proliferation of certain commercial sex workers dressing up in school uniform to excite their clientele into believing they were actually students or just to have access to the school campus and/or facilities, or the practice of some female students dressing up in school uniforms not of their own schools and engage in scandalous activities to besmirch the name of the school whose uniform they used. According to the Revised Penal Code:
Art. 179. Illegal use of uniforms or insignia. The penalty of arresto mayor shall be imposed upon any person who shall publicly and improperly make use of insignia, uniforms or dress pertaining to an office not held by such person or to a class of persons of which he is not a member.

To be guilty of the offense, the following elements must be present (1) The offender makes use of insignia, uniform or dress; (2) That the insignia, uniform or dress pertains to an office not held by the offender or to a class of persons of which he is not a member; and (3) That said insignia, uniform or dress is used publicly and

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improperly.56 To be liable under Article 179, the offender need not use an exact imitation of the uniform or dress. A colorable resemblance calculated to deceive the common run of peoplenot those thoroughly familiar with every detail or accessory thereofis sufficient.57

Drug Use and Possession


Drug use has not only been society's ill but a major headache of every educational institution. The malaise of drug addiction has consistently been a scourge that threatens the future of every student. Hence, the State has made it a point to be harsh in its treatment not only of drug users but especially of drug pushers. In the early chapters, it was made clear that the school has every right to search a student entering the school campus. If the search would yield the presence of dangerous drugs, the school administration has the option to administratively sanction or even expel the student. However, the school may also opt to choose a criminal prosecution. Thus, it can resort to the provisions of the Dangerous Drugs Act of 2002 or Republic Act No. 9165. The pertinent provisions of the Dangerous Drugs Act applicable to students are as follows:
Sec. 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body: Provided, That in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guidelines thereof. The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes

56 Ibid., page 263. 57 People vs. Romero, C.A. 58 O.G. 4402.

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enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act. Sec. 13. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. Any person found possessing any dangerous drug during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons, shall suffer the maximum penalties provided for in Section 11 of this Act, regardless of the quantity and purity of such dangerous drugs. Sec. 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings. - The maximum penalty provided for in Section 12 of this Act shall be imposed upon any person, who shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two (2) persons. Sec. 15. Use of Dangerous Drugs. A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.

Dangerous drugs refers to either:

1) Prohibited drug which includes opium and its active


components and derivatives, such as heroin and morphine; coca leaf and its derivatives, principally cocaine; alpha and beta cocaine; hallucinogenic drugs, such as mescaline, lysergic acid diethylamide (LSD) and other substances producing similar effects; Indian hemp and its derivatives; all preparations made from any of the foregoing; and other drugs, whether natural or synthetic, with the physiological effects of a narcotic drug; or

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2) Regulated drug which includes self-inducing sedatives, such


as secobarbital, Phenobarbital, pentobarbital, barbital, amobarbital and any other drug which contains a salt or a derivative of a salt of barbituric acid; any salt, isomer or salt of an isomer, of amphetamine, such as Benzedrine or Dexedrine, or any drug which produces a physiological action similar to amphetamine; and hypnotic drugs, such as methaqualone, nitrazepam or any other compound producing similar physiological effects.58 From the above the felony of possessing of prohibited drugs or regulated drugs is committed if: (1) the possession is unauthorized; (2) either actual or constructive; (3) irrespective of its quality; (4) with intent to possess, i.e. with full knowledge that what was possessed was any of the prohibited or regulated drugs. 59 However, the phrase unless authorized by law in Section 12 above states an element of defense and, therefore, is not necessary to allege in the information that the accused is not authorized to possess opium.60 The more important aspects of drug felonies correlative to students are that of possession and use. Possession is punishable when it is unauthorized actual or constructive possession with intention to possess the drugs or "animus possedendi." Furthermore, possession extends not only to the actual drug but also to paraphernalias, instruments or apparatus of the same and is evidence of drug use. Hence, possession of an aluminum or glass tooter, tissue paper, aluminum foils and disposable lighter is prima facie evidence of the use of shabu. Drug use on the other hand, is when the person is found positive of drug use after a confirmatory drug test.

Gambling
Gambling is a game or scheme the result of which depends wholly or chiefly upon chance or hazard. The Civil Code defines a game of chance as games that depends more on chance or hazard than on skill or ability, and in the case of doubt, a game is deemed to be one of chance.61
58 As amended by P.D. No. 1683 which took effect on March 14, 1980. 59 People vs. Say Guat, C.A. 52 O.G. 5913. 60 U.S. vs. Chua Lui, 26 Phil. 94. 61 Article 2013, New Civil Code of the Philippines.

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Two requisites must be present to commit gamblingFirst, that money or other consideration must be at stake and second, that the result of the game depends wholly or chiefly upon chance or hazard.62 Hence, those games, the result of which depends wholly or chiefly upon skills, are not gambling.63 Why gambling is prohibited and punished, the Supreme Court in the case of U.S. vs. Salaveria64 explained
Gambling is an act beyond the pale of good morals which, for the welfare of the people, should be exterminated. It has the effect of causing poverty, dishonesty, fraud and deceit. Many a man has neglected his business and mortgaged his integrity to follow the fickle Goddess of the cards. Many a woman has wasted her hours and squandered her substance at the gambling board while some children were forgotten.

Presidential Decree No. 1602,65 dated June 11, 1978, provides stiffer penalties for violations of the gambling laws:

a) The penalty of prision correccional in its medium period or a


fine ranging from P1,000 to P6,000, and in case of recidivism, the penalty of prision mayor in its medium period or a fine ranging from P6,000 to P10,000 shall be imposed upon: (1) Any person who, in any manner, directly or indirectly takes part in any illegal or unauthorized activities or games of 1) cockfighting, jueteng, jai-alai or horse racing to include bookie operations and game fixing, numbers, bingo and other forms of lotteries; 2) cara y cruz or pompiang and the like; 3) 7-11 and any game using dice; 4) black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguingue and other card games; 5) pak que, high and low, mahjong, domino and other games using plastic tiles and the like;
62 Ibid., page 326. 63 U.S. vs. Hilario, 24 Phil. 392. 64 39 Phil. 102. 65 P.D. 1602 entitled Prescribing Stiffer Penalties on Illegal Gambling.

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6) slot machines, roullete, pinball and other mechanical contraptions and devices; 7) dog racing, boat racing, car racing, and other forms of races; 8) basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations; 9) banking or percentage game, or any other game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made. (2) Any person who knowingly permits any form of gambling (Nos. 1 to 9), to be carried on in an inhabited or uninhabited place, or in any building, vessel or other means of transportation owned or controlled by him. b) The penalty of prision correccional in its maximum period and a fine of P6,000 shall be imposed upon: (1) any person who shall knowingly permit any form of gambling to be carried on in a place which has a reputation of a gambling place or that prohibited gambling is frequently carried on therein, or in a public or government building or barangay hall; (2) the maintainer or conductor of the gambling schemes. (Note: Banker is not mentioned in the decree.) c) The penalty of prision mayor in its medium period with temporary absolute disqualification or a fine of P6,000 shall be imposed if the maintainer, conductor or banker of the gambling schemes is a government official, or where such government official is the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and other machination. d) The penalty of prision correccional in its medium period or a fine ranging from P400 to P2,000 shall be imposed upon any person who knowingly and without lawful purpose in any hour of any day possesses any lottery list, paper, or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies and similar games of lotteries and numbers which have taken place or about to take place.

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Notwithstanding the above reason and the laws prohibiting and penalizing the same, the act of gambling is often tolerated in the Philippines. The reason is that most Filipinos consider gambling more as a recreational activity for them rather than an evil that needs to be repressed for it x x x undermines the social, moral and economic growth of the nation.66 This is manifested by the resurgence of gambling schemes in the country. In Luzon, the jueteng game is popular, in the Visayas, masiao or jai-alai is the game of choice and in certain parts of Mindanao, there is the "last two" and horse fighting. However, when it comes to gambling in schools, society has taken a more vigilant stance against it. In the present times, the proliferation of online betting and gaming sites near school campuses has made authorities take notice of the problem of gambling. It must be noted that the provisions on gambling in the Revised Penal Code have been repealed. However, there are numerous laws that have replaced such repealed provisions. To say the least, gambling within the school premises (and even outside) is considered criminal and will be dealt with accordingly.

Indecency
Offenses against decency and good custom are often considered a silent problem in schools especially in the high school and collegiate levels. This is obvious due to the blossoming sexuality of the students in that age that is prone to abuse and misuse. The first felony under this is grave scandal. The Revised Penal Code provides:
Art. 200. Grave scandal. The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

The gist of the felony states that the crime is committed when a person performs an act that is considered highly scandalous in a public place or within public view. It must also be noted that the scandalous act must not be punished by another provision in the Revised Penal Code. This felony in effect requires the following
66 People vs. Punto, 68 Phil. 481.

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elements (1) That the offender performs an act or acts; (2) That such act or acts be highly scandalous as offending against decency or good customs; (3) That the highly scandalous conduct is not expressly falling within any other article of the Code; and (4) That the act or acts complained of be committed in a public place or within the public knowledge or view.67 The word decency means propriety of conduct; proper observance of the requirements of modesty, good taste, etc. The word customs means 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 been committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. The acts punishable by Article 200 of the Revised Penal Code are those that by their publicity and character can cause public scandal among the person witnessing them, besides being contrary to morals and good customs.68 Furthermore, the highly scandalous conduct should not be expressly falling within any other article of this Code. Thus, if the scandalous conduct constitutes an act of lasciviousness,69 even if committed publicly, the offender should not be prosecuted and punished under this article. Where the accused scattered coconut remnants with human excrements on the stairs, doors and floor of the balcony of the public elementary school, it was held that the crime was other mischiefs under Art. 329, and not grave scandal under Art. 200.70
67 People vs. Samaniego, 16 Phil. 663. 68 People vs. Dumlao, et al., C.A., 38 O.G. 3715. 69 Art. 336 or Art. 339 of the Revised Penal Code. 70 People vs. Dumlao, C.A., 38 O.G. 3715.

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The crime penalized by this article consists of acts which are offensive to decency and good customs which, having been committed publicly, have given rise to public scandals to persons who have incidentally witnessed the same. Even if the article does not so express, it is evident that as a condition precedent for the existence of this crime, the offense against decency and good customs must have been made public; if the offense does not have this element, it is clear that it does not produce the grave scandal required by the article.71 Thus, in the case of U.S. vs. Samaniego 72 where a married woman who habitually appeared in public places with her paramour, frequented suspicious places, vacant houses, etc. did not violate this article, because the acts were not committed in public places or within the public knowledge or view. Also, in People vs. Catajay73 the Supreme Court ruled that when the act complained of was committed at night, in a private house, and at a time when no one was present except the accused, the mistress of the house, and one servant, these circumstances do not constitute the degree of publicity which is an essential element of the crime. The second felony is immoral doctrines and obscene shows and publication. It provides:
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet

71 Viada, 4th Ed., Vol. 3, p. 130, cited in the case of U.S. vs. Catajay, 6 Phil. 399. 72 U.S. vs. Samaniego, 16 Phil. 663. 73 U.S. vs. Catajay, supra.

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traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).

The offense in any of the forms mentioned in the article is committed only when there is publicity against public morals. The word moral implies conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes, specifically, to sexual conduct. Writing obscene literature is not punished, but the author is liable, if it is published with his knowledge. In every case, the editor publishing it is liable. The word obscene means something offensive to chastity, decency or delicacy.74 The test of is whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands such a publication may fall and also whether or not such publication or act shocks the ordinary and common sense of men as an indecency. Indecency is an act against the good behavior and a just delicacy.75 It may be conceded that nudity itself is not inherently indecent or obscene. Mere nudity in painting and sculpture is not obscenity as they may be considered pieces of art. But the artistic, the aesthetic and the pulchritude in the nude body of a living woman may readily be transformed into an indecent and obscene object, by posture and movements of such body that produce perceptible and discernible reaction in the public or audience witnessing the same. The reaction of the public, therefore, during the performance of the dance by the accused, who had nothing on except nylon patches over her breasts and a too abbreviated pair of nylon panties to interrupt her stark nakedness, should be made the gauge in the determination whether her dancing or exhibition was indecent or immoral. And when the spectators were howling and shouting in Tagalog: Sige muna, sige, nakakalibog, because she was swaying
74 U.S. vs. Kottinger, 45 Phil. 352. 75 U.S. vs. Kottinger, 45 Phil. 352.

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to and fro with the middle portion or her body, it was clear that her dancing was indecent and erotic.76 Thus, displaying and offering for sale to the public, key chains with eye-appenders which consist of pictures in colors of nude woman, was held to be not violative of this article, because persons of unquestioned morality acquire pictures of nude women and exhibit them freely in their house as works of art.77 As regards such pictures, the proper test is whether the motive of the picture, as indicated by it, is pure or impure; or whether it is naturally calculated to excite impure imaginations.78 What is punished by Art. 201, par. 4 (par. 3, as amended), is the distribution of indecent literature, etc., to many people and not merely the isolated, casual or occasional act of giving such kind of literature to a single recipient. The Court of Appeals explained that the purpose of the provision is the protection of public morals, that is, the morals of society as a whole, and not merely the morals of a single individual. 79 Hence, giving indecent literature to one person only is not a violation of Art. 201, par. 4 (par. 3, as amended). The term give away necessarily include the act of exhibiting obscene pictures or literature, because when one gives away obscene pictures or literature, he has the intentions and purpose of exhibiting or showing the same to the recipient.80 If pictures with slight degree of obscenity, not used for arts sake but for commercial purposes, the display thereof shall fall under this article. Hence, in the case of People vs. Go Pin,81 the Supreme Court ruled that since the persons who went to see those pictures and paid entrance fees for the privilege of doing so were usually not artists or persons interested in art to satisfy and improve their artistic tastes, but rather the people desirous of satisfying their morbid curiosity, taste, and lust, and for love of excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves
76 People vs. Aparici, C.A., 52 O.G. 249. 77 People vs. Serrano, CA-G.R. No. 5566-R, November 24, 1950. 78 Ibid. 79 People vs. Tempongko, 1 C.A. Rep. 317. 80 People vs. Licuden, C.A., 66 O.G. 3173. 81 People vs. Go Pin, 97 Phil. 418.

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from the ill and perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed.82 The students must be informed that purpose of the law in punishing obscene publications and exhibitions is to protect the morals of the public.83 Students therefore cannot assert their right of free expression or of the press to free them from any criminal liability that may arise out of such a publication or display of immoral doctrines, obscene publications and exhibitions and indecent shows. It must be stressed that the law punishes those who put up school plays that tend to glorify criminals, serve no other purpose but lust, offend any religion, abet drug use and those contrary to law and public morals. Lastly, since there must be publicity in order for a person to be liable for Art. 201, it is therefore necessary that in case of school plays, they must be presented first before anyone is to be prosecuted.

Rape
Rape on campus has always been a constant threat especially in a co-educational institution. While the rate of occurrence is low in the Philippines, in other countries like the United States and Australia where there is a prevalence of campus dormitories or school towns where students are away from their families and living independently, the instances of rape (especially date rapes) are unusually high. The crime of rape has now been reclassified as a crime against persons and not a crime against chastity. The classification is important because as a crime against person, it is no longer a private crime and thus, no longer requires the victim to personally file the information against the assailant. The law that reclassified the same is Republic Act No. 8353. It provides:
SECTION 2. Rape as a Crime Against Persons.- The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 3815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be

82 Ibid. 83 People vs. Aparici, supra.

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incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows: "Chapter Three "Rape. "Article 266-A. Rape: When And How Committed. - Rape is committed: "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: "a) Through force, threat, or intimidation; "b) When the offended party is deprived of reason or otherwise unconscious; "c) By means of fraudulent machination or grave abuse of authority; and "d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. "2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

It can now be stated definitely that rape can be committed by both a man and a woman. This is due to the addition of the provision on sexual assault where rape is committed by inserting the penis in another person's mouth or anus and inserting any object or instrument into the genitalia of another person by either a man or a woman. As a rule however, there is rape when there is sexual intercourse or there is actual penetration of the penis or instrument in the vagina or anus/mouth as the case may be. The mere touching or strafing of the penis on the vaginal orifice is not rape. Moreover, the sexual act must be attended by the circumstances enumerated by the law. Lastly, rape is punishable by the death penalty if committed under the following circumstances: 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

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4)

When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; 5) When the victim is a child below seven (7) years old; 6) When the offender knows that he is afflicted with the Human Immune-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and 10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. Considering the gravity of the offense of rape that may even justify imposition of the capital punishment, schools must be absolutely certain of the facts and circumstances before they are to charge any of their students of rape. As the Supreme Court declared in the case of People vs. Quintal.84-There is no question that rape is a most destestable crime and should, therefore, be severely and impartially punished. But a rape charge is easy to make, hard to prove and harder to defend by the party accused, though innocent. (Cornelio Flores. 26 Phil 262, 268; Ignacio Landicho, 8 ACR 580; Rafael Lacson, CA 53 O.G. 1823; Francisco Salvador, CA 52 O.G. 7290; Lago, CA 45 O.G. 1356; Barbo, 56 SCRA 459). Experience has shown that unfounded charges of rape have frequently been preferred by women actuated by some sinister, ulterior or undisclosed motive. Convictions for such crime should not be sustained without clear and convincing proof of guilt. (Bay. 27 Phil. 495; Pantaleon Ramos,

84 125 SCRA 734 (1983).

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35 Phil. 671; Brocal, CA 36 O.G. 857; Topacio, CA 36 O.G. 1358). On more than one occasion it has been pointed out that in crimes against chastity, the testimony of the injured woman should not be received with precipitate credulity. When the conviction depends on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from suspicion. A little insight into human nature is of utmost value in judging matters of this kind. (Fernando Fausto, 51 Phil. 852) (See The Revised Penal Code Vol. III, 1977 Edition, pp. 1679-1680, by Justice Ramon Aquino). There are three (3) well-known principles that guide an appellate court in reviewing the evidence presented in a prosecution for the crime of rape and these are: (1) that an accusation for rape can be made with facility; it is difficult to prove it but more difficult for the person accused, though innocent, to disprove it; (2) that in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) that the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. In the light of the above considerations and after a careful and conscientious study, analysis and review of the prosecution evidence, We have come to the conclusion that the government has not proved the guilt of the accused beyond reasonable doubt. There is merit to the contention of the accused-appellant that the act of sexual intercourse he had admittedly with the offended party does not constitute the crime of rape because he did it with the consent of the latter, there being no evidence showing that he used force or intimidation nor was the offended party deprived of reason or otherwise unconscious. There are indeed a number of facts and circumstances that belie the claim of the offended party that she was raped by the accused-appellant in the manner testified to by her: 1. That the complainant, after having been raped on January 4 by the accused as charged in the information, did again meet with him four days subsequently on January 8,1977 at the National Book Store in Cubao, Quezon City at 10:00 o'clock a.m. and thereafter both proceeded to the Rose Garden Motel where they had sexual intercourse four times, leaving the motel only at about 3:00 o'clock p.m., at which occasion the complainant never complained of threats, intimidation nor of having been given chocolate candy to eat or cigarette to smoke and, therefore, consented freely and voluntarily to such repeated sexual pleasure, cannot but indicate serious doubt and suspicion to her claim of rape at the first instance, that is four days earlier at the same motel on January 4, 1977. It is quite improbable that the victim of an alleged rape would consent so soon to another tryst with the rapist and enjoy sexual gratification with him, unless she had previously given herself to him freely and easily on an earlier occasion. For her now to claim that she was ravished and

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deflowered under threats and intimidation by the accused appellant who allegedly told her that she had two Mathematics subjects under him, cannot be believed. Such a conduct simply is diametrically opposed to what is expected and is normal to a girl whose virtue had been destroyed, her honor ruined, for then she would have been furious, bitter and resentful against him who had violated her. 2. That in the evening of January 8, 1977, the complainant met with her boyfriend, Jesus Tolentino, who brought her to his residence at St. Ignatius Village, Quezon City where he had sexual intercourse with her for seven times, indicates the laxity of complainant's moral behavior, detracting from the traditional and proverbial modesty and decency of the Filipina. 3. The delay in subjecting the complainant to a medical examination which took place eleven (11) days after the sex assault and the lack of proof that the chocolate candies taken by her were really "drugged" reflect the weakness of the prosecution evidence. The conclusion is inevitable that the complainant was not sexually assaulted against her will but that she yielded her honor and virtue willingly. The original information filed against the accused-appellant was for forcible abduction with rape. The trial court acquitted him of the forcible abduction charge, there being no showing that the personal liberty of the victim was violated when she accepted the invitation of the accused-appellant to take merienda with him and thereafter proceeded to the motel in Sta. Mesa, Manila. While there is proof that the complainant was a virgin, above twelve years of age and below eighteen years at the time and the facts and circumstances on record show the commission of the crime of consented abduction, the failure in the information to allege these vital elements do not warrant a conviction for consented abduction under the present information (See Art. 343, Revised Penal Code; Valdepea vs. People, 16 SCRA 971; Barba vs. People, 89 SCRA 112; People vs. Castro, 58 SCRA 473; People vs. Samillano, 56 SCRA 573; People vs. Magat, 94 Phil. 118; People vs. Ernesto Sison, G.R. No. L45857, Oct. 27, 1983). The prosecution should file the corresponding valid information for consented abduction against the accused-appellant.

The moral of the story is this: though rape is difficult to prove, the case only shows to us that it can happen in a school setting. The moral ascendancy of teachers over their students would make the latter an unsuspecting and easy prey. The only weapon of a victim in this case is vigilance and common sense.

Murder, Homicide and Physical Injuries

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In recent times, the increase in the number of fraternities and sororities in Philippine campuses provided an impetus for the proliferation of the so-called "frat wars." In the instant case, these are encounters where warring fraternities engage in armed debacle often resulting in deaths and physical injuries. Thus, it is corollary to discuss the felonies in relation to these occurrences. The crime of murder is committed under the following:
Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or means or persons to insure or afford impunity. 2. In consideration of a price, reward, or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse

On the other hand, homicide in the Revised Penal Code states:


Art. 249. Homicide. Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

At the onset, one must note that if a person dies or is killed, more often, the crime committed is either murder or homicide. The only difference between the two is that in the case of murder, the killing is attended by certain circumstances that qualify the crime. If there is an absence of the aforesaid circumstances and a person is killed, the crime is only homicide.

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Schools, particularly the teachers, must be made aware that any student who, while in their custody, commits a crime of murder or homicide may be held liable for damages. The case to consider is Amadora vs. Court of Appeals.85 Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose Recoletos, a classmate, Pablito Daffon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. Daffon was convicted of homicide thru reckless imprudence. Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector, the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees. On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved. The Supreme Court made this pronouncement:
Applying the foregoing considerations, the Court has arrived at the following conclusions: 1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities. 2. The rector, the high school principal and the dean of boys

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cannot be held liable because none of them was the teacher-incharge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-incharge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer. 3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their nonobservance. His absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that discipline. 4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable, especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son. 5. Finally, as previously observed, the Colegio de San Jose Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody. In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Daffon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize with the petitioners over the

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loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked.

We need to point out herein that the above ruling exonerating the school, its head, administrators and the teachers of the victim and the criminal, is applicable only if the crime involved are students of majority age. For in that case, as pointed out by the Supreme Court, Article 2180 of the Civil Code applies. However, if the students are minors the Amadora ruling cannot be applied. For in such cases Articles 218 and 219 of the Family Code shall apply thereby holding the school, administrators and teachers jointly and solidarily liable if it is proven that they failed to exercise parental responsibility over the said student who committed the crime. (Please see Chapter 11) Another felony in relation to this subject is death or physical injuries in a tumultuous affray. The relevant provisions are as follows:
Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing of groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. Art. 252. Physical injuries inflicted in a tumultuous affray. When in a tumultuous affray as referred to in the preceding article, only serious physical injuries are inflicted upon the participants thereof and the person responsible thereof cannot be identified, all those who appear to have used violence upon the person of the offended party shall suffer the penalty next lower in degree than that provided for the physical injuries so inflicted. When the physical injuries inflicted are of a less serious nature and the person responsible therefore cannot be identified, all those who appear to have used any violence upon the person of the offended party shall be punished by arresto mayor from five to fifteen days.

Tumultuous affray exists when at least four (4) persons are

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armed or are provided with means of violence and when there are no two identified groups who assaulted each other. The following are the elements of the offense: (1) That there be several persons; (2) That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally (3) That these several persons quarreled and assaulted one another in a confused and tumultuous manner; (4) That someone was killed, suffered serious physical injuries or physical injuries of a less serious nature in the course of the affray (5) That it cannot be ascertained who actually killed the deceased (6) That the person or persons who inflicted serious physical injuries or who used violence can be identified. 86 In the school setting, this is usually common in cases where in a school activity, violence would result from a chance encounter between two strangers and the others would just join in the hostilities resulting in a mass riot or what is commonly termed as "rambol." It must be noted that for this felony to apply, the violence must not be between two conflicting groups, otherwise the death or injury of one member will be attributed to the other opposing group. The more prevalent felony in this group is that of physical injury. The following are the pertinent provisions on physical injuries found in the Revised Penal Code:
Art. 262. Mutilation. The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, or some essential organ of reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. Art. 263. Serious physical injuries. Any person who shall

86 Reyes, Luis B.: The Revised Penal Code: Criminal Law Book 2, 14 th Ed., 1998 Revised Edition, page 486.

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wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer: 1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind; 2. The penalty of prision correccional in its medium and maximum periods, if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged; 3. The penalty of prision correccional in its minimum and medium periods, if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days; 4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than thirty days. If the offense shall have been committed against any of the persons enumerated in Article 246, or with attendance of any of the circumstances mentioned in Article 248, the case covered by subdivision number 1 of this Article shall be punished by reclusion temporal in its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods. The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement. Art. 265. Less serious physical injuries. Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more, or shall require medical assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor. Whenever less serious physical injuries shall have been inflicted with the manifest intent to kill or offend the injured person, or under circumstances adding ignominy to the offense in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed. Any less serious physical injuries inflicted upon the offender's

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parents, ascendants, guardians, curators, teachers, or persons of rank, or persons in authority, shall be punished by prision correccional in its minimum and medium periods, provided that, in the case of persons in authority, the deed does not constitute the crime of assault upon such person. Art. 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. 2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance. 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury.

The most serious physical injury is mutilation. It means the lopping or the clipping off of some part of the body with the intention to deprive the victim of a part of his body. If there is no such intention, there is no mutilation but serious or less serious physical injuries. There are two kinds of mutilation namely: first, the mutilation of essential organs of reproduction or castration and simple mutilation, that is, any other organ is mutilated.87 Physical injuries, as a felony, is a crime of result. In other words this felony is punished not by the gravity of the action of the offending party but by the resulting injury to the victim. Even if the injury is a mere slap in the head but the act caused the blindness of the victim, the act is considered serious physical injury. On the other hand, if the act consists of using an ice pick to stab the victim (if intent to kill is not proven) and the injury is merely a wound that required the victim to be hospitalized for only three days, the felony is only slight physical injuries. In the school setting, this felony finds relevance due to the dynamics of the relationships found in the school system. It cannot be denied that when students of different backgrounds are forced to interact with each other, chances are, episodes of conflict are possible and instances where violence is used could not be far behind. Making every student aware that certain acts such as the
87 Ibid., page 510.

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poking of the eye or the slapping of the head could result in serious injuries can at least lessen the instances of it happening. Moreover, the practice of certain fraternities of using violence in the initiation process makes a cursory study of these articles necessary. Lastly, in relation to physical injuries, read the discussions on Republic Act No. 8049 or the Anti-Hazing Law in Chapter Five.

Crimes Against Liberty and Security


Crimes against liberty and security is a worthy topic of discussion due to the instances of kidnapping experienced by students. The more serious offense is that of kidnapping and serious illegal detention. It provides:
Art. 267. Kidnapping and serious illegal detention -Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. Art. 268. Slight illegal detention. The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos.

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The crimes above described consist of the following elements(1) That the offender is a private individual; (2) That he kidnaps or detains another, or in any other manner deprives the latter of his liberty; and (3) That the act of detention or kidnapping must be illegal.88 The crux of the felony of kidnapping and illegal detention is the deprivation of liberty of the victim. If the detention is attended by the following: lasts-more than five days, committed by simulating public authority, serious physical injuries are inflicted on the victim or when he is threatened to be killed and when the victim is a minor, female or a public officer,- the felony is kidnapping and serious illegal detention. If the detention is without the aforementioned circumstances, the felony is merely slight illegal detention. One should be aware that under Article 268, par. 2 above, the same criminal liability shall attach to any person who may have furnished the place for the perpetration of the crime of kidnapping or illegal detention. His participation is raised to that of a real-principal. 89 But if his cooperation is by an act or acts other than furnishing the place for the perpetration of the crime, the penalty is lesser than that provided for the crime of slight illegal detention.90 The next felony is found in Article 270 and 271 of the Revised Penal Code:
Art. 270. Kidnapping and failure to return a minor. The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians. Art. 271. Inducing a minor to abandon his home. The penalty of prision correccional and a fine not exceeding seven hundred pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody. If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both.

88 Ibid., page 542. 89 Ibid., page 550. 90 Ibid.

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First of all, a minor in this case is a person who is below twentyone years old. While the law is silent on such matter, many jurists believe that in this regard, a minor is still a person under twenty-one despite the provisions of R.A. No. 6809 reducing the age of majority to eighteen. In failing to return a minor, the accused must be a person charged with the custody of a minor. One such person is a teacher. Hence, it is not unfathomable that a teacher can commit this felony in light of the responsibility vested by law. Thus, if a teacher would deliberately fail to restore a minor to his parents or guardians, the same is liable for such offense. However, if the person having custody of the minor is a parent, the penalty is greatly reduced. On the other hand, inducing a minor to abandon his home is similar to Art. 270 in a sense that the intended result is the same: to separate the minor from his home. However, Art. 271, RPC provides that the mere act of inducing is punishable. It does not matter whether or not the minor actually abandons his home. The felony of exploitation of child labor is also of notable mention. The Penal Code provides:
Art. 273. Exploitation of child labor. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon anyone who, under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service. Art. 274. Services rendered under compulsion in payment of debt. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer.

In summary, the punishable act is by forcing a child or another person, as the case may be, to render service under the pretext of enforcing a debt. In constitutional terms, this is involuntary servitude. This felony is relevant because of an instance involving a school teacher who engaged in "five-six" or usurious loans granted to the parents of her students. In one occasion, the debtor parent was not able to pay the interest of the loan. Hence, the teacher made the daughter of the debtor parent, who was her student, stay after class and clean her house for one week in lieu of the payment of interest. In this instance, the teacher was not even punished. The reason is

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simple: in the barrio where the incident happened, it was an accepted practice. Nobody knew it was wrong; that it was even a crime. Abandoning a minor is also punishable. The Code states:
Art. 276. Abandoning a minor. The penalty of arresto mayor and a fine not exceeding P500 pesos shall be imposed upon any one who shall abandon a child under seven years of age, the custody of which is incumbent upon him. When the death of the minor shall result from such abandonment, the culprit shall be punished by prision correccional in its medium and maximum periods; but if the life of the minor shall have been in danger only, the penalty shall be prision correccional in its minimum and medium periods. The provisions contained in the two preceding paragraphs shall not prevent the imposition of the penalty provided for the act committed, when the same shall constitute a more serious offense. Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents. The penalty of arresto mayor and a fine not exceeding P500 pesos shall be imposed upon anyone who, having charge of the rearing or education of a minor, shall deliver said minor to a public institution or other persons, without the consent of the one who entrusted such child to his care or in the absence of the latter, without the consent of the proper authorities. The same penalty shall be imposed upon the parents who shall neglect their children by not giving them the education which their stations in life require and financial conditions permit.

Lastly, is the felony of exploitation of minors. The Revised Penal Code states:
Art. 278. Exploitation of minors. The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 pesos shall be imposed upon: 1. Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion. 2. Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants. 3. Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions.

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4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority. 5. Any person who shall induce any child under sixteen 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 hereof, or to accompany any habitual vagrant or beggar.

A perusal of the provisions would lead us to deduce that the general fiber of this felony is the act of exposing a minor to certain dangers by allowing them to take part in any dangerous acts like acrobatics, circus acts, etc. It would be noted though that the provisions on child exploitation is quite limited. Hence, a new law was enacted to broaden the coverage. The law is Republic Act No. 7610, otherwise known as the Anti-Child Abuse, discussed exhaustively on Chapter ---on the Right of Students Against Abuse.

Theft
Theft is committed by any person who, with intent to gain, shall take property of another person without the latter's consent but without violence against persons nor force upon things.91 The rising frequency of theft committed in the campuses has merited the inclusion of this felony in the discussion. The law provides:
Art. 308. Who are liable for theft. Theft is 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. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or

91 Ibid., page 685.

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object of the damage caused by him; and 3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980).

From the above provisions may be deduced the following persons who shall be liable for theft (1) Those who, with intent to gain, but without violence against or intimidation of persons nor force upon things, take personal property of another without the latters consent. (2) Those who having found lost property fail to deliver the same to the local authorities or to its owner. (3) Those who after maliciously damaged the property of another, remove or make use of the fruits or object of the damage caused by them. (4) Those who enter an inclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals or other forest and farm products.92 Hence, aside from the act of taking personal property of another, theft can also be committed by omission. In such case, any person who finds any property and fails to deliver it to the owner or local authorities is likewise guilty. Moreover, theft is qualified by the instances enumerated by the law: those committed by a domestic servant, or with abuse of confidence, when the thing stolen is mail matter, motor vehicle, large cattle or coconut from a plantation or fish from the fishpond or on the occasion of a calamity or disturbance.93
92 Ibid., page 686. 93 Ibid.

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In theft, the taking away or carrying away of personal property of another is not required as in larceny in common law. 94 We should note that the phrase used in Article 308 is shall take personal property of anothernot shall take away such property.95 Hence, the theft was consummated when the culprits were able to take possession of the things taken from the owner and was not necessary to prove that the things stolen were carried, more or less far away. 96 The Supreme Court consistently declared that taking is complete to consummate the crime of theft from the moment the offender had full possession of the thing, even if he did not have an opportunity to dispose of the same yet.97 In the case of People vs. Sobrevilla98 where the accused while behind the offended party, in the midst of a crowd in front of the public market, he abstracted from the pocket of the trousers of the offended party, a pocketbook containing money, but the offended party perceived of the theft and immediately recovered the pocketbook after a struggle with him, the Supreme Court declared that there was already consummated theft and not merely frustrated theft as alleged by the accused. In this case, the High Court noted that the accused already succeeded in taking the pocketbook, the element that determines the consummated crime of theft. A student therefore who is found in possession of stolen properties belonging to his/her classmates or to the school or third persons while said student is still in school or even at the very place where he/she may have taken the property (as still inside the classroom where the thing was reported missing by the owner thereof) is already guilty of theft. It must be pointed out however that the taking must be committed by the accused with the intention of making himself the owner of the thing taken. In the case of People vs. Rico,99 the decision of the Supreme Court of Spain of November 23, 1903, was cited as to the meaning of the term apoderar or apoderarse, that is, the offender must have the intention of placing the property taken
94 People vs. Mercado, 65 Phil. 665. 95 Ibid. 96 People vs. Jaranilla, 55 SCRA 563. 97 Ibid to Footnote 85, page 687. 98 53 Phil. 227. 99 C.A., 50 O.G. 3103.

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under his control and of making himself the owner thereof.100 Students who take and use the cars or vehicles parked in the school campus without the consent of the owners, even if it is just for a joy ride already constitutes taking with intent to gain because by using things, we derive from them utility, satisfaction, enjoyment, and pleasure, or what amounts to the same thing, real gain.101 Actual or real gain therefore on the part of the offender is not necessary to consummate the crime. It is enough that on taking the property, the offender was then actuated by the desire or intent to gain.102

Malicious Mischief
The felony of malicious mischief is committed as follows:
Art. 327. Who are liable for malicious mischief. Any person who shall deliberately cause the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief.

Malicious mischief is the willful damaging of anothers property for the sake of causing damage due to hate, revenge or other evil motives.103 It is committed when a person shall deliberately cause damage to the property of another and the act is not arson or any other crimes involving destruction. The following are the elements of the felony (1) That the offender deliberately caused damage to the property of another; (2) That such act does not constitute arson or other crimes involving destruction; (3) That the act of damaging anothers property be committed merely for the sake of damaging it.104 Hence, if a student commits an act of burning school property, he shall be liable for arson, but if the act is merely destroying the property by throwing or breaking it, the felony is malicious mischief.
100 Ibid., page 690. 101 People vs. Fernandez, C.A. 38 O.G. 985. 102 People vs. Mercado, 65 Phil. 665. 103 Ibid., page 829. 104 Ibid.

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It is worthwhile to note that there must be the presence of malice on the part of the doer. This is essential; otherwise, the actor is not criminally liable. He/she shall only be liable for the value of the damaged property. Shall deliberately cause to the property of another any damage means that the offender should act under this impulse of a specific desire to inflict injury to another. It follows that, in the very nature of things, malicious mischief cannot be committed through negligence, since culpa and malice are essentially incompatible.105 Malicious mischief embraces damage against anothers property even if such evil deed was not inspired by hatred or by a desire for revenge but by the mere pleasure of destroying.106

Crimes Against Chastity


The present trend of most schools, colleges and universities to do away with being exclusive in their enrolment policy to a particular sex and opening their campuses to both male and female students, have raised the incidents of crimes against chastity inside the school campus among students and other members of the school community. The author finds it therefore indispensable to cover in this chapter the different crimes against chastity found in the Revised Penal Code. The first felony to mention is the crime of acts of lasciviousness. The law states:
Art. 336. Acts of lasciviousness. Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.

The felony has the following essential elements (1) That the offender commits any act of lasciviousness or lewdness. (2) That it is done under any of thye following circumstances
105 Quizon vs. Justice of the Peace, et al., 97 Phil. 342. 106 People vs. Siddayao, C.A. 53 O.G. 8163.

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(i) By using force or intimidation; (ii) When the offended party is deprived of reason or otherwise unconscious; or (iii) When the offended party is another person of either sex.107 Motive of lasciviousness acts is not important because the essence of lewdness is in the very act itself. Thus, the act of taking the offended part by the waist, of holding her to his breast and hugging her with intention of kissing her and touching her breast and private parts, which the accused did by force and against the will of his victim, are by themselves an abuse directed against the victims chastity and it is no defense that the accused was motivated not by lewdness but by a desire to avenge the fact that her father committed a criminal attack on the wife of the accused.108 However, if such element of lewdness as in the act itself complained of is absent, there is no crime of acts of lasciviousness. However, the felony committed may be unjust vexation or even slander by deed. Thus, when a person accidentally touches the private part of a woman because he tripped in the stairs and landed on top of her, there is no crime to speak of. In the case of People vs. Balbar,109 the assailant entered a classroom where the teacher was holding classes. He tried to kiss and embrace her. On the issue of whether there were acts of lasciviousness committed, the Supreme Court answering in the negative explained

107 Ibid., page 854. 108 People vs. Famularcano, C.A. 43 O.G. 1721. 109 21 SCRA 1119.

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The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. In the instant case, in view of the manner, place and time under which the acts complained of were done, lewd designs can hardly be attributed to the accused. The factual setting, that is, a schoolroom in the presence of complainants students and within hearing distance of her co-teachers, rules out a conclusion that the accused was actuated by a lustful design or purpose or that his conduct was lewd or lascivious. It may be that he did embrace the girl and kiss her but, this of itself would not necessarily bring the case within the provision of Article 336 of the Revised Penal Code.

But if a male student embraces and kisses his female classmate several times and intentionally fondles her breast at the same time in a theater inside the school campus where the lights were out and the attention of the other students was concentrated on the film being shown at that time, the respondent student must be considered as having done so with a feeling of lasciviousness, a mental process of emotion that differs in intensity in different situations and different persons. Being a purely mental process discernible only by overt acts, no inflexible rule can be laid down as an accurate measure. 110 This is the reason why at times, it may extremely difficult to have a clear distinction between the conduct of a lascivious person and the amorous advances of an ardent lover.111 Hence, in some cases the Supreme Court held that the crime committed was only unjust vexation where the accused merely kissed and embraced the victim, either out of passion or other motive, the touching of the breasts being purely incidental.112 Another common form of crimes against chastity is the crime of seduction. The following provisions define the penalty:
Art. 337. Qualified seduction. The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced, shall be punished by prision correccional in its minimum and medium periods. The penalty next higher in degree shall be imposed upon any

110 U.S. vs. Gomez, 30 Phil. 22. 111 Ibid. 112 People vs. Biag, C.A., 65 O.G. 1596; February 17, 1969, citing People vs. Arpon, 45 O.G. (Supp. 5) 25, and People vs. Climaco, 46 O.G. 3186.

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person who shall seduce his sister or descendant, whether or not she be a virgin or over eighteen years of age. Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein. Art. 338. Simple seduction. The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.

Seduction is an act of enticing a virgin to unlawful sexual intercourse by the promise of marriage or other means of persuasion without use of force. 113 Two (2) kinds of seduction are penalized above: (1) Qualified Seduction, and (2) Simple Seduction. There are two (2) types 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, etc.; and (2) Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation. The elements of qualified seduction of a virgin (No. 1 above) are the following (1) That the offended party is a virgin, which is presumed if she is unmarried and of good reputation. (2) That she must be over 12 and under 18 years of age. (3) That the offender has sexual intercourse with her. (4) That there is abuse of authority, confidence or relationship on the part of the offender.114 Qualified seduction is based on the character of the person committing the act. If the seduction is done by a person in abuse of his authority (guardians, teachers, etc), those who abuse the confidence reposed upon them (priest, domestic servants) and those who abuse their relationship with the victim (brother or ascendant), the felony is qualified seduction.
113 Webster New International Dictionary. 114 Reyes, Luis B.: The Revised Penal Code: Criminal Law Book 2, 14th Revised Ed., 1998, page 861.

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As a general supposition, the victim must be a virgin, over 12 and under 18 years of age. Virginity is presumed if the woman is unmarried and of good reputation, and hence, it is the accused who must prove otherwise and the proof must be convincing, not just insinuation or conjectures.115 If the woman is married and the offender knows it, having sexual intercourse with her is adultery. If the victim is less than 12 years old, the crime is rape. If the victim is over 18 years of age, qualified seduction is not committed. There is no crime at all, if there is no force or intimidation or the woman is not unconscious or otherwise deprived of reasons.116 The term "virgin" must not be taken in its medical sense where there is the absence of sexual experience and manifested by an intact hymen. Virginity is taken to mean that the woman is unmarried and is of good reputation and need not be physically a virgin. There must be sexual intercourse in qualified seduction. However, the fact that the virgin gave her consent to the sexual intercourse is no defense. In regard to a teacher who may possibly commit qualified seduction against a student, even if the accused is not the teacher of the offended party, it is sufficient if the accused is a teacher in the same school, because of his moral influence as member of the faculty over the student.117 A teacher in a public school who was in charge of the education and instruction of a girl had sexual intercourse with her was held guilty of qualified seduction.118 It is settled that deceit does not need to be proven in a charge of qualified seduction. The Supreme Court explaining this position declared in the case of People vs. Fontanilla119
It is replaced by abuse of confidence. The seduction of a virgin x x x committed by any of the persons enumerated x x x is constitutive of the crime of qualified seduction x x x even though

115 People vs. Ramos, C.A. 72 O.G. 8139. 116 Ibid. to Footnote 113. 117 Santos vs. People, 40 O.G., Supp. 6, 23. 118 People vs. Cariaso, 50 Phil. 884. 119 23 SCRA 1227.

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no deceit intervenes or even when such carnal knowledge were voluntary on the part of the virgin, because in such a case, the law takes for granted the existence of the deceit as an integral element of the said crime and punishes it with greater severity than it does the simple seduction x x x taking into account the abuse of confidence on the part of the agent (culprit), an abuse of confidence which implies deceit

Simple seduction on the other hand, is committed when a person has sexual contact with a woman by means of deceit. The following are the elements of the offense (1) years of age. (2) widow. (3) her. That the offender has sexual intercourse with That it is committed by means of deceit.120 That she must be of good reputation, single or The offended party is over 12 and under 18

(4)

Article 338 uses the phrase a woman who is single or a widow of good reputation, apparently meaning that it is the widow who is of good reputation. But Albert says that the offended party must be of good repute, because if she was a public woman or one of loose morals, the act would not be penalized by the Code.121 It is not essential in simple seduction that the woman seduced be a virgin, as all that is necessary is that she is of good reputation.122 Therefore, a woman who was raped before may be the victim of simple seduction, provided she is a woman of good reputation.123 But a woman, who had illicit relations with a number of men prior to accuseds sexual intercourse with her, is not of good reputation.124 Deceit generally takes the form of unfulfilled promise of marriage and this promise need not immediately precede the carnal act.125
120 Ibid to Footnote 113, page 866. 121 Ibid, page 867. 122 2 Cuello Calon, Codigo Penal, 10th ed., pp. 580-581. 123 Ibid, page 867. 124 U.S. vs. Suan, 27 Phil. 12. 125 People vs. Iman, 62 Phil. 92.

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Promise of marriage must be the inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust, and the intercourse is from mutual desire, there is no seduction.126 Deceit is also illustrated in the case of U.S. vs. Hernandez,127 where the accused endeavored to seduce the girl and failing in the attempt, he procured the performance of a fictitious marriage ceremony and thereafter had sexual intercourse with her. It need to be mentioned here, that if any of the aforementioned crimes against chastity or even rape was committed by a teacher, school personnel or school administrator against a student or pupil, the former is not only liable under the Revised Penal Code, but shall likewise be liable for violating the Anti-Sexual Harassment Law.128

Criminal Negligence
The penal law on criminal negligence is found in the Revised Penal Code. It states:
Art. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding (P200.00) two hundred pesos and

126 U.S. vs. Sarmiento, 27 Phil. 121. 127 29 Phil. 109. 128 R.A. 7877, Sexual Harassment Law, Read Chapter 9 on the Right of Student Against Sexual Harassment.

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censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, 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 or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. (As amended by R.A. 1790, approved June 21, 1957).

Imprudence means there is a deficiency of action while negligence indicates a deficiency of perception. 129 Hence, failure in precaution is termed imprudence, while failure in advertence is known as negligence.130 The wrongful acts may be avoided on two (2) levels: (1) by paying proper attention and using due diligence in foreseeing them; and (2) by taking the necessary precaution once they are foreseen.131 Failure to do the first is negligence. Failure to do the second is imprudence.
129 Reyes, Luis B. The Revised Penal Code: Criminal Law Book 2, 14 th Revised Ed. 1998, page 983. 130 Ibid 131 Ibid.

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Reckless imprudence is defined as that consisting of voluntary, 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 or failing to perform such act taking into consideration his employment, degree of intelligence, physical condition and other circumstances regarding persons, place and time.132 Elements of reckless imprudence are the following (1) (2) voluntary. (3) (4) That the offender does or fails to do an act. That the doing of or the failure to do the act is

That it be without malice. That material damage results. (5) That there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition; and other circumstances regarding persons, time and place.133 On the other hand, the test for negligence is found in the case of Picart vs. Smith134 when it provided:
The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued. If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this provision, is the constitutive fact in negligence.

The law provides that when property is destroyed or homicide results from negligent and imprudent acts, the actor is criminally liable. This has clear implications in the school setting due to the fact that as most students are of tender age, they are the ones most
132 Ibid. 133 Ibid. 134 37 Phil. 809.

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susceptible to acts of recklessness and negligence. By showing to them the dire effects of their actions, it aims to inculcate in their minds to be more discerning of their moves and not to rush into things. In conclusion, this chapter does not intend to make every student a master in criminal law. Its only aim is to inform the members of the school community, particularly the students of certain crimes that they may commit in the course of their study or those which may be committed against them. The purpose of information is to encourage them to be vigilant of their rights as not to be abused and to be aware that as students they are not immune from the claws of Philippine penal sanctions. So that in the future, instances of crimes would be avoided or at least diminished.

The Juvenile Justice and Welfare Act of 2006


What we find very significant for inclusion in this chapter is the thorough discussion on Republic Act 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006. 135 For if the student involved in the commission of any of the crimes discussed in the foregoing is still a minor (a majority of the students are in fact minors) the provisions of this law shall apply.

Minimum Age of Criminal Responsibility


One of the most significant provisions of the law is found in Article 6 thereof where it provides now in no uncertain terms that
Minimum Age of Criminal Responsibility.- A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with the Act. The exemption from criminal liability herein e3stablished does not include exemption from civil liability, which shall be enforced in

135 Approved 28 April 2006.

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accordance with existing laws.

The provision above has amended the provision in Article 12 (2) and (3) of the Revised Penal Code that then fixed the age of criminal exemption to those below nine (9) years of age only. Now criminal exemption applies to those who are fifteen (15) years old or under. As a matter of fact, even if the child is above fifteen (15) already but still below eighteen (18), he/she may still be criminally exempt if it is shown that in the commission of the felony charged he/she did not act with discernment. Discernment means the mental capacity of a minor to fully appreciate the consequences of his unlawful act.136 The discernment that constitute an exemption from criminal liability, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial.137

Determination of Age
In case of doubt as to the true age of the child in conflict with the law,138 he/she shall enjoy the presumption of minority. Hence, he/she shall have all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older.139 The age of the child may be determined from the childs birth certificate, baptismal certificate or any other pertinent documents.140 In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. 141 In case of
136 People vs. Navarro, C.A. 51 O.G. 4062. 137 People vs Doquena, 68 Phil. 580; Guevarra vs. Almodovar, 169 SCRA 476, 481. 138 A child in conflict with the law refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (see Section 4 (e), R.A. 9344. 139 Section 7, R.A. 9344. 140 Ibid. 141 Ibid

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doubt as to the age of the child, it shall be resolved in his/her favor.142

Treatment of Children Below the Age of Criminal Responsibility


It must be pointed out that if it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the childs nearest relative.143 Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child.144 If the parents, guardians or nearest relative cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered non-government or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local welfare and development officer; or when and where appropriate, the DSWD. 145 If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise known as The Child and Youth Welfare Code.146 From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her;
142 Ibid. 143 Section 20, R.A. 9344. 144 Ibid. 145 Ibid. 146 Ibid

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(e) Properly identify himself/herself and present proper identification to the child; (d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law; (e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child's apprehension. The social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same; (k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: 1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; 2. That the parents or guardian of a child, the DSWD, and the PAO have been informed of the apprehension and the details thereof; and 3. The exhaustion of measures to determine the age of a child and the precise details of the physical and medical

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examination or the failure to submit a child to such examination; and (m) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell.

Rights of the Child in Conflict with the Law


The law ensures that every child in conflict with the law shall have the following rights, including but not limited to: a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action;

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f) the right to bail and recognizance, in appropriate cases; g) the right to testify as a witness in his/her own behalf under the rule on examination of a child witness; h) the right to have his/her privacy respected fully at all stages of the proceedings; i) the right to diversion if he/she is qualified and voluntarily avails of the same; j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; l) in general, the right to automatic suspension of sentence; m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; n) the right to be free from liability for perjury, concealment or misrepresentation; and o) other rights as provided for under existing laws, rules and regulations. The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty.

Diversion
Diversion is defined by the appropriate process of determining of a child in conflict with the law cultural, economic, psychological or law as an alternative, childthe responsibility and treatment on the basis of his/her social, educational background without

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resorting to formal court proceedings. 147 The diversion program refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. 148 The following rules shall be applied in effecting a Diversion Program on a child in conflict with the law:
SEC. 23. System of Diversion. - Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. SEC. 24. Stages Where Diversion May be Conducted. Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including judicial level. SEC. 25. Conferencing, Mediation and Conciliation. - A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. SEC. 26. Contract of Diversion. - If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by

147 Section 4 (i). 148 Ibid., (j).

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the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed fortyfive (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. SEC. 27. Duty of the Punong Barangay When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word "CHILD" in bold letters. SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a) The nature and circumstances of the offense charged; (b) The frequency and the severity of the act; (c) The circumstances of the child (e.g. age, maturity, intelligence, etc.);

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(d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The child's feelings of remorse for the offense he/she committed; (b) The parents' or legal guardians' ability to guide and supervise the child; (c) The victim's view about the propriety of the measures to be imposed; and (d) The availability of community-based programs for rehabilitation and reintegration of the child. SEC. 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) (2) (3) (4) (5) (6) Restitution of property; Reparation of the damage caused; Indemnification for consequential damages; Written or oral apology; Care, guidance and supervision orders; Counseling for the child in conflict with the law and the child's family; (7) Attendance in trainings, seminars and lectures on: (i) (ii) (iii) (iv) anger management skills; problem solving and/or conflict resolution skills; values formation; and other skills which will aid the child in dealing with situations which can lead to repetition of the offense;

(8) Participation in available community-based programs, including community service; or (9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor:

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(1) Diversion programs specified under paragraphs (a) (1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified paragraphs(a)and (b) above; (2) Written or oral reprimand or citation; (3) Fine: (4) Payment of the cost of the proceedings; or (5) Institutional care and custody.149 under

Role of Schools
The law requires that educational institutions should work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and the reintegration of the child in conflict with the law. 150 Schools must provide adequate necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law.151 In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under an alternative learning system with basic literacy program or non-formal education accreditation equivalency system.152 ***

149 Chapter 2, R.A. 9344. 150 Ibid., Section 13. 151 Ibid. 152 Ibid.