Callanta Notes - Crim 2

Elements and Notes in Criminal Law Book II by RENE CALLANTA
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TITLE ONE
CRIMES AGAINST NATIONAL SECURITY

Crimes against national security

1. Treason (Art. 114);

2. Conspiracy and proposal to commit treason (Art. 115);

3. Misprision of treason (Art. 116); and

4. Espionage (Art. 117).

Crimes against the law of nations

1. Inciting to war or giving motives for reprisals (Art. 118);

2. Violation of neutrality (Art. 119);

3. Corresponding with hostile country (Art. 120);

4. Flight to enemy's country (Art. 121); and

5. Piracy in general and mutiny on the high seas (Art. 122).

The crimes under this title can be prosecuted even if the criminal act or acts
were committed outside the Philippine territorial jurisdiction. However,
prosecution can proceed only if the offender is within Philippine territory or
brought to the Philippines pursuant to an extradition treaty. This is one of the
instances where the Revised Penal Code may be given extra-territorial
application under Article 2 (5) thereof. In the case of crimes against the law of
nations, the offender can be prosecuted whenever he may be found because the
crimes are regarded as committed against humanity in general.

Article 114
TREASON

ELEMENTS:
a. That the offender owes allegiance to the Government of the
Philippines

b. That there is a war in which the Philippines is involved

c. That the offender either

1) Levies war against the government,
1. breech of allegiance
2. actual assembling of men
3. for the purpose of executing a treasonable design

2) Adheres to the enemies, giving them aid and comfort
1. breech of allegiance
2. adherence


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3. giving aid or comfort to the enemy

Requirements of levying war
1) Actual assembling of men;

2) To execute a treasonable design by force;

3) Intent is to deliver the country in whole or in part to the enemy; and

4) Collaboration with foreign enemy or some foreign sovereign
Success is not important. What matters is the actual assembly of men and the
execution of treasonable design by force.

Ways of proving treason:

a. 2 witnesses testifying to same overt act

The testimonies must refer to the same act, place and moment of time. Treason
cannot be proved by circumstantial evidence or by extrajudicial confession.

Example: X saw arms landed in La Union and loaded into a motor vehicle.
At this stage, not sufficient to convict yet. Y later saw the arms unloaded
in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO.
Because the law requires that 2 witnesses see the SAME OVERT ACT.

b. Confession of the accused in open court.
Arraignment, pre-trial, trial OK.

1. If he has pleaded NOT guilty already during arraignment, he can still
confess in open court by stating the particular acts constituting
treason.

2. During trial, simply saying Im guilty is not enough.

3. Withdrawing plea of not guilty during arraignment not necessary

4. If during arraignment he pleads guilty, court will ask if the accused
understands is plea. Submission of affidavit during trial, even if
assisted by counsel is not enough.

Treason: breach of allegiance to the government, committed by a person
who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It
is permanent or temporary depending on whether the person is a citizen or
an alien.

Evident premeditation, superior strength and treachery are circumstances
inherent in treason, and are, therefore, not aggravating.

Treason cannot be committed in times of peace, only in times of war actual
hostilities. But no need for declaration of war


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Not Treasonous:
a. Acceptance of public office and discharge of official duties under the
enemy does not constitute per se the felony of treason (exception:
when it is policy determining)

b. Serving in a puppet government (ministerial functions) and in order to
serve the populace is NOT treasonous. But it is treason if: a) there is
discretion involved; b) inflicts harm on Filipinos; c) it is
disadvantageous to them.

c. Purpose of offender: to deliver the Philippines to enemy country; if
merely to change officials not treason

On Citizenship
a. Filipino citizens can commit treason outside the Philippines. But that of
an alien must be committed in the Philippines.

b. Only Filipino citizens or permanent resident aliens can be held liable

c. Alien: with permanent resident status from the BID it is neither the
length of stay in the Philippines nor the marriage with a Filipino that
matters.

Actual hostilities may determine the date of the commencement of war

No such thing as attempted treason; mere attempt consummates the crime

Giving aid or comfort material element, enhances forces of the enemy
country.

Acts which strengthen or tend to strengthen the enemy in the conduct of war
against the traitors country or that which weaken and tend to weaken the power
of the same.

Example: Financing arms procurement of enemy country. But giving of
shelter is not necessarily giving aid and comfort.

Adherence and giving aid or comfort must concur together.

Adherence: when a citizen intellectually or emotionally favors the enemy
and harbors convictions disloyal to his countrys policy. But membership in
the police force during the occupation is NOT treason.
Example: Giving information to, or commandeering foodstuffs for the enemy.

Adherence may be proved by: (1) one witness; (2) from the nature of the
act itself; (3) from the circumstances surrounding the act.

When this adherence or sympathies are converted into aid and comfort, only
then they take material forM. This material form is now what is made punishable.
It is usually manifested by the offender in giving information, commandeering
foodstuffs, serving as spy and supplying the enemy with war materials.

Treason is a CONTINUING CRIME. Even after the war, offender can be
prosecuted.


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Treason is a continuing offense. It can be committed by a single act or by a
series of acts. It can be committed in one single time or at different times and
only one criminal intent. In construing the provisions relating to the commission
of several acts, the same must be done in pursuance or furtherance of the act of
treason.

No matter how many acts of treason are committed by the offender, he will be
liable for only one crime of treason.

If you convict a person for treason by reason of irresistible force or
uncontrollable fear, you may use Art.12. No treason through negligence

In the imposition of the penalty for the crime of treason, the court may disregard
the presence of mitigating and aggravating circumstances. It may consider only
the number, nature and gravity of the acts established during the trial. The
imposition of the penalty rests largely on the exercise of judicial discretion.

Defenses that may be availed of by the accused.

1. Duress or uncontrollable fear of immediate death; and

2. Lawful obedience to a de facto government.

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

In the act of levying war or giving aid or comfort to the enemy, murder, robbery,
arson or falsification may be committed by the offender. BUT the offender does
not commit the crime of treason complexed with common crimes because such
crimes are inherent to treason, being an indispensable element of the same.

Treason distinguished from Rebellion.

The manner in which both crimes are committed in the same. In treason
however, the purpose of the offender is to deliver the government to the enemy
country or to a foreign power. In rebellion, the purpose of the rebels is to
substitute the government with their own form of government. No foreign power
is involved.

Treason distinguished from Sedition.

In treason, the offender repudiates his allegiance to the government by means
of force or intimidation. He does not recognize the supreme authority of the
State. He violates his allegiance by fighting the forces of the duly constituted
authorities.

In sedition, the offender disagrees with certain policies of the State and seeks
to disturb public peace by raising a commotion or public uprising.


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Article 115
CONSPIRACY TO COMMIT TREASON

ELEMENTS:
a. In time of war

b. 2 or more persons come to an agreement to

1. levy war against the government, or

2. adhere to the enemies and to give them aid or comfort,

c. They decide to commit it

ELEMENTS OF PROPOSAL TO COMMIT TREASON
a. In time of war

b. A person who has decided to levy war against the
government, or to adhere to the enemies and to give them aid
or comfort, proposes its execution to some other person/s.

Mere agreement and decisions to commit treason is punishable

Mere proposal even without acceptance is punishable too. If the other
accepts, it is already conspiracy.

While Treason as a crime should be established by the two-witness rule, the
same is not observed when the crime committed conspiracy to commit treason
or when it is only a proposal to commit treason.

Article 116
MISPRISION OF TREASON

ELEMENTS:
a. That the offender must be owing allegiance to the government,
and not a foreigner

b. That he has knowledge of any conspiracy (to commit treason)
against the government

c. That he conceals or does not disclose and make known the
same as soon as possible to the governor or fiscal of the
province or the mayor or fiscal of the city in which he resides
While in treason, even aliens can commit said crime because of the amendment
to the article, no such amendment was made in misprision of treason. Misprision
of treason is a crime that may be committed only by citizens of the Philippines.

Offender is punished as an accessory to the crime of treason

Take note that the offender is a principal to the crime of misprision of treason,
yet he is penalized only as an accessory. In the imposition of the penalty, the
court is not bound by the provisions of Article 63 and 64, referring to indivisible


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penalties. In the presence of mitigating and aggravating circumstances, the
offender is punished two degrees lower than the penalty for the crime of
treason.

The criminal liability arises if the treasonous activity was still at the
conspiratorial stage

This crime does not apply if the crime of treason is already committed

Crime of omission

This is a felony by omission although committed with dolo, not with culpa.

To report within a reasonable time depends on time, place and
circumstance the RPC did not fix time.

RPC states 4 individuals, what if you report to some other high-ranking
government official? Ex. PNP Director? Judge Pimentel says any govt official
of the DILG is OK.

Whether the conspirators are parents or children, and the ones who learn the
conspiracy is a parent or child, they are required to report the same. The reason
is that although blood is thicker than water so to speak, when it comes to
security of the state, blood relationship is always subservient to national security.
Article 20 does not apply here because the persons found liable for this crime are
not considered accessories; they are treated as principals.

Article 117
Espionage by entering, without authority therefor, warship, fort, or
naval or military establishments or reservation to obtain any
information, plans, photographs or other data of a confidential nature
relative to the defense of the Philippines.

ELEMENTS:
a. 1. That the offender enters any of the places mentioned therein

2. That he has no authority therefore;

b. That his purpose is to obtain information, plans, photographs or
other data of a confidential nature relative to the defense of the
Philippines

Under the first mode of committing espionage, the offender must have the
intention to obtain information relative to the defense of the PHIL. It is sufficient
that he entered the prohibited premises. Here, the offender is any private
individual, whether an alien or a citizen of the Philippines, or a public officer.

Espionage by disclosing to the representative of a foreign nation the
contents of the articles, data, or information referred to in paragraph 1
of Article 117, which he had in his possession by reason of the public
office holds


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ELEMENTS:
a. That the offender is a public officer

b. That he has in his possession the articles, data or information
referred to in par 1 of art 117, by reason of the public office he
holds

c. That he discloses their contents to a representative of a foreign
nation

Purpose: to gather data

Under the second mode, the offender must be a public officer who has in
possession the articles, data or information by reason of the office he holds.
Taking advantage of his official position, he reveals or discloses the information
which are confidential and are relevant to the defense of the Philippines.

Espionage: the offense of gathering, transmitting, or losing information
respecting the national defense with the intent or reason to believe that the
information is to be used to the injury of the Philippines or the advantage of
any foreign nation. It is not conditioned on citizenship.

Not necessary that Philippines is at war with the country to which the
information was revealed. What is important is that the information related is
connected with the defense system of the Philippines.

Wiretapping is NOT espionage if the purpose is not something connected with
the defense

Commonwealth Act No. 616 An Act to Punish Espionage and Other
Offenses against National Security

Acts punished

1. Unlawfully obtaining or permitting to be obtained information affecting
national defense;

2. Unlawful disclosing of information affecting national defense;

3. Disloyal acts or words in times of peace;

4. Disloyal acts or words in times of war;

5. Conspiracy to violate preceding sections;

6. Harboring or concealing violators of law. and

7. Photographing vital military information

CRIMES AGAINST LAWS OF NATIONS


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In crimes against the law of nations, the offenders can be prosecuted anywhere
in the world because these crimes are considered as against humanity in
general, like piracy and mutiny. Crimes against national security can be tried
only in the Philippines, as there is a need to bring the offender here before he
can be made to suffer the consequences of the law. The acts against national
security may be committed abroad and still be punishable under our law, but it
can not be tried under foreign law.

Article 118
INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS

ELEMENTS:
a. That the offender performs unlawful or unauthorized acts

b. That such acts provoke or give occasion for a war involving or
liable to involve the Philippines or expose Filipino citizens to
reprisals on their persons or property
Crime is committed in time of peace, intent is immaterial

Inciting to war offender is any person

Reprisals is not limited to military action, it could be economic reprisals, or
denial of entry into their country.

Example. X burns Chinese flag. If China bans the entry of Filipinos into China,
that is already reprisal.

Article 119
VIOLATION OF NEUTRALITY

ELEMENTS:
a. That there is war in which the Philippines is not involved

b. That there is a regulation issued by competent authority for the
purpose of enforcing neutrality

c. That the offender violates such regulation

Govt must have declared the neutrality of the Phil in a war between 2 other
countries

The regulation must be issued by a competent authority like the President of the
Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a
war between different countries in which the Philippines is not taking sides.

It is neutrality of the Phil that is violated

Congress has the right to declare neutrality

The violations can be done either by means of dolo or by means of culpa. So
violation of neutrality can be committed through reckless imprudence.


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Article 120
CORRESPONDENCE WITH HOSTILE COUNTRY

ELEMENTS:
a. That it is in time of war in which the Philippines is involved

b. That the offender makes correspondence with an enemy country
or territory occupied by enemy troops

c. That the correspondence is either

1. prohibited by the government, or

2. carried on in ciphers or conventional signs, or

3. containing notice or information which might be useful to the
enemy

Circumstances qualifying the offense:
a. notice or information might be useful to the enemy

b. offender intended to aid the enemy

Hostile country exist only during hostilities or after the declaration of war

Correspondence to enemy country correspondence to officials of
enemy country even if related to you.

It is not correspondence with private individual in enemy country

If ciphers were used, no need for prohibition

If ciphers were not used, there is a need for prohibition

In any case, it must be correspondence with the enemy country

Doesnt matter if correspondence contains innocent matters if prohibited,
punishable

Article 121
FLIGHT TO ENEMYS COUNTRY

ELEMENTS
a. That there is a war in which the Philippines is involved

b. That the offender (Filipino or resident alien) must be owing
allegiance to the government

c. That the offender attempts to flee or go to enemy country

d. That going to enemy country is prohibited by competent
authority


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Mere attempt consummates the crime

There must be a prohibition. If none, even if went to enemy country no
violation

Alien resident may be guilty here.

Article 122
PIRACY

2 Ways of Committing Piracy
a. By attacking or seizing a vessel on the high seas or in the Philippine
waters (PD 532)

b. By seizing the whole or part of the cargo of said vehicles, its equipment or
personal belongings of its complement or passengers

Elements:
a. That a vessel is on the high seas/Philippine waters

b. That the offenders are not members of its complement or
passengers of the vessel

c. That the offenders

1. attack or seize that vessel or (hence, if committed by crew or
passengers, the crime is not piracy but robbery in the high seas)

2. seize the whole or part of the cargo of said vessel, its
equipment or personal belongings of its complement or
passengers

High seas: any waters on the sea coast which are without the boundaries of
the low water mark although such waters may be in the jurisdictional limits of
a foreign govt

Piracy in high seas jurisdiction is with any court where offenders are
found or arrested

Piracy in internal waters jurisdiction is only with Philippine courts

For purpose of Anti-Fencing Law, piracy is part of robbery and theft

Piracy Mutiny
Robbery or forcible degradation on
the high seas, without lawful
authority and done with animo
lucrandi and in the spirit and
intention of universal hostility.
Unlawful resistance to a superior officer,
or the raising of commotion and
disturbances on board a ship against the
authority of its commander

Intent to gain is an element. No criminal intent
Attack from outside. Offenders are
strangers to the vessel.
Attack from the inside.


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under the amended article, piracy can only be committed by a person who is
not a passenger nor member of the complement of the vessel irrespective of
venue. So if a passenger or complement of the vessel commits acts
of robbery in the high seas, the crime is robbery, not piracy.
If in the Phil. waters still piracy

However, despite the amendment, P.D. No. 532 may still apply where the
offender is not stranger to the vessel since it provides: Any attack upon or seize
of any vessel, or the taking away of the whole of part thereof or its cargo,
equipment or the personal belongings of its complement or passengers,
irrespective of the value hereof, by means of violence against or intimidation of
persons or force upon things, committed by any person, including a passenger or
member of the complement of said vessel, in Philippine waters, shall be
considered as piracy. The offenders shall be considered as pirates and punished
as hereinafter provided. After all, under the Revised Penal Code, for one to be
called a pirate, the offender must be a stranger to the vessel.

While the Article 122 limits the offenders to non-passengers or non-members
of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or
taking away the whole or part thereof or its cargo, equipment or personal
belongings of its complement or passengers committed by any person
including a passenger or member of the complement of said vessel shall be
considered Piracy.

Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding
pirates or abetting piracy is penalized as a crime distinct from piracy. Said
section penalizes any person who knowingly and in any manner aids or protects
pirates, such as giving them information about the movement of the police or
other peace officers of the government, or acquires or receives property taken
by such pirates, or in any manner derives any benefit therefrom; or who directly
or indirectly abets the commission of piracy. Also, it is expressly provided in the
same section that the offender shall be considered as an accomplice of the
principal offenders and punished in accordance with the Revised Penal Code.
This provision of Presidential Decree No. 532 with respect to piracy in Philippine
water has not been incorporated in the Revised Penal Code. Neither may it be
considered repealed by Republic Act No. 7659 since there is nothing in the
amendatory law is inconsistent with said section. Apparently, there is still the
crime of abetting piracy in Philippine waters under Presidential Decree No. 532.

Considering that the essence of piracy is one of robbery, any taking in a vessel
with force upon things or with violence or intimidation against person is
employed will always be piracy. It cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on board a vessel. But if the taking is
without violence or intimidation on persons or force upon things, the crime of
piracy cannot be committed, but only theft.

Elements of mutiny


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1) The vessel is on the high seas or Philippine waters;

2) Offenders are either members of its complement, or passengers of
the vessel;

3) Offenders either

a. attack or seize the vessel; or

b. seize the whole or part of the cargo, its equipment, or
personal belongings of the crew or passengers.

Mutiny is the unlawful resistance to a superior officer, or the raising of
commotions and disturbances aboard a ship against the authority of its
commander.

Article 123
QUALIFIED PIRACY

QUALIFYING CIRCUMSTANCES:
a. Whenever they have seized a vessel by boarding or firing upon
the same

b. Whenever the pirates have abandoned their victims without
means of saving themselves

c. Whenever the crime is accompanied by murder, homicide,
physical injuries, or rape. (the above may result to qualified
mutiny)

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

Parricide/infanticide should be included (Judge Pimentel)

Murder/rape/homicide/physical injuries must have been committed on the
passengers or complement

In piracy, where rape, murder or homicide is committed, the mandatory penalty
of death is imposable. This means that even if the accused enters a plea of
guilty, the penalty of death will still be imposed because death is a single and
indispensable penalty. (People vs. Rodriguez, 135 SCRA 485)

The penalty for qualified piracy is reclusion perpetua to death. If any of the
circumstances enumerated under the law is proven or established, the
mandatory penalty of death should be imposed. The presence of mitigating or
aggravating circumstances will be ignored by the court.

Although in Article 123 merely refers to qualified piracy, there is also the crime of
qualified mutiny. Mutiny is qualified under the following circumstances:


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(1) When the offenders abandoned the victims without means of saving
themselves; or

(2) When the mutiny is accompanied by rape, murder, homicide, or physical
injuries.

Note that the first circumstance which qualifies piracy does not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking Law)

Anti hi-jacking is another kind of piracy which is committed in an aircraft. In
other countries, this crime is known as aircraft piracy.

Four situations governed by anti hi-jacking law:

(1) usurping or seizing control of an aircraft of Philippine registry while it is in
flight, compelling the pilots thereof to change the course or destination of
the aircraft;

(2) usurping or seizing control of an aircraft of foreign registry while within
Philippine territory, compelling the pilots thereof to land in any part of
Philippine territory;

(3) carrying or loading on board an aircraft operating as a public utility
passenger aircraft in the Philippines, any flammable, corrosive, explosive,
or poisonous substance; and

(4) loading, shipping, or transporting on board a cargo aircraft operating as a
public utility in the Philippines, any flammable, corrosive, explosive, or
poisonous substance if this was done not in accordance with the rules and
regulations set and promulgated by the Air Transportation Office on this
matter.

Between numbers 1 and 2, the point of distinction is whether the aircraft is of
Philippine registry or foreign registry. The common bar question on this law
usually involves number 1. The important thing is that before the anti hi-jacking
law can apply, the aircraft must be in flight. If not in flight, whatever crimes
committed shall be governed by the Revised Penal Code. The law makes a
distinction between aircraft of a foreign registry and of Philippine registry. If the
aircraft subject of the hi-jack is of Philippine registry, it should be in flight
at the time of the hi-jacking. Otherwise, the anti hi-jacking law will not apply and
the crime is still punished under the Revised Penal Code. The correlative crime
may be one of grave coercion or grave threat. If somebody is killed, the crime is
homicide or murder, as the case may be. If there are some explosives carried
there, the crime is destructive arson. Explosives are by nature pyro-techniques.
Destruction of property with the use of pyro-technique is destructive arson. If
there is illegally possessed or carried firearm, other special laws will apply.

On the other hand, if the aircraft is of foreign registry, the law does not
require that it be in flight before the anti hi-jacking law can apply. This is
because aircrafts of foreign registry are considered in transit while they are in
foreign countries. Although they may have been in a foreign country, technically


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they are still in flight, because they have to move out of that foreign country. So
even if any of the acts mentioned were committed while the exterior doors of the
foreign aircraft were still open, the anti hi-jacking law will already govern.

Note that under this law, an aircraft is considered in flight from the moment
all exterior doors are closed following embarkation until such time when the
same doors are again opened for disembarkation. This means that there are
passengers that boarded. So if the doors are closed to bring the aircraft to the
hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to
be already in flight even if its engine has not yet been started.

Questions & Answers

1. The pilots of the Pan Am aircraft were accosted by some armed
men and were told to proceed to the aircraft to fly it to a foreign destination.
The armed men walked with the pilots and went on board the aircraft. But
before they could do anything on the aircraft, alert marshals arrested them.
What crime was committed?

The criminal intent definitely is to take control of the aircraft, which is hi-
jacking. It is a question now of whether the anti-hi-jacking law shall govern.

The anti hi-jacking law is applicable in this case. Even if the aircraft is not
yet about to fly, the requirement that it be in flight does not hold true when in
comes to aircraft of foreign registry. Even if the problem does not say that all
exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign
registry, under the law, simply usurping or seizing control is enough as long as
the aircraft is within Philippine territory, without the requirement that it be in
flight.

Note, however, that there is no hi-jacking in the attempted stage. This is
a special law where the attempted stage is not punishable.

2. A Philippine Air Lines aircraft is bound for Davao. While the pilot
and co-pilot are taking their snacks at the airport lounge, some of the armed
men were also there. The pilots were followed by these men on their way to the
aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms
and gave instructions where to fly the aircraft. Does the anti hi-jacking law
apply?

No. The passengers have yet to board the aircraft. If at that time, the
offenders are apprehended, the law will not apply because the aircraft is not yet
in flight. Note that the aircraft is of Philippine registry.

3. While the stewardess of a Philippine Air Lines plane bound for Cebu
was waiting for the passenger manifest, two of its passengers seated near the
pilot surreptitiously entered the pilot cockpit. At gunpoint, they directed the pilot
to fly the aircraft to the Middle East. However, before the pilot could fly the
aircraft towards the Middle East, the offenders were subdued and the aircraft
landed. What crime was committed?


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The aircraft was not yet in flight. Considering that the stewardess was
still waiting for the passenger manifest, the doors were still open. Hence, the
anti hi-jacking law is not applicable. Instead, the Revised Penal Code shall
govern. The crime committed was grave coercion or grave threat, depending
upon whether or not any serious offense violence was inflicted upon the pilot.

However, if the aircraft were of foreign registry, the act would already be
subject to the anti hi-jacking law because there is no requirement for foreign
aircraft to be in flight before such law would apply. The reason for the
distinction is that as long as such aircraft has not returned to its home base,
technically, it is still considered in transit or in flight.

As to numbers 3 and 4 of Republic Act No. 6235, the distinction is whether the
aircraft is a passenger aircraft or a cargo aircraft. In both cases, however, the
law applies only to public utility aircraft in the Philippines. Private
aircrafts are not subject to the anti hi-jacking law, in so far as transporting
prohibited substances are concerned.

If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any
prohibited, flammable, corrosive, or explosive substance is a crime under
Republic Act No. 6235. But if the aircraft is only a cargo aircraft, the law is
violated only when the transporting of the prohibited substance was not done in
accordance with the rules and regulations prescribed by the Air Transportation
Office in the matter of shipment of such things. The Board of Transportation
provides the manner of packing of such kind of articles, the quantity in which
they may be loaded at any time, etc. Otherwise, the anti hi-jacking law does not
apply.

However, under Section 7, any physical injury or damage to property which
would result from the carrying or loading of the flammable, corrosive, explosive,
or poisonous substance in an aircraft, the offender shall be prosecuted not only
for violation of Republic Act No. 6235, but also for the crime of physical injuries
or damage to property, as the case may be, under the Revised Penal Code.
There will be two prosecutions here. Other than this situation, the crime of
physical injuries will be absorbed. If the explosives were planted in the aircraft
to blow up the aircraft, the circumstance will qualify the penalty and that is not
punishable as a separate crime for murder. The penalty is increased under the
anti hi-jacking law.

All other acts outside of the four are merely qualifying circumstances and would
bring about higher penalty. Such acts would not constitute another crime. So
the killing or explosion will only qualify the penalty to a higher one.

Questions & Answers

1. In the course of the hi-jack, a passenger or complement was shot
and killed. What crime or crimes were committed?

The crime remains to be a violation of the anti hi-jacking law, but the
penalty thereof shall be higher because a passenger or complement of the
aircraft had been killed. The crime of homicide or murder is not committed.


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2. The hi-jackers threatened to detonate a bomb in the course of the
hi-jack. What crime or crimes were committed?

Again, the crime is violation of the anti hi-jacking law. The separate crime
of grave threat is not committed. This is considered as a qualifying circumstance
that shall serve to increase the penalty.

TITLE TWO

CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

Crimes against the fundamental laws of the State

1. Arbitrary detention (Art. 124);

2. Delay in the delivery of detained persons to the proper judicial authorities
(Art. 125);

3. Delaying release (Art. 126);

4. Expulsion (Art. 127);

5. Violation of domicile (Art. 128);

6. Search warrants maliciously obtained and abuse in the service of those
legally obtained (Art. 129);

7. Searching domicile without witnesses (Art. 130);

8. Prohibition, interruption, and dissolution of peaceful meetings (Art. 131);

9. Interruption of religious worship (Art. 132); and

10. Offending the religious feelings (Art. 133);

Under this title, the offenders are public officers, except as to the last crime
offending the religious feelings under Article 133, which refers to any person.
The public officers who may be held liable are only those acting under supposed
exercise of official functions, albeit illegally. But private persons may also be
liable under this title as when a private person conspires with a public officer.
What is required is that the principal offender must be a public officer. Thus, if a
private person conspires with a public officer, or becomes an accessory or
accomplice, the private person also becomes liable for the same crime. But a
private person acting alone cannot commit the crimes under Article 124 to 132 of
this title.

Classes of Arbitrary Detention:
a. By detaining a person without legal ground
b. Delay in the delivery of detained persons to the proper judicial authorities
c. Delaying release

Article 124


17
ARBITRARY DETENTION

ELEMENTS:
a. That the offender is a public officer or employee (whose official
duties include the authority to make an arrest and detain persons;
jurisdiction to maintain peace and order).

b. That he detains a person (actual restraint).

c. That the detention was without legal grounds (cannot be committed
if with warrant).

Detention: when a person is placed in confinement or there is a restraint on
his person.

Only those public officers whose official duties carry with it the authority to make
an arrest and detain persons can be guilty of this crime. So, if the offender does
not possess such authority, the crime committed by him is illegal detention.

Though the elements specify that the offender be a public officer or
employee, private individuals who conspire with public officers can also be
liable.

In a case decided by the Supreme Court a Barangay Chairman who unlawfully
detains another was held to be guilty of the crime of arbitrary detention. This is
because he is a person in authority vested with the jurisdiction to maintain peace
and order within his barangay. In the maintenance of such peace and order, he
may cause the arrest and detention of troublemakers or those who disturb the
peace and order within his barangay. But if the legal basis for the apprehension
and detention does not exist, then the detention becomes arbitrary.

Legal grounds for the detention of any person:
a. commission of a crime

b. violent insanity or other ailment requiring compulsory confinement of the
patient in a hospital

c. escaped prisoner

When the peace officers acted in good faith even if the three (3) grounds
mentioned above are not obtaining, there is no Arbitrary Detention.

Without legal grounds:
a. he has not committed any crime or no reasonable ground of suspicion
that he has committed a crime

b. not suffering from violent insanity or any other ailment requiring
compulsory confinement in a hospital

Grounds for warrantless arrest:
a. Crime is about to be, is being, has been committed in his presence

b. Officer must have probable cause to believe based on personal knowledge
of facts and circumstances that the person probably committed the crime


18

For escaped prisoner no need for warrant

Example: Y was killed by unknown assailant. Officers got a tip and arrested X.
X voluntarily admitted to the officers that he did it although he was not
asked. X was detained immediately. According to the SC, there was NO
arbitrary detention. Why? Because once X made a confession, the officers
had a right to arrest him.

Arbitrary detention can be committed thru simple imprudence or negligence.
(People vs. Misa)

Periods of Detention penalized:

1. Detention not exceeding three days;

2. Detention for more than three days but not more than 15 days;

3. Detention for more than 15 days but not more than 6 months; and

4. Detention for more than 6 months.

Continuing crime is different from a continuous crime

Ramos v. Enrile: Rebels later on retire. According to the SC, once you have
committed rebellion and have not been punished or amnestied, then the
rebels continue to engage in rebellion, unless the rebels renounce his
affiliation. Arrest can be made without a warrant because this is a continuing
crime.
Distinction between arbitrary detention and illegal detention

1. In arbitrary detention --

The principal offender must be a public officer. Civilians cannot commit
the crime of arbitrary detention except when they conspire with a public
officer committing this crime, or become an accomplice or accessory to
the crime committed by the public officer; and

The offender who is a public officer has a duty which carries with it the
authority to detain a person.

2. In illegal detention --

The principal offender is a private person. But a public officer can commit
the crime of illegal detention when he is acting in a private capacity or
beyond the scope of his official duty, or when he becomes an accomplice
or accessory to the crime committed by a private person.

The offender, even if he is a public officer, does not include as his
function the power to arrest and detain a person, unless he conspires with
a public officer committing arbitrary detention.

Whether the crime is arbitrary detention or illegal detention, it is necessary that
there must be an actual restraint of liberty of the offended party. If there is no


19
actual restraint, as the offended party may still go to the place where he wants
to go, even though there have been warnings, the crime of arbitrary detention or
illegal detention is not committed. There is either grave or light threat.

However, if the victim is under guard in his movement such that there is still
restraint of liberty, then the crime of either arbitrary or illegal detention is still
committed.

Distinction between arbitrary detention and unlawful arrest

(1) As to offender

In arbitrary detention, the offender is a public officer possessed with
authority to make arrests.

In unlawful arrest, the offender may be any person.

(2) As to criminal intent

In arbitrary detention, the main reason for detaining the offended party is
to deny him of his liberty.

In unlawful arrest, the purpose is 1) to accuse the offended party of a
crime he did not commit; 2) to deliver the person to the proper authority;
and 3) to file the necessary charges in a way trying to incriminate him.

When a person is unlawfully arrested, his subsequent detention is without legal
grounds.

Article 125
DELAY IN THE DELIVERY OF DETAINED PERSONS

ELEMENTS:
a. That the offender is a public officer or employee

b. That he has detained a person for some legal grounds

c. That he fails to deliver such person to the proper judicial
authority within:
1. 12 hours, if detained for crimes/offenses punishable by light
penalties, or their equivalent
2. 18 hours, for crimes/offenses punishable by correctional penalties,
or their equivalent or
3. 36 hours, for crimes/offenses punishable by capital punishment or
afflictive penalties, or their equivalent
Article 125 covers situations wherein the person detained has been arrested
without a warrant but his arrest is nonetheless lawful. It is a felony committed by
omission because of the failure of the offender to deliver the detained person to
the proper judicial authority within 12 hours, 18 hours and 36 hours as the case
may be.

At the beginning, the detention is legal since it is in the pursuance of a lawful
arrest. However, the detention becomes arbitrary when the period thereof


20
exceeds 12, 18 or 36 hours, as the case may be, depending on whether the
crime is punished by light, correctional or afflictive penalty or their equivalent.

Really means delay in filing necessary information or charging of person
detained in court.
May be waived if a preliminary investigation is asked for.

Under the Revised Rules of Court, when the person arrested is arrested for a
crime which gives him the right to preliminary investigation and he wants to avail
his right to a preliminary investigation, he would have to waive in writing his
rights under Article 125 so that the arresting officer will not immediately file the
case with the court that will exercise jurisdiction over the case. If he does not
want to waive this in writing, the arresting officer will have to comply with Article
125 and file the case immediately in court without preliminary investigation. In
such case, the arrested person, within five days after learning that the case has
been filed in court without preliminary investigation, may ask for preliminary
investigation. In this case, the public officer who made the arrest will no longer
be liable for violation of Article 125.

Does not contemplate actual physical delivery but at least there must be a
complaint filed. Duty complied with upon the filing of the complaint with the
judicial authority (courts, prosecutors though technically not a judicial
authority, for purposes of this article, hes considered as one.)

Delivery of detained person consists in making charge of filing a compliant
against the prisoner with the proper judicial authority. It does not involve the
physical delivery of the prisoner before the judge (Sayo vs. Chief of Police).

The filing of the information in court does not cure illegality of detention.
Neither does it affect the legality of the confinement under process issued by
the court.

To escape from this, officers usually ask accused to execute a waiver which
should be under oath and with assistance of counsel. Such waiver is not
violative of the accused constitutional right.

What is length of waiver? Light offense 5 days. Serious and less serious
offenses 7 to 10 days. (Judge Pimentel)

Article does not apply when arrest is via a warrant of arrest

Q. Within what period should a police officer who has arrested a person
under a warrant of arrest turn over the arrested person to the judicial authority?

A. There is no time limit specified except that the return must be made
within a reasonable time. The period fixed by law under Article 125 does not
apply because the arrest was made by virtue of a warrant of arrest.

If offender is a private person, crime is illegal detention

Before Article 125 may be applied, it is necessary that initially, the detention
of the arrested person must be lawful because the arrest is based on legal
grounds. If the arrest is made without a warrant, this constitutes an unlawful
arrest. Article 269(unlawful arrest), not Article 125, will apply. If the arrest is


21
not based on legal grounds, the arrest is pure and simple arbitrary detention.
Article 125 contemplates a situation where the arrest was made without
warrant but based on legal grounds. This is known as citizens arrest.

A police officer has no authority to arrest and detain a person on the basis
merely of the complaint of the offended party, even if after investigation he
becomes convinced that the accused is guilty of the offense charged. What
the complainant may do is to file a complaint with the court and ask for the
issuance of a warrant of arrest.

Arbitrary Detention (124) Delay in Delivery of Detained (125)
Detention is illegal from the beginning. Detention is legal in the beginning, but
illegality starts from the expiration of the
specified periods without the persons
detained having been delivered to the
proper judicial authority.

Article 126
DELAYING RELEASE

ELEMENTS:

b. That there is a judicial or executive order for the release of a
prisoner or detention prisoner, or that there is a proceeding upon
a petition for the liberation of such person

c. That the offender without good reason delays:

1. the service of the notice of such order to the prisoner, or

2. the performance of such judicial or executive order for the
release of the prisoner, or
3. the proceedings upon a petition for the release of such person

Three acts are punishable:
a. delaying the performance of a judicial or executive order for the release of
a prisoner

b. delaying the service of notice of such order to said prisoner

c. delaying the proceedings upon any petition for the liberation of such
person

Wardens and jailers are the persons most likely to violate this provision

Provision does not include legislation

Article 127
EXPULSION

ELEMENTS:


22

b. That he expels any person from the Philippines, or compels a
person to change his residence

c. That the offender is not authorized to do so by law

2 acts punishable:
a. by expelling a person from the Philippines

b. by compelling a person to change his residence

The essence of this crime is coercion but the specific crime is expulsion when
committed by a public officer. If committed by a private person, the crime is
grave coercion.

In the Philippines, only the President of the Republic has the power to deport
aliens whose continued stay in the country constitutes a menace to the peace
and safety of the community.

In the case of Filipino citizens, only the court, by final judgment, can order a
person to change his residence.

In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila
wanted to make the city free from prostitution. He ordered certain prostitutes to
be transferred to Davao, without observing due processes since they have not
been charged with any crime at all. It was held that the crime committed was
expulsion.

Does not include undesirable aliens; destierro; or when sent to prison

Questions & Answers

1. Certain aliens were arrested and they were just put on the first
aircraft which brought them to the country so that they may be out without due
process of law. Was there a crime committed?

Yes. Expulsion.

2. If a Filipino citizen is sent out of the country, what crime is
committed?

Grave coercion, not expulsion, because a Filipino cannot be deported.
This crime refers only to aliens.

If X (Filipino) after he voluntarily left, is refused re-entry is considered
forcing him to change his address here

Threat to national security is not a ground to expel or change his address.

Article 128
VIOLATION OF DOMICILE


23

ELEMENTS:

b. That he is not authorized by judicial order to enter the dwelling
and/or to make a search therein for papers or other effects

c. That he commits any of the following acts:

1. entering any dwelling against the will of the owner thereof

2. searching papers or other effects found therein without the
previous consent of such owner

3. refusing to leave the premises, after having surreptitiously
entered said dwelling and after having been required to leave
the same

Aggravating Circumstance (medium and maximum of penalty imposed):
a. Offense committed at nighttime

b. Papers or effects not constituting evidence of a crime be not returned
immediately

In order to commit this crime, the entry must be against the will of the owner. If
the entry is only without the consent of the owner, the crime of violation of
domicile is not committed.
The prohibition may be expressed or implied. If the signs Do not enter and
Strangers keep out are posted in front of the house or dwelling, then the
prohibition is express. If the door is locked, or even if it is open but these are
barriers to indicate the manifest intention of the owner to bar strangers from
entering, there is implied prohibition.

The primary object of the law is to preserve the privacy of abode of the offended
party. Hence, if the privacy is already lost, as when the offender has been
allowed by the owner to enter the dwelling together with other persons, any
subsequent change of attitude will not restore the privacy which was already
lost. When privacy is waived, trespass to dwelling or violation of domicile cannot
be committed.

If the offender who enters the dwelling against the will of the owner thereof
is a private individual, the crime committed is trespass to dwelling (Art 280)

When a public officer searched a person outside his dwelling without a
search warrant and such person is not legally arrested for an offense, the
crime committed by the public officer is grave coercion, if violence or
intimidation is used (Art 286), or unjust vexation, if there is no violence or
intimidation (Art 287)

A public officer without a search warrant cannot lawfully enter the dwelling
against the will of the owner, even if he knew that someone in that dwelling
is having unlawful possession of opium


24
Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be
arrested enters a premise and closes it thereafter, the public officer, after
giving notice of an arrest, can break into the premise. He shall not be liable
for violation of domicile.

3 acts punishable:
a. person enters dwelling w/o consent or against the will

In the plain view doctrine, public officer should be legally entitled to be
in the place where the effects were found. If he entered the place
illegally and he saw the effects, doctrine inapplicable; thus, he is liable for
violation of domicile.

b. person enters and searches for papers and effects

Public officer who enters with consent searches for paper and effects
without the consent of the owner. Even if he is welcome in the dwelling,
it does not mean he has permission to search.

c. person entered secretly and refuses to leave after being asked to

The act punished is not the entry but the refusal to leave. If the
offender upon being directed to leave, followed and left, there is no crime
of violation of domicile. Entry must be done surreptitiously; without this,
crime may be unjust vexation. But if entering was done against the will of
the occupant of the house, meaning there was express or implied
prohibition from entering the same, even if the occupant does not direct
him to leave, the crime of violation of domicile is already committed
because it would fall in number 1.

Being authorized by law means with search warrant, to save himself
or do some things good for humanity

There are only three recognized instances when search without a warrant is
considered valid, and, therefore, the seizure of any evidence done is also valid.
Outside of these, search would be invalid and the objects seized would not be
admissible in evidence.

(1) Search made incidental to a valid arrest;

(2) Where the search was made on a moving vehicle or vessel such that the
exigency of he situation prevents the searching officer from securing a
search warrant;

(3) When the article seized is within plain view of the officer making the
seizure without making a search therefore.

Papers and effects need not be part of a crime.

Article 129
SEARCH WARRANTS MALICIOUSLY OBTAINED

ELEMENTS:


25

b. That he procures a search warrant

c. That there is no just cause

In order that a search warrant may be issued, it must be based on probable
cause in connection with one offense, to be determined by a judge after
examination under oath of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons
or things to be seized.

This means there was no probable cause determined in obtaining the search
warrant.
Although void, the search warrant is entitled to respect because of
presumption of regularity. One remedy is a motion to quash the search
warrant, not refusal to abide by it. The public officer may also be prosecuted
for perjury, because for him to succeed in obtaining a search warrant without
a probable cause, he must have perjured himself or induced someone to
commit perjury to convince the court.

The true test of lack of just cause is whether the sworn statement filed in
support of the application for search warrant has been done in such a manner
that perjury could be charged and the affiant can be held liable for making such
false statement. The oath required refers to the truth of the facts within the
personal knowledge of the applicant and his witnesses.

ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR
USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT
LEGALLY PROCURED

ELEMENTS:

b. That he has legally procured a search warrant

c. That he exceeds his authority or uses unnecessary severity in
executing the same

Search warrant is valid for 10 days from its date

Search warrant is an order in writing issued in the name of the People,
signed by the judge and directed to a public officer, commanding him to
search for personal property described therein and bring it before the court

No just cause warrant is unjustified

Search limited to what is described in the warrant, all details must be with
particularity

The officer exceeded his authority under the warrant To illustrate, let us say
that there was a pusher in a condo unit. The PNP Narcotics Group obtained a
search warrant but the name of person in the search warrant did not tally with


26
the address stated. Eventually, the person with the same name was found but in
a different address. The occupant resisted but the public officer insisted on the
search. Drugs were found and seized and occupant was prosecuted and
convicted by the trial court. The Supreme Court acquitted him because the
public officers are required to follow the search warrant to the letter. They have
no discretion on the matter. Plain view doctrine is inapplicable since it
presupposes that the officer was legally entitled to be in the place where the
effects where found. Since the entry was illegal, plain view doctrine does not
apply.

Malicious warrant. Example. X was a respondent of a search warrant for
illegal possession of firearms. A return was made. The gun did not belong to
X and the witness had no personal knowledge that there is a gun in that
place.

Abuse examples:
a. X owner was handcuffed while search was going-on.

b. Tank was used to ram gate prior to announcement that a search will be
made
The search warrant is not a license to commit destruction.

c. Persons who were not respondents were searched

Article 130
SEARCHING DOMICILE WITHOUT WITNESSES

ELEMENTS :

b. That he is armed with a search warrant legally procured

c. That he searches the domicile, papers or other belongings of any
person

d. That the owner, or any member of his family, or two witnesses
residing in the same locality are not present

Order of those who must witness the search:

a. Homeowner

b. Members of the family of sufficient age and discretion

c. Responsible members of the community (cant be influenced by the
searching party)

Validity of the search warrant can be questioned only in 2 courts: 1) where
issued or 2) where the case is pending. Latter is preferred for objective
determination.


27
Article 130 has no application to search and seizure made on moving vehicles
because the application of this law is limited to dwelling and personal properties
such as papers and effects found therein.

There are searches and seizures which are authorized by law and which can be
done without the attendance of witnesses. For instance, the Tariff and Customs
Code authorizes persons with police authority under Sec. 2203, to enter; pass
through or search any land, enclosure, warehouse, store or building, not being
used as a dwelling house; and to inspect, search and examine any vessel or
aircraft, and any trunk, package, box or envelope, or any person on board, or to
stop and search and examine any vehicle, beast or person suspected of holding
or conveying any dutiable or prohibited article introduced into the Philippines
contrary to law.

Article 131
PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL
MEETINGS

ELEMENTS:
a. Offender is a public officer or employee

b. He performs any of the ff. acts:

1. prohibiting or interrupting, without legal ground the holding
of a peaceful meeting, or dissolving the same (e.g. denial of
permit in arbitrary manner).

2. hindering any person from joining any lawful association or
from attending any of its meetings.

prohibiting or hindering any person from addressing, either alone or together
with others, any petition to the authorities for the correction of abuses or
redress of grievances

Two criteria to determine whether Article 131 would be violated:

(1) Dangerous tendency rule applicable in times of national unrest such as
to prevent coup detat.

(2) Clear and present danger rule applied in times of peace. Stricter rule.

If the offender is a private individual, the crime is disturbance of public order
(Art 153)

Meeting must be peaceful and there is no legal ground for prohibiting,
dissolving or interrupting that meeting

If in the course of the assembly the participants commit illegal acts like oral
defamation or inciting to sedition, a public officer or law enforcer can stop or
dissolve the meeting. The permit given is not a license to commit a crime.

Meeting is subject to regulation


28
If the permit is denied arbitrarily, Article 131 is violated. If the officer would not
give the permit unless the meeting is held in a particular place which he dictates
defeats the exercise of the right to peaceably assemble, Article 131 is violated.

Offender must be a stranger, not a participant, in the peaceful meeting;
otherwise, its unjust vexation

Interrupting and dissolving a meeting of the municipal council by a public
officer is a crime against the legislative body, not punishable under this article

The person talking on a prohibited subject at a public meeting contrary to
agreement that no speaker should touch on politics may be stopped

But stopping the speaker who was attacking certain churches in public
meeting is a violation of this article

Prohibition must be without lawful cause or without lawful authority

Those holding peaceful meetings must comply with local ordinances.
Example: Ordinance requires permits for meetings in public places. But if
police stops a meeting in a private place because theres no permit, officer is
liable for stopping the meeting.

Distinctions between prohibition, interruption, or dissolution of peaceful meetings
under Article 131, and tumults and other disturbances, under Article 153

(1) As to the participation of the public officer

In Article 131, the public officer is not a participant. As far as the
gathering is concerned, the public officer is a third party.

If the public officer is a participant of the assembly and he prohibits,
interrupts, or dissolves the same, Article 153 is violated if the same is
conducted in a public place.

(2) As to the essence of the crime

In Article 131, the offender must be a public officer and, without any legal
ground, he prohibits, interrupts, or dissolves a peaceful meeting or
assembly to prevent the offended party from exercising his freedom of
speech and that of the assembly to petition a grievance against the
government.

In Article 153, the offender need not be a public officer. The essence of
the crime is that of creating a serious disturbance of any sort in a public
office, public building or even a private place where a public function is
being held.

Article 132
INTERRUPTION OF RELIGIOUS WORSHIP

ELEMENTS:
a. That the officer is a public officer or employee


29

b. That religious ceremonies or manifestations of any religion are
about to take place or are going on

c. That the offender prevents or disturbs the same

Circumstance qualifying the offense: if committed with violence or
threats

Reading of Bible and then attacking certain churches in a public plaza is not a
ceremony or manifestation of religion, but only a meeting of a religious sect.
But if done in a private home, its a religious service

Religious Worship: people in the act of performing religious rites for a
religious ceremony; a manifestation of religion. Ex. Mass, baptism, marriage

X, a private person, boxed a priest while the priest was giving homily and
while the latter was maligning a relative of X. Is X liable? X may be liable
under Art 133 because X is a private person.

When priest is solemnizing marriage, he is a person in authority, although in
other cases, hes not.

Article 133
OFFENDING RELIGIOUS FEELINGS

ELEMENTS:
a. That the acts complained of were performed

1. in a place devoted to religious worship, or (for this element, no
need of religious ceremony, only the place is material)
2. during the celebration of any religious ceremony

b. That the acts must be notoriously offensive to the feelings of the
faithful (deliberate intent to hurt the feelings)

c. The offender is any person

d. There is a deliberate intent to hurt the feelings of the faithful,
directed against religious tenet

If in a place devoted to religious purpose, there is no need for an ongoing
religious ceremony

Example of religious ceremony (acts performed outside the church).
Processions and special prayers for burying dead persons but NOT prayer
rallies

Acts must be directed against religious practice or dogma or ritual for the
purpose of ridicule, as mocking or scoffing or attempting to damage an object
of religious veneration


30
There must be deliberate intent to hurt the feelings of the faithful, mere
arrogance or rudeness is not enough

In determining whether an act is offensive to the feelings of the faithful, the
same must be viewed or judged from the standpoint of the offended religion and
not from the point of view of the offender (People vs. Baes, 68 Phil. 203).

CRIME Nature of Crime Who are
Liable
If Element Missing
Prohibition,
Interruption
and
Dissolution of
Peaceful
Meeting
(131)
Crime against the
fundamental law
of the state
Public officers,
Outsiders
If not by public officer
= tumults
Interruption
of Religious
Worship
(132)
Crime against the
fundamental law
of the state
Public officers,
Outsiders
If by insider = unjust
vexation
If not religious = tumult
or alarms
If not notoriously
offensive = unjust
vexation
Offending the
Religious
Feeling (133)
Crime against
public order
Public officers,
private
persons,
outsiders
If not tumults = alarms
and scandal
If meeting illegal at
onset = inciting to
sedition or rebellion


31

TITLE THREE
CRIMES AGAINST PUBLIC ORDER

Crimes against public order

1. Rebellion or insurrection (Art. 134);

Coup d etat (Art. 134-A)

2. Conspiracy and proposal to commit rebellion (Art. 136);

3. Disloyalty to public officers or employees (Art. 137);

4. Inciting to rebellion (Art. 138);

5. Sedition (Art. 139);

6. Conspiracy to commit sedition (Art. 141);

7. Inciting to sedition (Art. 142);

8. Acts tending to prevent the meeting of Congress and similar bodies (Art.
143);

9. Disturbance of proceedings of Congress or similar bodies (Art. 144);

10. Violation of parliamentary immunity (Art. 145);

11. Illegal assemblies (Art. 146);

12. Illegal associations (Art. 147);

13. Direct assaults (Art. 148);

14. Indirect assaults (Art. 149);

15. Disobedience to summons issued by Congress, its committees, etc., by the
constitutional commissions, its committees, etc. (Art. 150);

16. Resistance and disobedience to a person in authority or the agents of
such person (Art. 151);

17. Tumults and other disturbances of public order (Art. 153);

18. Unlawful use of means of publication and unlawful utterances (Art. 154);

19. Alarms and scandals (Art. 155);

20. Delivering prisoners from jails (Art. 156);

21. Evasion of service of sentence (Art. 157);

22. Evasion on occasion of disorders (Art. 158);


32

23. Violation of conditional pardon (Art. 159); and

24. Commission of another crime during service of penalty imposed for
another previous offense (Art. 160).

Article 134
REBELLION OR INSURRECTION
ELEMENTS:
a. That there be

1. public uprising and

2. taking arms against the government (force/violence)

b. That the purpose of the uprising or movement is either

1. to remove from the allegiance to said government or its laws

i. the territory of the Philippines or any part thereof, or

ii. any body of land, naval or other armed forces, or

2 To deprive the chief executive or congress, wholly or partially,
of any of their powers or prerogatives

Persons liable for rebellion
a. Any person who: 1. promotes
2. maintains, or
3. heads a rebellion or insurrection; or

b. Any person who, while holding any public office or employment, takes
part therein by:
1. engaging in war against the forces of the government

2. destroying property or committing serious violence

3. exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated (Note: diverting
public funds is malversation absorbed in rebellion);

4. Any person merely participating or executing the command of others in
rebellion

The essence of this crime is a public uprising with the taking up of arms. It
requires a multitude of people. It aims to overthrow the duly constituted
government. It does not require the participation of any member of the military
or national police organization or public officers and generally carried out by
civilians. Lastly, the crime can only be committed through force and violence.

The crime of rebellion cannot be committed by a single individual. Invariably, it is
committed by several persons for the purpose of overthrowing the duly
constituted or organized government. In the Philippines, what is known to the


33
ordinary citizen as a symbol of Government would be the barangay, represented
by its officials; the local government represented by the provincial and municipal
officials; and the national government represented by the President, the Chief
Justice and the Senate President and the Speaker of the House of
Representatives.

Success is immaterial, purpose is always political

The crime of rebellion is essentially a political crime. The intention of the rebel is
to substitute himself in place of those who are in power. His method of placing
himself in authority with the use of violence, duress or intimidation, assassination
or the commission of common crimes like murder, kidnapping, arson, robbery
and other heinous crimes in what we call rebellion.

Rebellion used where the object of the movement is completely to
overthrow and supersede the existing government

Insurrection refers to a movement which seeks merely to effect some
change of minor importance to prevent the exercise of govt authority w/
respect to particular matters or subjects

The phrase to remove allegiance from the government is used to emphasize
that the object of the uprising could be limited to certain areas, like isolating
a barangay or municipality or a province in its loyalty to the duly constituted
government or the national government.

Allegiance is a generic term which includes loyalty, civil obedience and civil
service.

The law on rebellion however, does not speak only of allegiance or loss of
territory. It also includes the efforts of the rebel to deprive the President of the
Philippines of the exercise of his power to enforce the law, to exact obedience of
laws and regulations duly enacted and promulgated by the duly constituted
authorities.

Actual clash of arms w/ the forces of the govt, not necessary to convict the
accused who is in conspiracy w/ others actually taking arms against the govt

Purpose of the uprising must be shown but it is not necessary that it be
accomplished

A change of government w/o external participation

RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT actual
participation. If there is no public uprising, the crime is of direct assault.

When any of the objectives of rebellion is pursued but there is no public uprising
in the legal sense, the crime is direct assault of the first form. But if there is
rebellion, with public uprising, direct assault cannot be committed.

Mere giving of aid or comfort is not criminal in the case of rebellion. Merely
sympathizing is not participation, there must be ACTUAL participation


34
There must be a public apprising and taking up of arms for the specified
purpose or purposes mentioned in Article 134. The acts of the accused who is
not a member of the Hukbalahap organization of sending cigarettes and food
supplies to a Huk leader; the changing of dollars into pesos for a top level
communist; and the helping of Huks in opening accounts with the bank of which
he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7
SCRA 900).

Not necessary that there is killing, mere threat of removing Phil is sufficient

Rebellion may be committed even without a single shot being fired. No
encounter needed. Mere public uprising with arms enough.

Rebellion cannot be complexed with any other crime.

Common crimes perpetrated in furtherance of a political offense are divested of
their character as common offenses and assume the political complexion of the
main crime which they are mere ingredients, and consequently, cannot be
punished separately from the principal offense, or complexed with the same.

ORTEGA OPINION:

Rebellion can now be complexed with common crimes. Not long ago, the
Supreme Court, in Enrile v. Salazar, 186 SCRA 217, reiterated and affirmed
the rule laid down in People v. Hernandez, 99 Phil 515, that rebellion may
not be complexed with common crimes which are committed in furtherance
thereof because they are absorbed in rebellion. In view of said reaffirmation,
some believe that it has been a settled doctrine that rebellion cannot be
complexed with common crimes, such as killing and destruction of property,
committed on the occasion and in furtherance thereof.

This thinking is no longer correct; there is no legal basis for such rule now.

The statement in People v. Hernandez that common crimes committed in
furtherance of rebellion are absorbed by the crime of rebellion, was dictated by
the provision of Article 135 of the Revised Penal Code prior to its amendment by
the Republic Act No. 6968 (An Act Punishing the Crime of Coup Detat), which
became effective on October 1990. Prior to its amendment by Republic Act No.
6968, Article 135 punished those who while holding any public office or
employment, take part therein by any of these acts: engaging in war against
the forces of Government; destroying property; committing serious violence;
exacting contributions, diverting funds for the lawful purpose for which they have
been appropriated.

Since a higher penalty is prescribed for the crime of rebellion when any of the
specified acts are committed in furtherance thereof, said acts are punished as
components of rebellion and, therefore, are not to be treated as distinct crimes.
The same acts constitute distinct crimes when committed on a different occasion
and not in furtherance of rebellion. In short, it was because Article 135 then
punished said acts as components of the crime of rebellion that precludes the
application of Article 48 of the Revised Penal Code thereto. In the eyes of the
law then, said acts constitute only one crime and that is rebellion. The
Hernandez doctrine was reaffirmed in Enrile v. Salazar because the text of Article
135 has remained the same as it was when the Supreme Court resolved the


35
same issue in the People v. Hernandez. So the Supreme Court invited attention
to this fact and thus stated:

There is a an apparent need to restructure the law on rebellion, either to raise
the penalty therefore or to clearly define and delimit the other offenses to be
considered absorbed thereby, so that it cannot be conveniently utilized as the
umbrella for every sort of illegal activity undertaken in its name. The court has
no power to effect such change, for it can only interpret the law as it stands at
any given time, and what is needed lies beyond interpretation. Hopefully,
Congress will perceive the need for promptly seizing the initiative in this matter,
which is purely within its province.

Obviously, Congress took notice of this pronouncement and, thus, in enacting
Republic Act No. 6968, it did not only provide for the crime of coup detat in the
Revised Penal Code but moreover, deleted from the provision of Article 135 that
portion referring to those

who, while holding any public office or employment takes part therein
[rebellion or insurrection], engaging in war against the forces of government,
destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been
appropriated

Hence, overt acts which used to be punished as components of the crime of
rebellion have been severed therefrom by Republic Act No. 6968. The legal
impediment to the application of Article 48 to rebellion has been removed. After
the amendment, common crimes involving killings, and/or destructions of
property, even though committed by rebels in furtherance of rebellion, shall
bring about complex crimes of rebellion with murder/homicide, or rebellion with
robbery, or rebellion with arson as the case may be.

To reiterate, before Article 135 was amended, a higher penalty is imposed when
the offender engages in war against the government. "War" connotes anything
which may be carried out in pursuance of war. This implies that all acts of war
or hostilities like serious violence and destruction of property committed on
occasion and in pursuance of rebellion are component crimes of rebellion which
is why Article 48 on complex crimes is inapplicable. In amending Article135, the
acts which used to be component crimes of rebellion, like serious acts of
violence, have been deleted. These are now distinct crimes. The legal obstacle
for the application of Article 48, therefore, has been removed. Ortega says
legislators want to punish these common crimes independently of rebellion.
Ortega cites no case overturning Enrile v. Salazar.

However, illegal possession of firearms in furtherance of rebellion is distinct
from the crime of rebellion.

The offense of illegal possession of firearm is a malum prohibitum, in which case,
good faith and absence of criminal intent are not valid defenses.

Furthermore, it is a continuing crime such along with the crime of conspiracy
or proposal to commit such
A private crime may be committed during rebellion. Examples: killing,
possessions of firearms, illegal association are absorbed. Rape, even if not in
furtherance of rebellion cannot be complexed


36

If killing, robbing were done for private purposes or for profit, without any
political motivation, the crime would be separately be punished and would
not be embraced by rebellion (People v. Fernando)

Person deemed leader of rebellion in case he is unknown:
Any person who in fact:
a. directed the others
b. spoke for them
c. signed receipts and other documents issued in their name
d. performed similar acts on behalf of the rebels

Distinctions between rebellion and sedition

(1) As to nature

In rebellion, there must be taking up or arms against the government.

In sedition, it is sufficient that the public uprising be tumultuous.

(2) As to purpose

In rebellion, the purpose is always political.

In sedition, the purpose may be political or social. Example: the
uprising of squatters against Forbes park residents. The purpose in sedition is to
go against established government, not to overthrow it.

Article 134-A
COUP D ETAT

ELEMENTS:
a. Swift attack

b. Accompanied by violence, intimidation, threat, strategy or stealth

c. Directed against:

1. duly constituted authorities

2. any military camp or installation

3. communication networks or public utilities

4. other facilities needed for the exercise and continued
possession of power

d. Singly or simultaneously carried out anywhere in the Philippines

d. Committed by any person or persons belonging to the
military or police or holding any public office or
employment; with or without civilian support or
participation


37

e. With or without civilian support or participation

f. Purpose of seizing or diminishing state power

The essence of the crime is a swift attack upon the facilities of the Philippine
government, military camps and installations, communication networks, public
utilities and facilities essential to the continued possession of governmental
powers. It may be committed singly or collectively and does not require a
multitude of people.

The objective may not be to overthrow the government but only to
destabilize or paralyze the government through the seizure of facilities and
utilities essential to the continued possession and exercise of governmental
powers. It requires as principal offender a member of the AFP or of the PNP
organization or a public officer with or without civilian support. Finally, it may
be carried out not only by force or violence but also through stealth, threat or
strategy.

How do you distinguish between coup detat and rebellion?

Rebellion is committed by any person whether a private individual or a public
officer whereas in coup detat, the offender is a member of the military or police
force or holding a public office or employment.

In rebellion, the object is to alienate the allegiance of a people in a territory,
whether wholly or partially, from the duly constituted government; in coup
detat, the object or purpose is to seize or diminish state power.

In both instances, the offenders intend to substitute themselves in place of those
who are in power.

Treason (114) Rebellion
(134)
Coup
detat
(134-A)
Sedition (139)
Nature
of
Crime
Crime against
National
Security
Crime against
Public Order
Crime
against
Public Order
Crime against
Public Order
Overt
Acts
levying war
against the
govt;
OR
adherence and
giving aid or
comfort to
enemies
Public uprising
AND
Taking up arms
against the
govt
See article. Rising publicly or
tumultuously
(caused by more
than 3 armed
men or provided
with means of
violence)
Purpos
e of
objectiv
e
Deliver the govt
to enemy during
war
See article. Seizing or
diminishing
state
power.
See enumeration
in article.

Article 135


38
PENALTIES

Who are liable?
a. Any person who:
1. Promotes
2. Maintains
3. heads a rebellion or insurrection

b. Any person who, while holding any public office or employment, takes
part therein
1. engaging in war against the forces of the govt

2. destroying property or committing serious violence

3. exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated

c. Any person merely participating or executing the command of other in a
rebellion

When conspiracy is present in the commission of the crime, the act of one is the
act of all. In committing rebellion and coup detat, even if conspiracy as a means
to commit the crime is established, the principal of criminal liability under Article
17 of the Revised Penal Code is not followed.
In Government Service Not in Government Service
Anyone who leads, directs, commands
others to undertake a coup.
Anyone who participates or in an manner,
supports, finances, abets, aids in a coup.

Serious violence is that inflicted upon civilians, which may result in homicide.
It is not limited to hostilities against the armed force.

Diverting public funds is malversation absorbed in rebellion

NOTES:
a. Public officer must take active part because mere silence or omission not
punishable in rebellion

b. It is not a defense in rebellion that the accused never took the oath of
allegiance to, or that they never recognized the government

c. Rebellion cannot be complexed with murder and other common crimes
committed in pursuance of the movement to overthrow the government

Subversion, just like the crimes of rebellion, conspiracy or proposal to commit
the crimes of rebellion or subversion and crimes or offenses committed in
furtherance thereof constitute direct assaults against the State and are in the
nature of continuing crimes ( Umil vs. Ramos).

d. Killing, robbing etc for private persons or for profit, without any political
motivation, would be separately punished and would not be absorbed in
the rebellion.

Article 136


39
CONSPIRACY TO COMMIT COUP D ETAT, REBELLION OR
INSURRECTION

ELEMENTS:
a. 2 more persons come to an agreement to rise publicly and take
arms against the government

b. For any of the purposes of rebellion

c. They decide to commit it

PROPOSAL TO COMMIT COUP D ETAT, REBELLION OR INSURRECTION
(136)

ELEMENTS:

a. A person who has decided to rise publicly and take arms the
government

b. For any of the purposes of rebellion

c. Proposes its execution to some other person/s

Organizing a group of soldiers, soliciting membership in, and soliciting funds
for the organization show conspiracy to overthrow the govt

The mere fact of giving and rendering speeches favoring Communism would
not make the accused guilty of conspiracy if theres no evidence that the
hearers then and there agreed to rise up in arms against the govt

Conspiracy must be immediately prior to rebellion

If it is during the rebellion, then it is already taking part in it.

Article 137
DISLOYALTY OF PUBLIC OFFICERS AND EMPLOYEES

ACTS PUNISHED:
a. Failing to resist rebellion by all the means in their power

b. Continuing to discharge the duties of their offices under the
control of rebels

c. Accepting appointment to office under rebels

Presupposes existence of rebellion

Must not be in conspiracy with rebels or coup plotters

If there are means to prevent the rebellion but did not resist it, then theres
disloyalty. If there are no means, no fault


40
If position is accepted in order to protect the people, not covered by this

The collaborator must not have tried to impose the wishes of the rebels on
the people.

Disloyalty as a crime is not limited to rebellion alone but should now include the
crime of coup detat. Rebellion is essentially a crime committed by private
individuals while coup detat is a crime that should be classified as a crime
committed by public officers like malversation, bribery, dereliction of duty and
violations of the anti-Graft and Corrupt Practices Act.

If the public officer or employee, aside from being disloyal, does or commits acts
constituting the crime of rebellion or coup detat, he will no longer be charged for
the simple crime of disloyalty but he shall be proceeded against for the grave
offense of rebellion or coup detat.

Article 138
INCITING TO REBELLION OR INSURRECTION

ELEMENTS:
a. That the offender does not take arms or is not in open hostility
against the government

b. That he incites others to the execution of any of the acts of
rebellion

c. That the inciting is done by means of speeches, proclamations,
writings, emblems, banners or other representations tending to
the same end

Intentionally calculated to seduce others to rebellion

There must be uprising to take up arms and rise publicly for the purposes
indicated in Art 134

One who promotes, maintains or heads a rebellion and who act at the same time
incites or influences others to join him in his war efforts against the duly
constituted government cannot be held criminally liable for the crime of inciting
to rebellion because, as the principal to the crime of rebellion, the act of inciting
to commit a rebellion is inherent to the graver crime of rebellion.

Proposal to Commit Rebellion
(136)
Inciting to Rebellion (138)
The person who proposes has decided
to commit rebellion.
Not required that the offender has
decided to commit rebellion.
The person who proposes the
execution of the crime uses secret
means.
The inciting is done publicly.

Article 139
SEDITION


41
ELEMENTS:
a. That the offenders rise

1. Publicly (if no public uprising = tumult and other disturbance of
public order)

2. Tumultuously (vis--vis rebellion where there must be a taking of
arms)

b. That they employ force, intimidation, or other means outside of
legal methods

c. That the offenders employ any of those means to attain any of
the following objects:

1. to prevent the promulgation or execution of any law or the
holding of any popular election

2. to prevent the national government, or any provincial or
municipal government, or any public thereof from freely
exercising its or his functions, or prevent the execution of any
administrative order

3. to inflict any act or hate or revenge upon the person or
property of any public officer or employee

4. to commit for any political or social end, any act of hate or
revenge against private persons or any social class (hence,
even private persons may be offended parties)

5. to despoil, for any political or social end, any person,
municipality or province, or the national government of all its
property or any part thereof

Sedition: raising of commotion or disturbances in the State. Its ultimate
object is a violation of the public peace or at least such measures that
evidently engenders it.

The crime of sedition is committed by rising publicly and tumultuously. The
two elements must concur.

The crime of sedition does not contemplate the taking up of arms against the
government because the purpose of this crime is not the overthrow of the
government. Notice from the purpose of the crime of sedition that the
offenders rise publicly and create commotion and disturbance by way of
protest to express their dissent and obedience to the government or to the
authorities concerned. This is like the so-called civil disobedience except that
the means employed, which is violence, is illegal.

Difference from rebellion object or purpose of the uprising.

For sedition sufficient that uprising is tumultuous. In rebellion there must
be taking up of arms against the government.


42
Sedition purpose may be either political or social. In rebellion always
political

Tumultuous is a situation wherein the disturbance or confusion is caused by
at least four persons. There is no requirement that the offenders should be
armed.
Preventing public officers from freely exercising their functions

In sedition offender may be a private or public person (Ex. Soldier)

Public uprising and the object of sedition must concur

Q: Are common crimes absorbed in sedition?

In P v. Umali, SC held that NO. Crimes committed in that case were independent
of each other.

Preventing election through legal means NOT sedition

But when sugar farmers demonstrated and destroyed the properties of sugar
barons sedition

Persons liable for sedition:
a. leader of the sedition, and

b. other persons participating in the sedition

The objective of the law in criminalizing sedition is to put a limit to the freedom
of expression or the right of the people to assemble and petition the government
for redress of grievance.

The demonstrations conducted or held by the citizenry to protest certain
policies of the government is not a crime. But when the protest in manifested
in the form of rallies where the participants, in order to attain their objective
of overcoming the will of the government, resort to force or violence, the
mantle of protection guaranteed under the Constitution to express their
dissent peacefully, shall cease to exist, as in the meantime, the participants
have encroached or stayed in the domain or realm of criminal law.

Article 141.
Conspiracy to Commit Sedition

In this crime, there must be an agreement and a decision to rise publicly and
tumultuously to attain any of the objects of sedition.

There is no proposal to commit sedition.

The conspiracy must be to prevent the promulgation or execution of any law or
the holding of any popular election. It may also be a conspiracy to prevent
national and local public officials from freely exercising their duties and functions,
or to prevent the execution of an administrative order.

Article 142


43
INCITING TO SEDITION

ELEMENTS:
a. That the offender does not take a direct part in the crime of
sedition

b. That he incites others to the accomplishment of any of the acts
which constitute sedition (134)

c. That the inciting is done by means of speeches, proclamations,
writing, emblems, cartoons, banners, or other representations
tending to the same end (purpose: cause commotion not exactly
against the government; actual disturbance not necessary)
Different acts of inciting to sedition:
a. Inciting others to the accomplishment of any of the acts which constitute
sedition by means of speeches, proclamations, writings, emblems etc.

b. Uttering seditious words or speeches which tend to disturb the public
peace or writing, publishing, or circulating scurrilous [vulgar, mean,
libelous] libels against the government or any of the duly constituted
authorities thereof, which tend to disturb the public peace

c. Knowingly concealing such evil practices

When punishable:
a. when they tend to disturb or obstruct any lawful officer in executing the
functions of his office; or

b. when they tend to instigate others to cabal and meet together for
unlawful purposes; or

c. when they suggest or incite rebellious conspiracies or riots; or

d. when they lead or tend to stir up the people against the lawful authorities
or to disturb the peace of the community, the safety and order of the
government

Only non-participant in sedition may be liable.

Inciting to sedition is an element of sedition. It cannot be treated as a separate
offense against one who is a part of a group that rose up publicly and
tumultuously and fought the forces of government.

Considering that the objective of sedition is to express protest against the
government and in the process creating hate against public officers, any act that
will generate hatred against the government or a public officer concerned or a
social class may amount to Inciting to sedition. Article 142 is, therefore, quite
broad.

The mere meeting for the purpose of discussing hatred against the government
is inciting to sedition. Lambasting government officials to discredit the
government is Inciting to sedition. But if the objective of such preparatory
actions is the overthrow of the government, the crime is inciting to rebellion.


44

CRIMES AGAINST POPULAR REPRESENTATION

Article 143
ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND
SIMILAR BODIES

ELEMENTS:
a. That there be a projected or actual meeting of Congress or any of
its committees or subcommittees, constitutional commissions or
committees or division thereof, or of any provincial board or city
or municipal council or board

b. That the offender who may be any persons prevents such
meeting by force or fraud

The crime is against popular representation because it is directed against officers
whose primary function is to meet and enact laws. When these legislative bodies
are prevented from meeting and performing their duties, the system of
government is disturbed. The three branches of government must continue to
exist and perform their duties.

Chief of Police and mayor who prevented the meeting of the municipal
council are liable under Art 143, when the defect of the meeting is not
manifest and requires an investigation before its existence can be
determined.

Article 144
DISTURBANCE OF PROCEEDINGS

ELEMENTS:
a. That there be a meeting of Congress or any of its committees,
constitutional commissions or committees or divisions thereof, or
of any provincial board or city or municipal council or board

b. That the offender does any of the following acts

1. He disturbs any of such meetings

2. He behaves while in the presence of any such bodies in such a
manner as to interrupt its proceedings or to impair the respect
due it

The disturbance can be in the form of utterances, speeches or any form of
expressing dissent which is not done peacefully but implemented in such a way
that it substantially interrupts the meeting of the assembly or adversely affects
the respect due to the assembly of its members.

Complaint must be filed by member of the Legislative body. Accused may
also be punished for contempt.

Article 145


45
VIOLATION OF PARLIAMENTARY IMMUNITY

Acts punishable:
a. By using force, intimidation, threats, or frauds to prevent any
member of Congress from

1. attending the meeting of the assembly or any of its
committees, constitutional commissions or committees or
divisions thereof, or from

2. expressing his opinions or

3. casting his vote

b. By arresting or searching any member thereof while Congress is
in a regular or special session, except in case such member has
committed a crime punishable under the code by a penalty higher
than prision mayor ( 6 years up )

Elements:
1. That the offender is a public officer or employee

2. That he arrests or searches any member of Congress

3. That Congress, at the time of arrest or search, is in a regular
or special session

4. That the member searched has not committed a crime
punishable under the code by a penalty higher than prision
mayor (1987 constitution: privilege from arrest while congress in
session in all offenses punishable by not more than 6 years
imprisonment).

Under Section 11, Article VI of the Constitution, a public officer who arrests a
member of Congress who has committed a crime punishable by prision mayor
(six years and one day, to 12 years) is not liable Article 145.

According to Reyes, to be consistent with the Constitution, the phrase "by a
penalty higher than prision mayor" in Article 145 should be amended to read:
"by the penalty of prision mayor or higher."

The offender is any person and the offended party who is a member of
Congress, has not committed any crime to justify the use of force, threat,
intimidation or fraud to prevent him from attending the meeting of Congress.

ILLEGAL ASSEMBLIES AND ASSOCIATIONS

Article 146
ILLEGAL ASSEMBLIES

Two (2) Types of illegal assemblies:

a. Meeting of the first form


46

1. Meeting, gathering or group of persons whether in a fixed place or
moving

2. purpose : to commit any of crimes punishable under the code

3. meeting attended by armed persons

b. Meeting of the second form

1. Meeting, gathering or group of persons whether in a fixed place or
moving

2. Audience whether armed or not, is incited to the commission of the
crime of treason, rebellion or insurrection, sedition or direct assault.

Not all the persons present at the meeting of the first form of illegal assembly
must be armed

Persons liable for illegal assembly
a. the organizers or leaders of the meeting

b. persons merely present at the meeting (except when presence is out of
curiosity not liable)

Responsibility of persons merely present at the meeting

a. if they are not armed, penalty is arresto mayor

b. if they carry arms, like bolos or knives, or licensed firearms, penalty is
prision correccional

Presumptions if person present at the meeting carries an unlicensed
firearm:

a. purpose of the meeting is to commit acts punishable under the RPC

b. considered as leader or organizer of the meeting

Those who incite the audience, by means of speeches, printed matters, and
other representation, to commit treason, rebellion or insurrection, sedition or
assault a person in authority, shall be deemed leaders or organizers of said
meeting.

The gravamen of the offense is mere assembly of or gathering of people for
illegal purpose punishable by the Revised Penal Code. Without gathering,
there is no illegal assembly. If unlawful purpose is a crime under a special
law, there is no illegal assembly. For example, the gathering of drug pushers
to facilitate drug trafficking is not illegal assembly because the purpose is not
violative of the Revised Penal Code but of The Dangerous Drugs Act of 1972,
as amended, which is a special law.

Two forms of illegal assembly


47
(1) No attendance of armed men, but persons in the meeting are incited to
commit treason, rebellion or insurrection, sedition or assault upon a
person in authority. When the illegal purpose of the gathering is to incite
people to commit the crimes mentioned above, the presence of armed
men is unnecessary. The mere gathering for the purpose is sufficient to
bring about the crime already.

(2) Armed men attending the gathering If the illegal purpose is other than
those mentioned above, the presence of armed men during the gathering
brings about the crime of illegal assembly.

Example: Persons conspiring to rob a bank were arrested. Some were
with firearms. Liable for illegal assembly, not for conspiracy, but for
gathering with armed men.

Distinction between illegal assembly and illegal association

In illegal assembly, the basis of liability is the gathering for an illegal purpose
which constitutes a crime under the Revised Penal Code.

In illegal association, the basis is the formation of or organization of an
association to engage in an unlawful purpose which is not limited to a violation
of the Revised Penal Code. It includes a violation of a special law or those
against public morals. Meaning of public morals: inimical to public welfare; it
has nothing to do with decency., not acts of obscenity.

Article 147
ILLEGAL ASSOCIATIONS

ELEMENTS:
a. Organized totally or partially for the purpose of committing any
of the crimes in RPC
Or
b. For some purpose contrary to public morals

Persons liable:
a. founders, directors and president of the association
b. mere members of the association

Illegal Assembly (146) Illegal Association (147)
Must be an actual meeting of armed
persons to commit any of the crimes
punishable under the RPC, or of
individuals who, although not armed,
are incited to the commission of
treason, rebellion, sedition or assault
upon a person in authority of his agent.
No need for such
It is the meeting and the attendance at
such that are punished
Act of forming or organizing and
membership in the association
Persons liable: leaders and those
present
Founders, directors, president and
members


48
Public morals refers to crimes punished under Title Six of the Revised Penal
Code, namely, gambling, grave scandal, prostitution and vagrancy.

ASSAULT, RESISTANCE AND DISOBEDIENCE

Article 148
DIRECT ASSAULT

ELEMENTS OF THE 1
ST
FORM OF DIRECT ASSAULT
a. That the offender employs force or intimidation.

b. That the aim of the offender is to attain any of the purposes of
the crime of rebellion or any of the objects of the crimes of
sedition. (victim need not be person in authority)

c. That there is no public uprising.

Example of the first form of direct assault:

Three men broke into a National Food Authority warehouse and lamented
sufferings of the people. They called on people to help themselves to all the
rice. They did not even help themselves to a single grain.

The crime committed was direct assault. There was no robbery for there was no
intent to gain. The crime is direct assault by committing acts of sedition under
Article 139 (5), that is, spoiling of the property, for any political or social end, of
any person municipality or province or the national government of all or any its
property, but there is no public uprising.

ELEMENTS OF THE 2
ND
FORM OF DIRECT ASSAULT:
a. That the offender (a) makes an attack, (b) employs force, (c)
makes a serious intimidation, or (d) makes a serious resistance.

b. That the person assaulted is a person in authority or his agent.

c. That at the time of the assault the person in authority or his
agent (a) is engaged in the actual performance of official duties
(motive is not essential), or that he is assaulted (b) by reason of the
past performance of official duties (motive is essential).

d. That the offender knows that the one he is assaulting is a person
in authority or his agent in the exercise of his duties (with intention
to offend, injure or assault).

e. That there is no public uprising.

Crime of direct assault can only be committed by means of dolo. It cannot be
committed by culpa.

Always complexed with the material consequence of the act (e.g. direct
assault with murder) except if resulting in a light felony, in which case, the
consequence is absorbed


49

The crime is not based on the material consequence of the unlawful act. The
crime of direct assault punishes the spirit of lawlessness and the contempt or
hatred for the authority or the rule of law.

To be specific, if a judge was killed while he was holding a session, the killing is
not the direct assault, but murder. There could be direct assault if the offender
killed the judge simply because the judge is so strict in the fulfillment of his duty.
It is the spirit of hate which is the essence of direct assault.

So, where the spirit is present, it is always complexed with the material
consequence of the unlawful act. If the unlawful act was murder or homicide
committed under circumstance of lawlessness or contempt of authority, the
crime would be direct assault with murder or homicide, as the case may be. In
the example of the judge who was killed, the crime is direct assault with murder
or homicide.

The only time when it is not complexed is when material consequence is a light
felony, that is, slight physical injury. Direct assault absorbs the lighter felony;
the crime of direct assault can not be separated from the material result of the
act. So, if an offender who is charged with direct assault and in another court
for the slight physical Injury which is part of the act, acquittal or conviction in
one is a bar to the prosecution in the other.

Hitting the policeman on the chest with fist is not direct assault because if
done against an agent of a person in authority, the force employed must be
of serious character

The force employed need not be serious when the offended party is a person
in authority (ex. Laying of hands)

The intimidation or resistance must be serious whether the offended party is
an agent only or a person in authority (ex. Pointing a gun)

Force Employed Intimidation/Resistance
Person in
Authority
Need not be serious Serious
Agent Must be of serious
character
Serious

Person in authority: any person directly vested with jurisdiction (power or
authority to govern and execute the laws) whether as an individual or as a
member of some court or governmental corporation, board or commission

A barangay captain is a person in authority, so is a Division Superintendent of
schools, President of Sanitary Division and a teacher

In applying the provisions of Articles 148 and 151, 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
duties or on the occasion of such performance, shall be deemed a person in
authority.


50
Agent: is one 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. (Example.
Barrio councilman and any person who comes to the aid of the person in
authority, policeman, municipal treasurer, postmaster, sheriff, agents of the
BIR, Malacaang confidential agent)

Even when the person in authority or the agent agrees to fight, still direct
assault.

When the person in authority or the agent provoked/attacked first, innocent
party is entitled to defend himself and cannot be held liable for assault or
resistance nor for physical injuries, because he acts in legitimate self-defense

The offended party in assault must not be the aggressor. If there is unlawful
aggression employed by the public officer, any form of resistance which may be
in the nature of force against him will be considered as an act of legitimate
defense. (People vs. Hernandez, 59 Phil. 343)

There can be no assault upon or disobedience to one authority by another
when they both contend that they were in the exercise of their respective
duties.

The offender and the offended party are both public officers. The Supreme Court
said that assault may still be committed, as in fact the offender is even subjected
to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193).

When assault is made by reason of the performance of his duty there is no
need for actual performance of his official duty when attacked

In direct assault of the first form, the stature of the offended person is
immaterial. The crime is manifested by the spirit of lawlessness.

In the second form, you have to distinguish a situation where a person in
authority or his agent was attacked while performing official functions, from a
situation when he is not performing such functions.
If attack was done during the exercise of official functions, the crime is
always direct assault. It is enough that the offender knew that the person in
authority was performing an official function whatever may be the reason for
the attack, although what may have happened was a purely private affair.

On the other hand, if the person in authority or the agent was killed when no
longer performing official functions, the crime may simply be the material
consequence of he unlawful act: murder or homicide. For the crime to be direct
assault, the attack must be by reason of his official function in the past. Motive
becomes important in this respect. Example, if a judge was killed while resisting
the taking of his watch, there is no direct assault.

In the second form of direct assault, it is also important that the offended knew
that the person he is attacking is a person in authority or an agent of a person in
authority, performing his official functions. No knowledge, no lawlessness or
contempt.


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For example, if two persons were quarreling and a policeman in civilian clothes
comes and stops them, but one of the protagonists stabs the policeman, there
would be no direct assault unless the offender knew that he is a policeman.

In this respect it is enough that the offender should know that the offended
party was exercising some form of authority. It is not necessary that the
offender knows what is meant by person in authority or an agent of one because
ignorantia legis non excusat.

Circumstances qualifying the offense (Qualified Assault):
a. when the assault is committed with a weapon

b. when the offender is a public officer or employee

c. when the offender lays hand upon a person in authority

Complex crime of direct assault with homicide or murder, or with serious
physical injuries.

If the crime of direct assault is committed with the use of force and it resulted in
the infliction of slight physical injuries, the latter shall not be considered as a
separate offense. It shall be absorbed by the greater crime of direct assault.
(People vs. Acierto, 57 Phil. 614)

Direct assault cannot be committed during rebellion.

May direct assault be committed upon a private individual? Yes. When a
private person comes to the aid of a person in authority, and he is likewise
assaulted. Under Republic Act No. 1978,
a private person who comes to the aid of a person in authority is by fiction of
law deemed or is considered an agent of a person in authority.

Article 149
INDIRECT ASSAULT

ELEMENTS:
a. That a person in authority or his agent is the victim of any of the
forms of direct assault defined in ART. 148.

b. That a person comes to the aid of such authority or his agent.

c. That the offender makes use of force or intimidation upon such
person coming to the aid of the authority or his agent.

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

To be indirect assault, the person who should be aided is the agent
(not the person in authority because it is already direct assault, the person
coming to the aid of the person in authority being considered as an agent
and an attack on the latter is already direct assault). Example. Aiding a
policeman under attack.


52
The victim in indirect assault should be a private person who comes in aid of an
agent of a person in authority. The assault is upon a person who comes in aid of
the agent of a person in authority. The victim cannot be the person in authority
or his agent.

Take note that under Article 152, as amended, when any person comes in aid of
a person in authority, said person at that moment is no longer a civilian he is
constituted as an agent of the person in authority. If such person were the one
attacked, the crime would be direct assault

Article 150
DISOBEDIENCE TO SUMMONS

Acts punishable:
a. refusing without legal excuse to obey summons

b. refusing to be sworn or placed under affirmation

c. refusing to answer any legal inquiry to produce books, records
etc.

d. restraining another from attending as witness in such body

e. inducing disobedience to a summons or refusal to be sworn

The act punished is refusal, without legal excuse, to obey summons issued by
the House of Representatives or the Senate. If a Constitutional Commission is
created, it shall enjoy the same privilege.

The exercise by the legislature of its contempt power is a matter of self-
preservation, independent of the judicial branch. The contempt power of the
legislature is inherent and sui generis.

The power to punish is not extended to the local executive bodies. The reason
given is that local legislative bodies are but a creation of law and therefore, for
them to exercise the power of contempt, there must be an express grant of the
same.

Article 151
RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE
AGENT OF SUCH PERSON (par. 1)

ELEMENTS:
a. That a person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the
offender.

b. That the offender resists or seriously disobeys such person in
authority or his agent.

c. That the act of the offender is not included in the provisions of
arts. 148, 149 and 150.


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SIMPLE DISOBEDIENCE (par. 2)

ELEMENTS:
a. That an agent of a person in authority is engaged in the
performance of official duty gives a lawful order to the offender.

b. That the offender disobeys such agent of a person in authority.

c. That such disobedience is not of a serious nature.

US vs. Ramayrat, 22 Phil. 183
The Supreme Court held that: the
violation does not refer to resistance or disobedience to the legal provisions
of the law, nor to judicial decisions defining or declaring the rights and
obligations of the parties for the same give reliefs only in the form of civil
actions. Rather, the disobedience or resistance is to the orders directly issued
by the authorities in the exercise of their official duties.

Direct Assault (148) Resistant and Disobedience to a
Person in Authority or Agents of
such Person (151)
PIA or his agent must be engaged in
the performance of official duties or
that he is assaulted
PIA or his agent must be in the actual
performance of his duties.
Direct assault is committed in 4 ways
by attacking, employing force, and
seriously resisting a PIA or his agent.
Committed by resisting or seriously
disobeying a PIA or his agent.
Use of force against an agent of PIA
must be serious and deliberate.
Use of force against an agent of a PIA is
not so serious; no manifest intention to
defy the law and the officers enforcing
it.

In both resistance against an agent of a person in authority and direct assault by
resisting an agent of a person in authority, there is force employed, but the use
of force in resistance is not so serious, as there is no manifest intention to defy
the law and the officers enforcing it.

The attack or employment of force which gives rise to the crime of direct assault
must be serious and deliberate; otherwise, even a case of simple resistance to an
arrest, which always requires the use of force of some kind, would constitute
direct assault and the lesser offense of resistance or disobedience in Article 151
would entirely disappear.

But when the one resisted is a person in authority, the use of any kind or degree
of force will give rise to direct assault.

If no force is employed by the offender in resisting or disobeying a person in
authority, the crime committed is resistance or serious disobedience under the
first paragraph of Article 151.

Article 152


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PERSONS IN AUTHORITY/AGENTS OF PERSONS IN AUTHORITY:

Persons in Authority any person directly vested with jurisdiction, whether
as an individual or as a member of some court or governmental corporation,
board or commission.

Examples of Persons in Authority :
a. Barangay captain
b. Barangay chairman
c. Municipal mayor
d. Provincial fiscal
e. Justice of the peace
f. Municipal councilor
g. Teachers
h. Professors
i. Persons charged with the supervision of public or duly recognized private
schools, colleges and universities
j. Lawyers in the actual performance of their professional duties or on the
occasion of such performance

Agent of Person in Authority any 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.

Examples of agents of PIA :
a. Barrio councilman
b. Barrio policeman
c. Barangay leader
d. Any person who comes to the aid of persons in authority

Section 388 of the Local Govt Code provides that for purposes of the RPC,
the punong barangay, sangguniang barangay members and members of the
lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdictions, while other barangay officials and members
who may be designated by law or ordinance and charged with the
maintenance of public order, protection and the security of life, property, or
the maintenance of a desirable and balanced environment, and any barangay
member who comes to the aid of persons in authority shall be deemed
AGENT of persons in authority.

When the offended party is a person in authority and while being assaulted, a
private individual comes to his rescue, such private individual, by operation of
law, mutates mutandis becomes an agent of a person in authority. Any
assault committed against such person is direct assault, and not indirect
assault. But if the person assaulted is an agent of a person in authority, and a
private individual comes to his rescue and is himself assaulted while giving
the assistance, as earlier discussed, the crime committed is indirect assault.

CRIMES AGAINST PUBLIC DISORDERS

Article 153
TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER


55

TYPES:
a. Causing any serious disturbance in a public place, office or
establishment

b. Interrupting or disturbing public performances, functions,
gatherings or peaceful meetings, if the act is not included in Art
131 and 132 (Public Officers interrupting peaceful meetings or religious
worship).

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

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

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

If the act of disturbing or interrupting a meeting or religious ceremony is NOT
committed by public officers, or if committed by public officers who are not
participants therein, this article applies. Art 131 and 132 punishes the same
acts if committed by public officers who are NOT participants in the meeting

The outcry is merely a public disorder if it is an unconscious outburst which,
although rebellious or seditious in nature, is not intentionally calculated to
induce others to commit rebellion or sedition, otherwise, its inciting to
rebellion or sedition.

This article should be distinguished from inciting to rebellion or sedition as
discussed under Article 138 and 142. In the former, the meeting is legal and
peaceful. It becomes unlawful only because of the outcry made, which tends
to incite rebellion or sedition in the meeting. In the latter case, the meeting is
unlawful from the beginning and the utterances made are deliberately
articulated to incite others to rise publicly and rebel against the government.
What makes it inciting to rebellion or sedition is the act of inciting the
audience to commit rebellion or sedition.

Tumultuous if caused by more than 3 persons who are armed or provided
with means of violence (circumstance qualifying the disturbance/interruption)
tumultuous in character

The essence is creating public disorder. This crime is brought about by creating
serious disturbances in public places, public buildings, and even in private places
where public functions or performances are being held.

For a crime to be under this article, it must not fall under Articles 131
(prohibition, interruption, and dissolution of peaceful meetings) and 132
(interruption of religious worship).

In the act of making outcry during speech tending to incite rebellion or sedition,
the situation must be distinguished from inciting to sedition or rebellion.
If the speaker, even before he delivered his speech, already had the criminal
intent to incite the listeners to rise to sedition, the crime would be inciting to


56
sedition. However, if the offender had no such criminal intent, but in the
course of his speech, tempers went high and so the speaker started inciting
the audience to rise in sedition against the government, the crime is
disturbance of the public order.

The disturbance of the pubic order is tumultuous and the penalty is increased if it
is brought about by armed men. The term armed does not refer to firearms
but includes even big stones capable of causing grave injury.

It is also disturbance of the public order if a convict legally put to death is
buried with pomp. He should not be made out as a martyr; it might incite
others to hatred.

The crime of disturbance of public order may be committed in a public or
private place. If committed in a private place, the law is violated only where
the disturbance is made while a public function or performance is going on.
Without a public gathering in a private place, the crime cannot be committed.

Article 154
UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL
UTTERANCES

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

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

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

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

The purpose of the law is to punish the spreading of false information which
tends to cause panic, confusion, distrust and divide people in their loyalty to the
duly constituted authorities.

Actual public disorder or actual damage to the credit of the State is not
necessary.

Republic Act No. 248 prohibits the reprinting, reproduction or republication of
government publications and official documents without previous authority
The article also punishes any person who knowingly publishes official acts or
documents which are not officially promulgated.


57

Article 155
ALARMS AND SCANDALS

TYPES:
a. Discharging any firearm, rocket, firecracker, or other explosive
within any town or public place, calculated to cause alarm or
danger

b. Instigating or taking active part in any charivari or other
disorderly meeting offensive to another or prejudicial to public
tranquility

c. Disturbing the public peace while wandering about at night or
while engaged in any other nocturnal amusement

d. Causing any disturbance or scandal in public places while
intoxicated or otherwise, provided the act is not covered by Art
153 (tumult).

Understand the nature of the crime of alarms and scandals as one that
disturbs public tranquility or public peace. If the annoyance is intended for a
particular person, the crime is unjust vexation.

Charivari mock serenade or discordant noises made with kettles, tin horns
etc, designed to deride, insult or annoy

When a person discharges a firearm in public, the act may constitute any
of the possible crimes under the Revised Penal Code:

(1) Alarms and scandals if the firearm when discharged was not directed to
any particular person;

(2) Illegal discharge of firearm under Article 254 if the firearm is directed or
pointed to a particular person when discharged but intent to kill is absent;

(3) Attempted homicide, murder, or parricide if the firearm when discharged
is directed against a person and intent to kill is present.

In this connection, understand that it is not necessary that the offended party be
wounded or hit. Mere discharge of firearm towards another with intent to kill
already amounts to attempted homicide or attempted murder or attempted
parricide. It can not be frustrated because the offended party is not mortally
wounded.

In Araneta v. Court of Appeals, it was held that if a person is shot at and is
wounded, the crime is automatically attempted homicide. Intent to kill is
inherent in the use of the deadly weapon.

(4) Grave Threats If the weapon is not discharged but merely
pointed to another

(5) Other Light Threats If drawn in a quarrel but not in self defense


58

What governs is the result, not the intent

CRIME Nature of Crime Who are Liable
Tumults and other
Disturbances (153)
Crime against Public Order Private persons,
outsider
Alarms and Scandals
(155)
Crime against Public Order Private persons,
outsider

Article 156
DELIVERING PRISONERS FROM JAILS

ELEMENTS :
a. That there is a person confined in a jail or penal establishment.

b. That the offender removes therefor such person, or helps the
escape of such person (if the escapee is serving final judgement, he is
guilty of evasion of sentence).

c. Offender is a private individual

Prisoner may be detention prisoner or one sentenced by virtue of a final
judgment

Even if the prisoner is in the hospital or asylum or any place for detention of
prisoner, as long as he is classified as a prisoner, that is, a formal complaint or
information has been filed in court, and he has been officially categorized as a
prisoner, this article applies, as such place is considered extension of the penal
institution.

A policeman assigned to the city jail as guard who while off-duty released a
prisoner is liable here

Even if the prisoner returned to the jail after several hours, the one who
removed him from jail is liable.

It may be committed through negligence

Circumstances qualifying the offense is committed by means of
violence, intimidation or bribery.

Mitigating circumstance if it takes place outside the penal establishment
by taking the guards by surprise

correlate the crime of delivering person from jail with infidelity in the custody of
prisoners punished under Articles 223, 224 and 225 of the Revised Penal Code.
In both acts, the offender may be a public officer or a private citizen.
Do not think that infidelity in the custody of prisoners can only be committed
by a public officer and delivering persons from jail can only be committed by
private person. Both crimes may be committed by public officers as well as
private persons.


59
In both crimes, the person involved may be a convict or a mere detention
prisoner.

The only point of distinction between the two crimes lies on whether the
offender is the custodian of the prisoner or not at the time the prisoner was
made to escape.
If the offender is the custodian at that time, the crime is infidelity in the
custody of prisoners. But if the offender is not the custodian of the prisoner
at that time, even though he is a public officer, the crime he committed is
delivering prisoners from jail.

Liability of the prisoner or detainee who escaped When these crimes are
committed, whether infidelity in the custody of prisoners or delivering prisoners
from jail, the prisoner so escaping may also have criminal liability and this is so if
the prisoner is a convict serving sentence by final judgment. The crime of
evasion of service of sentence is committed by the prisoner who escapes if such
prisoner is a convict serving sentence by final judgment.

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

If three persons are involved a stranger, the custodian and the prisoner three
crimes are committed:

(1) Infidelity in the custody of prisoners;

(2) Delivery of the prisoner from jail; and

(3) Evasion of service of sentence.

It is possible that several crimes may be committed in one set of facts.
For instance, assuming that Pedro, the jail warden, agreed with Juan to allow
Maria to escape by not locking the gate of the city jail. Provided that Juan comes
across with P5,000.00 pesos as bribe money. The arrangement was not known
to Maria but when she noticed the unlocked gate of the city jail she took
advantage of the situation and escaped. From the facts given, there is no
question that Pedro, as the jail warden, is liable for the crime of infidelity in the
custody of the prisoner. He will also be able for the crime of bribery. Juan will be
liable for the crime of delivering a prisoner from jail and for corruption of public
official under Art. 212. If Maria is a sentenced prisoner, she will be liable for
evasion of service of sentence under Article 157. if she is a detention prisoner,
she commits no crime.

EVASION OF SENTENCE OR SERVICE

Evasion of service of sentence has three forms:

(1) By simply leaving or escaping from the penal establishment under Article
157;


60
(2) Failure to return within 48 hours after having left the penal establishment
because of a calamity, conflagration or mutiny and such calamity,
conflagration or mutiny has been announced as already passed under
Article 158;

(3) Violating the condition of conditional pardon under Article 159.

Article 157
EVASION OF SERVICE OF SENTENCE

ELEMENTS :
a. That the offender is a convict by final judgment.

b. That he is serving his sentence which consists in deprivation
of liberty (destierro included)

c. That he evades the service of his sentence by escaping during
the term if his sentence. (fact of return immaterial).

By the very nature of the crime, it cannot be committed when the prisoner
involved is merely a detention prisoner. But it applies to persons convicted by
final judgment with a penalty of destierro.

A detention prisoner even if he escapes from confinement has no criminal
liability. Thus, escaping from his prison cell when his case is still on appeal does
not make said prisoner liable for Evasion of Service of Sentence.

In leaving or escaping from jail or prison, that the prisoner immediately
returned is immaterial. It is enough that he left the penal establishment by
escaping therefrom. His voluntary return may only be mitigating, being
analogous to voluntary surrender. But the same will not absolve his criminal
liability.

A continuing offense.

Offenders not minor delinquents nor detention prisoners

If escaped within the 15 day appeal period no evasion

No applicable to deportation as the sentence

The crime of evasion of service of sentence may be committed even if the
sentence is destierro, and this is committed if the convict sentenced to
destierro will enter the prohibited places or come within the prohibited radius
of 25 kilometers to such places as stated in the judgment.

If the sentence violated is destierro, the penalty upon the convict is to be served
by way of destierro also, not imprisonment. This is so because the penalty for
the evasion can not be more severe than the penalty evaded.

Circumstances qualifying the offense (done thru):
a. unlawful entry (by scaling)


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b. breaking doors, windows, gates, walls, roofs or floors

c. using picklocks, false keys, disguise, deceit, violence or intimidation

d. connivance with other convicts or employees of the penal institution

A, a foreigner, was found guilty of violation of the law, and was ordered by the
court to be deported. Later on, he returned to the Philippines in violation of the
sentence. Held: He is not guilty of Evasion of Service of Sentence as the law is
not applicable to offenses executed by deportation. (U.S. vs. Loo Hoe, 36 Phil.
867).

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

ELEMENTS :
a. That the offender is a convict by final judgement who is
confined in a penal institution.

b. That there is disorder, resulting from- 1. conflagration,
2. earthquake, or
3. explosion, or
4. similar catastrophe, or
5. mutiny , not
participated.

c. That the offender evades the service of his sentence by
leaving the penal institution where he is confined, on the
occasion of such disorder or during the mutiny.

d. That the offender fails to give himself up to the authorities
within 48 hours following the issuance of a proclamation by
the chief executive announcing the passing away of such
calamity.

The leaving from the penal establishment is not the basis of criminal liability.
It is the failure to return within 48 hours after the passing of the calamity,
conflagration or mutiny had been announced. Under Article 158, those who
return within 48 hours are given credit or deduction from the remaining
period of their sentence equivalent to 1/5 of the original term of the
sentence. But if the prisoner fails to return within said 48 hours, an added
penalty, also 1/5, shall be imposed but the 1/5 penalty is based on the
remaining period of the sentence, not on the original sentence. In no case
shall that penalty exceed six months.

Offender must escape to be entitled to allowance

Those who did not leave the penal establishment are not entitled to the 1/5
credit. Only those who left and returned within the 48-hour period.


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For such event to be considered as a calamity, the President must declared it
to be so. He must issue a proclamation to the effect that the calamity is over.
Even if the events herein mentioned may be considered as calamity, there is
a need for the Chief Executive to make such announcement. Absent such
declaration. Even if the prisoner will return to the penal institution where he
was confined, the same is of no moment as in the meantime he has
committed a violation of the law, not under the present article but for pure
evasion of service of sentence under Article 157.

Mutiny organized unlawful resistance to a superior officer, a sedition, a
revolt

The mutiny referred to in the second form of evasion of service of
sentence does not include riot. The mutiny referred to here involves
subordinate personnel rising against the supervisor within the penal
establishment. One who escapes during a riot will be subject to
Article 157, that is, simply leaving or escaping the penal
establishment.

Disarming the guards is not mutiny

Violation attributed to the accused is no longer referred to the court for judicial
inquiry or resolution. The law has provided sufficient guidelines for the jail
warden to follow.

This disquisition will not apply if the offender who escapes taking advantage of
the calamities enumerated herein is apprehended by the authorities after 48
hours from the declaration that the calamity is over. It is only extended to one
who returns but made inside the 48 hours delimited by the proclamation. At this
stage, the violation is not substantive but administrative in nature.

Article 159
VIOLATION OF CONDITIONAL PARDON

ELEMENTS:
a. That the offender was a convict.

b. That he was granted a conditional pardon by the chief
executive.

c. That he violated any of the conditions of such pardon.

Condition extends to special laws violation of illegal voting
The condition imposed upon the prisoner not to be guilty of another crime is not
limited to those punishable under the Revised Penal Code. It includes those
punished under Special Law. (People vs. Corral, 74 Phil. 357).

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

If the condition of the pardon is violated, the remedy against the accused may
be in the form of prosecution under Article 159. it may also be an administrative


63
action by referring the violation to the court of origin and praying for the
issuance of a warrant of arrest justified under Section 64 of the Revised
Administrative Code.

The administrative liability of the convict under the conditional pardon is
different and has nothing to do with his criminal liability for the evasion of
service of sentence in the event that the condition of the pardon has been
violated. Exception: where the violation of the condition of the pardon will
constitute evasion of service of sentence, even though committed beyond the
remaining period of the sentence. This is when the conditional pardon
expressly so provides or the language of the conditional pardon clearly shows
the intention to make the condition perpetual even beyond the unserved
portion of the sentence. In such case, the convict may be required to serve
the unserved portion of the sentence even though the violation has taken
place when the sentence has already lapsed.
Offender must have been found guilty of the subsequent offense before he
can be prosecuted under this Article. But if under Revised Admin Code, no
conviction necessary. President has power to arrest, reincarnate offender
without trial

Article 159 is a distinct felony. It is a substantive crime. For one to suffer the
consequence of its violation, the prisoner must be formally charged in court. He
will be entitled to a full blown hearing, in full enjoyment of his right to due
process. Only after a final judgment has been rendered against him may he
suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al.,
152 SCRA 292)

VIOLATION OF PARDON ORDINARY EVASION
Infringement of conditions/terms
of President
To evade the penalty given by the
courts disturbs the public order

Two penalties provided:
a. prision correccional in its minimum period if the penalty remitted does
not exceed 6 years

b. the unexpired portion of his original sentence if the penalty remitted is
higher than 6 years

COMMISSION OF ANOTHER CRIME

Article 160
COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY
IMPOSED FOR ANOTHER PREVIOUS OFFENSE-PENALTY: (quasi-
recidivism)

ELEMENTS
a. That the offender was already convicted by final judgement of
one offense.

b. That he committed a new felony before beginning to serve
such sentence or while serving the same.


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Quasi-recidivism : a person after having been convicted by final judgement
shall commit a new felony before beginning to serve such sentence, or while
serving the same.

Second crimes must belong to the RPC, not special laws. First crime may be
either from the RPC or special laws

Reiteracion: offender shall have served out his sentence for the prior
offense

A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual
Delinquent

If new felony is evasion of sentence offender is not a quasi-recidivist

Penalty: maximum period of the penalty for the new felony should be
imposed

Quasi-recidivism is a special aggravating circumstance which directs the court to
impose the maximum period of the penalty prescribed by law for the new felony.
The court will do away or will ignore mitigating and aggravating circumstances in
considering the penalty to be imposed. There will be no occasion for the court to
consider imposing the minimum, medium or maximum period of the penalty. The
mandate is absolute and is justified by the finding that the accused is suffering
from some degree of moral perversity if not total incorrigibility. (People vs.
Alicia, et al., 95 SCRA 227)

Quasi-recidivism is an aggravating circumstance which cannot be offset by any
mitigating circumstance. To be appreciated as a special aggravating
circumstance, it must be alleged in the information. (People vs. Bautista, 65
SCRA 460)

Quasi-Recidivism may be offset by a special privileged mitigating
circumstance (ex. Minority)
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest

1. Counterfeiting the great seal of the Government of the Philippines (Art.
161);

2. Using forged signature or counterfeiting seal or stamp (Art. 162);

3. Making and importing and uttering false coins (Art. 163);

4. Mutilation of coins, importation and uttering of mutilated coins (Art. 164);

5. Selling of false or mutilated coins, without connivance (Art. 165);

6. Forging treasury or bank notes or other documents payable to bearer,
importing and uttering of such false or forged notes and documents (Art.
166);


65
7. Counterfeiting, importing and uttering instruments not payable to bearer
(Art. 167);

8. Illegal possession and use of forged treasury or bank notes and other
instruments of credit (Art. 168);

9. Falsification of legislative documents (Art. 170);

10. Falsification by public officer, employee or notary (Art. 171);

11. Falsification by private individuals and use of falsified documents (Art.
172);

12. Falsification of wireless, cable, telegraph and telephone messages and use
of said falsified messages (Art. 173);

13. False medical certificates, false certificates of merit or service (Art. 174);

14. Using false certificates (Art. 175);

15. Manufacturing and possession of instruments or implements for
falsification (Art. 176);

16. Usurpation of authority or official functions (Art. 177);

17. Using fictitious name and concealing true name (Art. 178);

18. Illegal use of uniforms or insignia (Art. 179);

19. False testimony against a defendant (Art. 180);

20. False testimony favorable to the defendant (Art. 181);

21. False testimony in civil cases (Art. 182);

22. False testimony in other cases and perjury (Art. 183);

23. Offering false testimony in evidence (Art. 184);

24. Machinations in public auction (Art. 185);

25. Monopolies and combinations in restraint of trade (Art. 186);

26. Importation and disposition of falsely marked articles or merchandise
made of gold, silver, or other precious metals or their alloys (Art. 187);

27. Substituting and altering trade marks and trade names or service marks
(Art. 188);

28. Unfair competition and fraudulent registration of trade mark or trade
name, or service mark; fraudulent designation of origin, and false
description (Art. 189).


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The crimes in this title are in the nature of fraud or falsity to the public. The
essence of the crime under this title is that which defraud the public in general.
There is deceit perpetrated upon the public. This is the act that is being
punished under this title.

Article 161
COUNTERFEITING GREAT SEAL OF GOVERNMENT

TYPES:
a. Forging the great seal of the Government

b. Forging the signature of the President

c. Forging the stamp of the President

When the signature of the President is forged, it is not falsification but forging
of signature under this article

Signature must be forged, others signed it not the President.

Article 162
USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP

ELEMENTS:
a. That the great seal of the republic was counterfeited or the
signature or stamp of the chief executive was forged by
another person.

b. That the offender knew of the counterfeiting or forgery.

c. That he used the counterfeit seal or forged signature or
stamp.

Offender is NOT the forger/not the cause of the counterfeiting

Article 163
MAKING AND IMPORTING AND UTTERING FALSE COINS

ELEMENTS :
a. That there be false or counterfeited coins (need not be legal
tender).

b. That the offender either made, imported or uttered such coins.

c. That in case of uttering such false or counterfeited coins, he
connives with counterfeiters or importers.

Coin is counterfeit if it is forged, or if it is not an article of the
government as legal tender, regardless if it is of no value


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Kinds of coins the counterfeiting of which is punished

1. Silver coins of the Philippines or coins of the Central Bank of the
Philippines;

2. Coins of the minor coinage of the Philippines or of the Central Bank of the
Philippines;

3. Coin of the currency of a foreign country.

Counterfeiting imitation of legal or genuine coin (may contain more
silver, different design) such as to deceive an ordinary person in believing it
to be genuine

Utter to pass counterfeited coins, deliver or give away

Import to bring to port the same

Both Philippine and foreign state coins

Applies also to coins withdrawn from circulation

Essence of article: making of coins without authority

Acts punished

1. Mutilating coins of the legal currency, with the further requirements that
there be intent to damage or to defraud another;

2. Importing or uttering such mutilated coins, with the further requirement
that there must be connivances with the mutilator or importer in case of
uttering.

The first acts of falsification or falsity are

(1) Counterfeiting refers to money or currency;

(2) Forgery refers to instruments of credit and obligations and securities
issued by the Philippine government or any banking institution authorized
by the Philippine government to issue the same;

(3) Falsification can only be committed in respect of documents.

In so far as coins in circulation are concerned, there are two crimes that may be
committed:

(1) Counterfeiting coins -- This is the crime of remaking or manufacturing
without any authority to do so.

In the crime of counterfeiting, the law is not concerned with the fraud upon the
public such that even though the coin is no longer legal tender, the act of
imitating or manufacturing the coin of the government is penalized. In punishing


68
the crime of counterfeiting, the law wants to prevent people from trying their
ingenuity in their imitation of the manufacture of money.

(2) Mutilation of coins -- This refers to the deliberate act of diminishing the
proper metal contents of the coin either by scraping, scratching or filling
the edges of the coin and the offender gathers the metal dust that has
been scraped from the coin.

Requisites of mutilation under the Revised Penal Code

(1) Coin mutilated is of legal tender;

(2) Offender gains from the precious metal dust abstracted from the coin; and

(3) It has to be a coin.

There is no expertise involved here. In mutilation of coins under the Revised
Penal Code, the offender does nothing but to scrape, pile or cut the coin and
collect the dust and, thus, diminishing the intrinsic value of the coin.

Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not
legal tender anymore, no one will accept it, so nobody will be defrauded. But if
the coin is of legal tender, and the offender minimizes or decreases the precious
metal dust content of the coin, the crime of mutilation is committed.

The offender must deliberately reduce the precious metal in the coin. Deliberate
intent arises only when the offender collects the precious metal dust from the
mutilated coin. If the offender does not collect such dust, intent to mutilate is
absent, but Presidential Decree No. 247 will apply.

Article 164
MULTILATION OF COINS IMPORTATION AND UTTERANCE:

This has been repealed by PD 247. (Defacement, Mutilation, Tearing,
Burning or Destroying Central Bank Notes and Coins)

Under this PD, the acts punishable are:
a. willful defacement
b. mutilation
c. tearing
d. burning
e. destruction of Central Bank notes and coins

Mutilation to take off part of the metal either by filling it or substituting it
for another metal of inferior quality, to diminish by inferior means (to
diminish metal contents).

Foreign notes and coins not included. Must be legal tender.

Must be intention to mutilate.

Mutilation under the Revised Penal Code is true only to coins. It cannot be a
crime under the Revised Penal Code to mutilate paper bills because the idea of


69
mutilation under the code is collecting the precious metal dust. However, under
Presidential Decree No. 247, mutilation is not limited to coins.

Questions & Answers

1. The people playing cara y cruz, before they throw the coin in the
air would rub the money to the sidewalk thereby diminishing the intrinsic value
of the coin. Is the crime of mutilation committed?

Mutilation, under the Revised Penal Code, is not committed because they
do not collect the precious metal content that is being scraped from the coin.
However, this will amount to violation of Presidential Decree No. 247.

2. When the image of Jose Rizal on a five-peso bill is transformed into
that of Randy Santiago, is there a violation of Presidential Decree No. 247?

Yes. Presidential Decree No. 247 is violated by such act.

4. An old woman who was a cigarette vendor in Quiapo refused to
accept one-centavo coins for payment of the vendee of cigarettes he purchased.
Then came the police who advised her that she has no right to refuse since the
coins are of legal tender. On this, the old woman accepted in her hands the
one-centavo coins and then threw it to the face of the vendee and the police.
Was the old woman guilty of violating Presidential Decree No. 247?

She was guilty of violating Presidential Decree No. 247 because if no one
ever picks up the coins, her act would result in the diminution of the coin in
circulation.

5. A certain customer in a restaurant wanted to show off and used a P
20.00 bill to light his cigarette. Was he guilty of violating Presidential Decree No.
247?

He was guilty of arrested for violating of Presidential Decree No. 247.
Anyone who is in possession of defaced money is the one who is the violator of
Presidential Decree No. 247. The intention of Presidential Decree No. 247 is not
to punish the act of defrauding the public but what is being punished is the act
of destruction of money issued by the Central Bank of the Philippines.

Note that persons making bracelets out of some coins violate Presidential Decree
No. 247.

The primary purpose of Presidential Decree No. 247 at the time it was ordained
was to stop the practice of people writing at the back or on the edges of the
paper bills, such as "wanted: pen pal".

So, if the act of mutilating coins does not involve gathering dust like playing cara
y cruz, that is not mutilation under the Revised Penal Code because the offender
does not collect the metal dust. But by rubbing the coins on the sidewalk, he
also defaces and destroys the coin and that is punishable under Presidential
Decree No. 247.


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Article 165
SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

2 Types
a. Possession of coin, counterfeited or mutilated by another
person, with intent to utter the same, knowing that it is false
or mutilated.

ELEMENTS:
1. possession

2. with intent to utter, and

3. knowledge

b. Actually uttering such false or mutilated coin, knowing the
same to be false or mutilated.

ELEMENTS:
1. actually uttering, and

2. knowledge.

Possession does not require legal tender in foreign coins

Includes constructive possession

On counterfeiting coins, it is immaterial whether the coin is legal tender or not
because the intention of the law is to put an end to the practice of imitating
money and to discourage anyone who might entertain the idea of imitating
money (People vs. Kong Leon).

Article 166
FORGING TREASURY OR BANK NOTES IMPORTING AND UTTERING

Acts punishable:
a. Forging or falsity of treasury/bank notes or documents
payable to bearer

b. Importing of such notes

c. Uttering of such false or forged obligations and notes in
connivance with forgers and importers

Forging by giving a treasury or bank note or document payable to
bearer/order an appearance of a true and genuine document

Falsification by erasing, substituting, counterfeiting or altering by any
means the figures and letters, words, signs contained therein

E.g. falsifying lotto or sweepstakes ticket. Attempted estafa through
falsification of an obligation or security of the Phil


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PNB checks not included here its falsification of commercial document
under Article 172

Obligation or security includes: bonds, certificate of indebtedness, bills,
national bank notes, coupons, treasury notes, certificate of deposits, checks,
drafts for money, sweepstakes money

If the falsification is done on a document that is classified as a government
security, then the crime is punished under Article 166. On the other hand, if it is
not a government security, then the offender may either have violated Article
171 or 172.

Article 167
COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT
PAYABLE TO BEARER

ELEMENTS :
a. That there be an instrument payable to order or other
document of credit not payable to bearer.

b. That the offender either forged, imported or uttered such
instruments.

c. That in case of uttering, he connived with the forger or
importer.

Article 168
ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES
AND OTHER INSTRUMENT OF CREDIT

ELEMENTS:
a. That any treasury or bank note or certificate or other
obligation and security payable to bearer, or any instrument
payable to order or other document of credit not payable to
bearer is forged or falsified by another person.

b. That the offender knows that any of those instruments is
forged or falsified.

c. That he performs any of these acts
1. using any of such forged or falsified instrument, or
2. possessing with intent to use any of such forged or falsified
instrument.

Act sought to be punished: Knowingly possessing with intent to use any of
such forged treasury or bank notes

Article 169
FORGERY

How forgery is committed:


72
a. by giving to a treasury or bank note or any instrument payable to
bearer or to order, the appearance of a true and genuine
document

b. by erasing, substituting, counterfeiting, altering by any means
the figures, letters or words, or signs contained therein.

if all acts done but genuine appearance is not given, the crime is frustrated

Forgery under the Revised Penal Code applies to papers, which are in the form
of obligations and securities issued by the Philippine government as its own
obligations, which is given the same status as legal tender. Generally, the word
counterfeiting is not used when it comes to notes; what is used is forgery.
Counterfeiting refers to money, whether coins or bills.

Notice that mere change on a document does not amount to this crime. The
essence of forgery is giving a document the appearance of a true and genuine
document. Not any alteration of a letter, number, figure or design would
amount to forgery. At most, it would only be frustrated forgery.

When what is being counterfeited is obligation or securities, which under the
Revised Penal Code is given a status of money or legal tender, the crime
committed is forgery.

Questions & Answers

1. Instead of the peso sign (P), somebody replaced it with a dollar
sign ($). Was the crime of forgery committed?

No. Forgery was not committed. The forged instrument and currency
note must be given the appearance of a true and genuine document. The crime
committed is a violation of Presidential Decree No. 247. Where the currency
note, obligation or security has been changed to make it appear as one which it
purports to be as genuine, the crime is forgery. In checks or commercial
documents, this crime is committed when the figures or words are changed
which materially alters the document.

2. An old man, in his desire to earn something, scraped a digit in a
losing sweepstakes ticket, cut out a digit from another ticket and pasted it there
to match the series of digits corresponding to the winning sweepstakes ticket.
He presented this ticket to the Philippine Charity Sweepstakes Office. But the
alteration is so crude that even a child can notice that the supposed digit is
merely superimposed on the digit that was scraped. Was the old man guilty of
forgery?

NO Because of the impossibility of deceiving whoever would be the person
to whom that ticket is presented, the Supreme Court ruled that what was
committed was an impossible crime. Note, however, that the decision has been
criticized. In a case like this, the Supreme Court of Spain ruled that the crime is
frustrated. Where the alteration is such that nobody would be deceived, one
could easily see that it is a forgery, the crime is frustrated because he has done
all the acts of execution which would bring about the felonious consequence but


73
nevertheless did not result in a consummation for reasons independent of his
will.

3. A person has a twenty-peso bill. He applied toothache drops on
one side of the bill. He has a mimeograph paper similar in texture to that of the
currency note and placed it on top of the twenty-peso bill and put some weight
on top of the paper. After sometime, he removed it and the printing on the
twenty-peso bill was reproduced on the mimeo paper. He took the reverse side
of the P20 bill, applied toothache drops and reversed the mimeo paper and
pressed it to the paper. After sometime, he removed it and it was reproduced.
He cut it out, scraped it a little and went to a sari-sari store trying to buy a
cigarette with that bill. What he overlooked was that, when he placed the bill,
the printing was inverted. He was apprehended and was prosecuted and
convicted of forgery. Was the crime of forgery committed?

The Supreme Court ruled that it was only frustrated forgery because
although the offender has performed all the acts of execution, it is not possible
because by simply looking at the forged document, it could be seen that it is not
genuine. It can only be a consummated forgery if the document which purports
to be genuine is given the appearance of a true and genuine document.
Otherwise, it is at most frustrated.

Five classes of falsification:

(1) Falsification of legislative documents;

(2) Falsification of a document by a public officer, employee or notary public;

(3) Falsification of a public or official, or commercial documents by a private
individual;

(4) Falsification of a private document by any person;

(5) Falsification of wireless, telegraph and telephone messages.

The crime of falsification must involve a writing that is a document in the legal
sense. The writing must be complete in itself and capable of extinguishing an
obligation or creating rights or capable of becoming evidence of the facts stated
therein. Until and unless the writing has attained this quality, it will not be
considered as document in the legal sense and, therefore, the crime of
falsification cannot be committed in respect thereto.

Distinction between falsification and forgery:

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

The term forgery as used in Article 169 refers to the falsification and
counterfeiting of treasury or bank notes or any instruments payable to bearer or
to order.

Note that forging and falsification are crimes under Forgeries.


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Article 170
FALSIFICATION OF LEGISLATIVE DOCUMENTS

ELEMENTS :
a. That these be a bill, resolution or ordinance enacted or approved
or pending approval by the national assembly or any provincial
board or municipal council.

b. That the offender (any person) alters the same.

c. That he has no proper authority therefor.

d. That the alteration has changed the meaning of the document.

The words "municipal council" should include the city council or municipal board
Reyes.

Accused must not be a public official entrusted with the custody or
possession of such document otherwise Art 171 applies .

The falsification must be committed on a genuine, true and authentic legislative
document. If committed on a simulated, spurious or fabricated legislative
document, the crime is not punished under this article but under Article 171 or
172.

Article 171
FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR
NOTARY OR ECCLESTASTICAL MINISTER

ELEMENTS:
a. That the offender is a public officer, employee, or notary public.

b. That he takes advantage of his official position.

c. That he falsifies a document by committing any of the following
acts:

1. Counterfeiting or imitating any handwriting, signature or
rubric.

Requisites:
i. That there be an intent to imitate, or an attempt to imitate

ii. That the two signatures or handwritings, the genuine and the
forged, bear some resemblance, to each other

! (lack of similitude/imitation of a genuine signature will not be a
ground for conviction under par. 1 but such is not an
impediment to conviction under par. 2)

2. Causing it to appear that persons have participated in any act
or proceeding when they did not in fact so participate.


75

3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them.

Requisites:
i. That the offender caused it to appear in a document that a
person/s participated in an act or a proceeding; and

ii. That such person/s did not in fact so participate in the act or
proceeding

4. Making untruthful statements in a narration of facts;

Requisites:
i. That the offender makes in a document statements in a
narration of facts

ii. That he has a legal obligation to disclose the truth of the facts
narrated by him; (required by law to be done) and

iii. That the facts narrated by the offender are absolutely false; and

iv. That the perversion or truth in the narration of facts was made
with the wrongful intent of injuring a third person

! There must be a narration of facts, not a conclusion of law. Must
be on a material matter

For one to be held criminally liable for falsification under paragraph 4, the
untruthful statement must be such as to effect the integrity of the document or
to change the effects which it would otherwise produce.

! Legal obligation means that there is a law requiring the disclosure
of the truth of the facts narrated. Ex. Residence certificates

! The person making the narration of facts must be aware of the
falsity of the facts narrated by him. This kind of falsification may be
committed by omission

5. Altering true dates.
date must be essential

For falsification to take place under this paragraph, the date of the document
must be material to the right created or to the obligation that is extinguished.

6. Making any alteration or intercalation in a genuine document
which changes its meaning.

Requisites:
i. That there be an alteration (change) or intercalation (insertion)
on a document

ii. That it was made on a genuine document


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iii. That the alteration/intercalation has changed the meaning of
the document

iv. That the change made the document speak something false.

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 copy a statement contrary to, or different
from, that of the genuine original; (if no knowledge, falsification
through negligence) or

The acts of falsification mentioned in this paragraph are committed by a public
officer or by a notary public who takes advantage of his official position as
custodian of the document. It can also refer to a public officer or notary who
prepared and retained a copy of the document. The falsification can be done in
two ways. It can be a certification purporting to show that the document issued
is a copy of the original on record when no such original exists. It can also be in
the form of a certification to the effect that the document on file contains
statements or including in the copy issued, entries which are not found on
contrary to, or different from the original genuine document on file.

8. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book. (genuine
document)

d. In case the offender is an ecclesiastical minister, the act of falsification is
committed with respect to any record or document of such character that
its falsification may affect the civil status of persons.

There is no crime of attempted or frustrated falsification of public document

Alteration or changes to make the document speak the truth do not constitute
falsification. (US vs. Mateo, 25 Phil. 324)

Persons liable public officer, employee or notary public or ecclesiastical
minister

Either he has duty to intervene in the preparation of the document or it may be a
situation wherein the public officer has official custody of the document.

So even if the offender is a public officer, if her causes the falsification of a
document which is not in his official custody or if the falsification committed
by him is not related whatsoever to the performance of his duties, he will still
be liable for falsification but definitely not under this Article but under Article
172. (falsification of documents by a private person)

Document: Any written instrument which establishes a right or by which an
obligation is extinguished. A deed or agreement executed by a person setting
forth any disposition or condition wherein rights and obligations may arise.

Writing may be on anything as long as it is a product of the handwriting, it
is considered a document.


77
Not necessary that what is falsified is a genuine or real document, enough
that it gives an appearance of a genuine article

As long as any of the acts of falsification is committed, whether the
document is genuine or not, the crime of falsification may be committed. Even
totally false documents may be falsified.

Counterfeiting imitating any handwriting, signature or rubric

Feigning simulating a signature, handwriting, or rubric out of one of which
does not in fact exist

It does not require that the writing be genuine. Even if the writing was through
and through false, if it appears to be genuine, the crime of falsification is
nevertheless committed.

There are four kinds of documents:

(1) Public document in the execution of which, a person in authority or notary
public has taken part;

(2) Official document in the execution of which a public official takes part;

(3) Commercial document or any document recognized by the Code of
Commerce or any commercial law; and

(4) Private document in the execution of which only private individuals take
part.

Public document is broader than the term official document. Before a document
may be considered official, it must first be a public document. But not all public
documents are official documents. To become an official document, there must
be a law which requires a public officer to issue or to render such document.
Example: A cashier is required to issue an official receipt for the amount he
receives. The official receipt is a public document which is an official document.

Liability of a private individual in falsification by a public officer when
there is conspiracy.

Under Republic Act 7975, when a public officer who holds a position classified as
Grade 27 or higher, commits a crime in relation to the performance of his official
functions, the case against him will fall under the jurisdiction of the
Sandiganbayan. If a private person is included in the accusation because of the
existence of conspiracy in the commission of the crime, the Sandiganbayan shall
maintain jurisdiction over the person of the co-accused, notwithstanding the fact
that said co-accused is a private individual. If the public officer is found guilty,
the same liability and penalty shall be imposed on the private individual. (U.S.
vs. Ponce, 20 Phil. 379)

Article 172
FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT
BY A PRIVATE INDIVIDUAL (par 1)


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ELEMENTS
a. That the offender is a private individual or a public officer or
employee who did not take advantage of his official position.

b. That he committed any of the acts of falsification enumerated in
ART. 171.

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 participated.

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;

5. Altering true dates.

6. Making any alteration or intercalation in a genuine document
which changes its meaning.

c. That the falsification was committed in any public or official or
commercial document.

Under this paragraph, damage is not essential, it is presumed

If the falsification of public, official or commercial documents, whether they be
public official or by private individuals, it is not necessary that there be present
the idea of gain or the intent to injure a third person. What is punished under
the law is the violation of public faith and the perversion of the truth as solemnly
proclaimed by the nature of the document. (Sarep vs. Sandiganbayan)

Defense: lack of malice or criminal intent

The following writings are public:
a. the written acts or records of acts of the sovereign authority of official
bodies and tribunals, and of the public officers, legislative, judicial and
executive, whether of the Philippines or of a foreign country.

b. Public records kept in the Philippines.

Examples of commercial documents warehouse receipts, airway bills, bank
checks, cash files, deposit slips and bank statements, journals, books,
ledgers, drafts, letters of credit and other negotiable instruments

There is a complex crime of estafa through falsification of public, official
or commercial document. In the crime of estafa, damage or intent to cause
damage is not an element. It is sufficient that the offender committed or
performed the acts of falsification as defined and punished under Article 171.
The two offenses can co-exist as they have distinct elements peculiar to their
nature as a crime. When the falsification is committed because it is necessary to


79
commit estafa, what we have is a complex crime defined and punished under
Article 48 of the Revised Penal Code.

There is a complex crime of falsification of pubic documents through reckless
imprudence.

Cash disbursement vouchers or receipts evidencing payments are not
commercial documents

A mere blank form of an official document is not in itself a document

The possessor of falsified document is presumed to be the author of the
falsification

FALSIFICATION UNDER PARAGRAPH 2 OF ART. 172. OF PRIVATE
DOCUMENT

ELEMENTS :
a. That the offender committed any of the acts of falsification,
except those in paragraph 7 and 8, enumerated in art. 171.

b. That the falsification was committed in any private document
(must affect the truth or integrity of the document)

c. That the falsification caused damage (essential element; hence, no
crime of estafa thru falsification of private document) to a third party or
at least the falsification was committed with intent to cause such
damage.

Not necessary that the offender profited or hoped to profit from the
falsification

Falsification of a private document is consummated when such document is
actually falsified with the intent to prejudice a third person whether such falsified
document is or is not thereafter put to illegal use for which it is intended.
(Lopez vs. Paras, 36 Phil. 146)

What is emphasized at this point is the element of falsification of private
document. There must be intent to cause damage or damage is actually caused.
The intention is therefore must be malicious or there is deliberate intent to
commit a wrong. Reckless imprudence is incompatible with malicious intent.

Falsification is not a continuing offense

There is no falsification through reckless imprudence if the document is a private
document.

Falsification by omission

Mere falsification of a private document is not enough to commit crime under
paragraph 2 of Article 172. Two acts must be done by the offender. 1) He must
have performed in the private document the falsification contemplated under
Article 171. 2) He must have performed an independent act which operates to


80
cause damage or prejudice to a third person. The third person mentioned herein
may include the government. Damage is not limited to money or pecuniary
prejudice. Damage to ones honor, reputation or good name is included.

A document falsified as a necessary means to commit another crime must be
public, official or commercial

There is no complex crime of estafa through falsification of a private
document because the immediate effect of the latter is the same as that of
estafa

If a private document is falsified to cause damage to the offended party, the
crime committed is falsification of a private document. Remember that in estafa,
damage or intent to cause damage is an indispensable element of the crime. The
same element is necessary to commit the crime of falsification of private
document. Since they have a common element, such element cannot be divided
into the two parts and considered as two separate offenses.

There is no complex crime of estafa with falsification because deceit is a
common element of both. One and the same deceit or damage cannot give rise
to more than one crime. It is either estafa or falsification.

Criteria to determine whether the crime is estafa only or falsification
only :

IF the falsification of the private document was essential in the commission of
estafa because the falsification, estafa cannot be committed, the crime is
falsification; estafa becomes the consequence of the crime.

IF the estafa can be committed even without resorting to falsification, the latter
being resorted only to facilitate estafa, the main crime is estafa; falsification is
merely incidental, since even without falsification, estafa can be committed.

If the estafa was already consummated at the time of the falsification of a
private document was committed for the purpose of concealing the estafa,
the falsification is not punishable, because as regards the falsification of the
private document there was no damage or intent to cause damage.

A private document which is falsified to obtain money from offended party is a
falsification of private document only.

A private document may acquire the character of a public document when it
becomes part of an official record and is certified by a public officer duly
authorized by law

The crime is falsification of public documents even if falsification took place
before the private document becomes part of the public records

Examples:
An employee of a private company who punches the bundy clock on behalf on a
co-employee is guilty of falsification of a private document.

One who will take the civil service examination for another and makes it appear
that he is the examinee is guilty of falsification of a public document.


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USE OF FALSIFIED DOCUMENT (par. 3, art. 172)

ELEMENTS:

a. Introducing in a judicial proceeding:
1. That the offender knew that a document was falsified by
another person.

2. That the false document is embraced in art. 171 or in any
subdivisions nos. 1 and 2 of art. 172.

3. That he introduced said document in evidence in any judicial
proceeding. (intent to cause damage not necessary)

b. Use in any other transaction:
1. That the offender knew that a document was falsified by
another person.

2. That the false document is embraced in art. 171 or in any of
subdivisions nos. 1 and 2 of art. 172.

3. That he used such documents (not in judicial proceedings).

4. That the use of the documents caused damage to another or
at least was used with intent to cause such damage.

The user of the falsified document is deemed the author of
falsification, if:
a. the use is so closely connected in time with the falsification

b. the user had the capacity of falsifying the document

Falsification of Private
Documents
Falsification of Public/Official
Documents
Prejudice to third party is an
element of the offense.
Prejudice to third persons is immaterial,
what is punished is the violation of public
faith and perversion of truth which the
document proclaims.

Rules to observe in the use of a falsified document.
1. It is a crime when knowingly introduced in a judicial proceeding even if there
is not intent to cause damage to another. Knowingly introducing a falsified
document in a judicial proceeding, the use alone is not a crime. The mere
introduction of the forged document is the crime itself. But when the falsified
document is knowingly introduced in an administrative proceeding, the use
alone is not a crime. There must be intent to cause damage or damage is
actually inflicted.

2. Falsification of document is a separate and distinct offense from that of the
use of falsified documents. So if the falsification of document was done or
performed because it was necessary to the use of the same and in the
commission of the crime, then we may have a complex crime defined and
punished under Article 48 of the Revised Penal Code.


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3. Good faith is a defense in falsification of public document.
Article 173
FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE
MESSAGES, AND USE OF SAID FALSIFIED MESSAGES

Acts punishable:
1. Uttering fictitious, wireless, telegraph or telephone message
Requisites:
a. That the offender is an officer or employee of the government or
an officer or employee of a private corporation, engaged in the
service of sending or receiving wireless, cable or telephone
message.

b. That the accused commits any of the following acts:
- uttering fictitious wireless, cable, telegraph, or telephone
message, or
- falsifying wireless, cable, telegraph, or telephone message

2. Falsifying wireless, telegraph or telephone message
Requisites:
a. That the offender is an officer or employee of the government or
an officer or employee of a private corporation, engaged in the
service of sending or receiving wireless, cable or telephone
message.

b. That the accused commits any of the following acts:
- uttering fictitious wireless, cable, telegraph, or telephone
message, or
- falsifying wireless, cable, telegraph, or telephone message

3. Using such falsified message
Requisites:
a. That the accused knew that wireless, cable, telegraph, or telephone
message was falsified by any of the person specified in the first
paragraph of art. 173.

b. That the accused used such falsified dispatch.

c. That the use of the falsified dispatch resulted in the prejudice of a
third party, or that the use thereof was with intent to cause such
prejudice.

The public officer, to be liable must be engaged in the service of sending or
receiving wireless, cable and telegraph or telephone message

Article 174
FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT
OR SERVICE AND THE LIKE:

Persons liable:
a. Physician or surgeon who, in connection with the practice of his
profession, issued a false certificate (note: such certificate must refer to
the illness or injury of a person)


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b. Public officer who issued a false certificate of merit of service, good
conduct or similar circumstances

c. Private individual who falsified a certificate under (1) and (2)

Article 175
USING FALSE CERTIFICATES

ELEMENTS:
a. That a physician or surgeon has issued a false medical
certificate, or a public officer has issued a false certificate of
merit or service, good conduct, or similar circumstances, or a
private person had falsified any of said certificates.

b. That the offender knew that the certificate was false.

c. That he used the same.

Article 176
MANUFACTURING AND POSSESSION OF INTRUMENTS OR
IMPLEMENTS FOR FALSIFICATION:

Acts punishable:
a. Making or introducing into the Philippines any stamps, dies or
marks or other instruments or implements for counterfeiting
or falsification

b. Possessing with intent to use the instruments or implements
for counterfeiting or falsification made in or introduced into
the Philippines by another person

The implement confiscated need not form a complete set

Constructive possession is also punished

OTHER FALSITIES

Article 177
USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS:

2 ways of committing the crime:
a. By knowingly and falsely representing oneself to be an officer,
agent or representative of any department or agency of the
Philippine govt or any foreign govt.

b. By performing an act pertaining to any person in authority or
public officer of the Phil govt or foreign govt under the
pretense of such official position, and without being lawfully
entitled to do so.


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In usurpation of authority: The mere act of knowingly and falsely
representing oneself is sufficient. Not necessary that he performs an act
pertaining to a public officer.

Elements

1. Offender knowingly and falsely represents himself;

2. As an officer, agent or representative of any department or
agency of the Philippine government or of any foreign
government.

In usurpation of official functions: It is essential that the offender should
have performed an act pertaining to a person in authority

Elements

1. Offender performs any act;

2. Pertaining to any person in authority or public officer of the
Philippine government or any foreign government, or any
agency thereof;

3. Under pretense of official position;

4. Without being lawfully entitled to do so.

A public officer may also be an offender
The act performed without being lawfully entitled to do so must
pertain:
a. to the govt
b. to any person in authority
c. to any public office

Foreign government adverted to in this article refers to public officers duly
authorized to perform governmental duties in the Philippines. The law cannot
refer to other foreign governments as its application may bring us to legal
problems which may infringe on constitutional boundaries.

If the offender commits the acts of usurpation as contemplated herein, and he
does it because he is a rebel and pursuant to the crime of rebellion or
insurrection or sedition, he will not be liable under this article because what is
attributed against him as a crime of usurpation is in fact one of the elements of
committing rebellion.

The elements of false pretense is necessary to commit the crime of usurpation
of official function.

Article 178
USING FICTITIOUS NAME AND CONCEALING TRUE NAME

ELEMENTS (using fictitious name) :
a. That the offender uses a name other than his real name.


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b. That he uses that fictitious name publicly.

c. That the purpose of the offender is
1. To conceal a crime,
2. To evade the execution of a judgment, or
3. To cause damage to public interest. (ex. Signing fictitious
name for a passport)

The name of a person is what appears in his birth certificate. The name of a
person refers to his first name, surname, and maternal name. Any other name
which a person publicly applies to himself without authority of law is a fictitious
name.

ELEMENTS (concealing true name):
a. that the offender conceals

1. his true name, and

2. all other personal circumstances.

b. that the purpose is only to conceal his identity.

What the offender does to violate or commit this act is for him to conceal his
true name and other personal circumstances. His only motive in doing so is to
conceal his identity. In concealment of true name, the deception is done
momentarily, just enough to conceal the name of the offender. In the use of
fictitious name, the offender presents himself before the public with another
name.

A person under investigation by the police who gives a false name and false
personal circumstances, upon being interrogated, is guilty of this crime.

Use of Fictitious Name (178) Concealing True Name (178)
Element of publicity must be present Publicity not necessary
Purpose is to conceal a crime, to evade
the execution of a judgement, or to cause
damage
Purpose is to conceal identity

Commonwealth Act No. 142 (Regulating the Use of Aliases)
No person shall use any name different from the one with which he was
registered at birth in the office of the local civil registry, or with which he was
registered in the bureau of immigration upon entry; or such substitute name as
may have been authorized by a competent court.

Exception: Pseudonym solely for literary, cinema, television, radio, or other
entertainment and in athletic events where the use of pseudonym is a normally
accepted practice.

Article 179
ILLEGAL USE OF UNIFORM OR INSIGNIA

ELEMENTS:


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a. That the offender makes use of insignia, uniform or dress.

b. 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.

c. That said insignia, uniform or dress is used publicly and
improperly.

The wearing of a uniform, or insignia of a non-existing office or establishment is
not a crime. It is necessary that the uniform or insignia represents an office
which carries authority, respect, dignity, or influence which the public looks up
to.

So also, an exact imitation of a uniform or dress is unnecessary; a colorable
resemblance calculated to deceive the common run of people is sufficient.

The wearing of insignia, badge or emblem of rank of the members of the armed
forced of the Philippines or constabulary (now PNP) is punished by Republic Act
No. 493.

When the uniform or insignia is used to emphasize the pageantry of a play or
drama or in moving picture films, the crime is not committed.

Three forms of false testimony

1. False testimony in criminal cases under Article 180 and 181;
2. False testimony in civil case under Article 182;
3. False testimony in other cases under Article 183.

False testimony, defined
It is the declaration under oath of a witness in a judicial proceeding which
is contrary to what is true, or to deny the same, or to alter essentially the truth.

Nature of the crime of false testimony.
1. It cannot be committed through reckless imprudence because false testimony
requires criminal intent or intent to violate the law is an essential element of
the crime.

2. If the false testimony is due to honest mistake or error or there was good
faith in making the false testimony, no crime is committed.

Article 180
FALSE TESTIMONY AGAINST A DEFENDANT
ELEMENTS:
a. That there be a criminal proceeding.

b. That the offender testifies falsely under oath against the
defendant therein.

c. That the offender who gives false testimony knows that it is
false.


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d. That the defendant against whom the false testimony is given is
either acquitted or convicted in a final judgment (prescriptive
period starts at this point)
Requires criminal intent, cant be committed through negligence. Need not
impute guilt upon the accused

The defendant must at least be sentenced to a correctional penalty or a fine
or must have been acquitted

The witness who gave false testimony is liable even if the court did not
consider his testimony

The probative value of the testimonial evidence is subject to the rules of
evidence. It may not be considered at all by the judge. But whether the
testimony is credible or not or whether it is appreciated or not in the context that
the false witness wanted it to be, the crime of false testimony is still committed,
since it is punished not because of the effect it produces, but because of its
tendency to favor the accused. (People vs. Reyes)

Penalty is dependent upon sentence imposed on the defendant

Article 181
FALSE TESTIMONY IN FAVOR OF DEFENDANT in a criminal case:

Elements:
1. A person gives false testimony;

2. In favor of the defendant;

3. In a criminal case.

False testimony by negative statement is in favor of the defendant

False testimony need not in fact benefit the defendant

A statement of a mere opinion is not punishable

Conviction or acquittal is not necessary (final judgement is not necessary).
The false testimony need not influence the acquittal

A defendant who voluntarily goes up on the witness stand and falsely imputes
the offense to another person the commission of the offense is liable under
this article. If he merely denies the commission of the offense, he is not
liable.

Basis of penalty: gravity of the felony charged against the defendant

Article 182
FALSE TESTIMONY IN CIVIL CASES

ELEMENTS:
a. That the testimony must be given in a civil case.


88

b. That the testimony must relate to the issues presented in said
case.

c. That the testimony must be false.

d. That the false testimony must be given by the defendant
knowing the same to be false.

e. That the testimony must be malicious and given with an intent to
affect the issues presented in the said case

Not applicable when testimony given in a special proceeding (in this case, the
crime is perjury)

Basis of penalty: amount involved in the civil case

Distinctions between perjury and false testimony:
PERJURY FALSE TESTIMONY
1. Non-judicial proceedings. 1. Given in a judicial proceeding.
2. Statement or testimony is required
by law.
2. Testimony need not be required by
law.
3. Amount involved is not material. 3. Amount involved in civil cases is
material.
4. immaterial whether statement or
testimony is favorable or not to the
accused.
4. It is always material in criminal
cases.

Article183
FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN
AFFIRMATION

ELEMENTS:
a. That an accused made a statement under oath or made an
affidavit upon a material matter.

b. That the statement or affidavit was made before a competent
officer, authorized to receive and administer oath.

c. That in that statement or affidavit, the accused made a willful
and deliberate assertion of a falsehood, and

d. That the sworn statement or affidavit containing the falsity is
required by law.

2 ways of committing perjury:
a. by falsely testifying under oath
b. by making a false statement

Subornation of perjury: procures another to swear falsely.

Solemn affirmation: refers to non-judicial proceedings and affidavits


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A false affidavit to a criminal complaint may give rise to perjury

Two contradictory sworn statements are not sufficient to convict the affiant for
the crime of perjury. There must be evidence to show which is false. The same
must be established or proved from sources other than the two contradictory
statements. (People vs. Capistrano, 40 Phil. 902)

A matter is material when it is directed to prove a fact in issue

The test of materiality is whether a false statement can influence the court
(People vs. Bnazil).

A competent person authorized to administer an oath means a
person who has a right to inquire into the questions presented to him upon
matters under his jurisdiction

There is no perjury if the accused signed and swore the statement before a
person not authorized to administer oath (People vs. Bella David).

There is no perjury through negligence or imprudence since the assertion of
falsehood must be willful and deliberate

Because of the nature of perjury, which is the willful and corrupt assertion of a
falsehood, there is no perjury committed through reckless imprudence or simple
negligence under Article 365. Since admittedly perjury can only be committed by
means of dolo, then good faith or lack of malice is a good defense when one is
indicted for the crime of perjury.

Even if there is no law requiring the statement to be made under oath, as
long as it is made for a legal purpose, it is sufficient

If there is no requirement of law to place the statement or testimony
under oath, there is no Perjury considering the phrases oath in cases in which
the law so requires in Article 183.

The affidavit or sworn statement must be required by law like affidavit of
adverse claim to protect ones interest on real property; or an affidavit of good
moral character to take the bar examination. So if the affidavit was made but the
same is not required by law, even if the allegations are false, the crime of
perjury is not committed. (Diaz vs. People, 191 SCRA 86)

Perjury is an offense which covers false oaths other than those taken in the
course of judicial proceedings

False testimony before the justice of the peace during the P.I. may give rise
to the crime of perjury because false testimony in judicial proceedings
contemplates an actual trial where a judgment of conviction or acquittal is
rendered

A person who knowingly and willfully procures another to swear falsely
commits subornation of perjury and the witness suborned does testify under
circumstances rendering him guilty of perjury.

The false testimony is not in a judicial proceeding


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False testimony vs. Perjury
When one testifies falsely before the court, the crime committed is false
testimony. If one testifies falsely in a non-judicial proceeding, the crime
committed is perjury. In false testimony, it is not required that the offender
asserts a falsehood on a material matter. It is enough that he testifies falsely
with deliberate intent. In perjury, the witness must testify or assert a fact on a
material matter with a full knowledge that the information given is essentially
contrary to the truth. Material matter means the main fact which is the subject or
object of the inquiry.

Article 184
OFFERING FALSE TESTIMONY IN EVIDENCE

ELEMENTS:
a That the offender offered in evidence a false witness or false
testimony.

b That he knew the witness or the testimony was false.

c That the offer was made in a judicial or official proceeding.

The false witness need not be convicted of false testimony. The mere offer is
sufficient.

The offender in this article knows that the witness to be presented is a false
witness or that the witness will lie while testifying. The proceedings is either
judicial or official. There is a formal offer of testimonial evidence in the
proceedings. The witness is able to testify and the offender, knowing the
testimony is given by the witness to be false, nevertheless offers the same in
evidence. In this case, the person offering the false testimony must have nothing
to do in the making of the false testimony. He knows that the witness is false
and yet he asks him to testify and thereafter offers the testimony in evidence. So
if the offeror, aside from being such, is also the person responsible in inducing or
convincing the false witness to lie, Article 184 will not apply. The applicable
article will be Article 180, 181, 182, or 183 as the case may be. The offenders in
this case will be charged with perjury; the inducer as principal by inducement
and the induced party as the principal by direct participation.

It is for this reason that subornation of perjury is no longer treated as a
specific felony with a separate article of its own. Nevertheless, it is a crime
defined and punished under the Revised Penal Code. The crime committed by
one who induces another to testify falsely and the person who agrees and in
conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66
Phil. 365)

FRAUDS

Article 185
MACHINATIONS IN PUBLIC AUCTION

ELEMENTS:


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a That there be a public auction.

b That the accused solicited any gift or a promise from any of the
bidders.

c That such gifts or promise was the consideration for his
refraining from taking part in that public auction.

d That the accused had the intent to cause the reduction of the
price of the thing auctioned.

ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY:
a That there be a public auction.

b That the accused attempted to cause the bidders to stay away
from that public auction

c That it was done by threats, gifts, promises, or any other artifice.

d That the accused had the intent to cause the reduction of the
price of the thing auctioned.

Article 186
MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE:

Acts punished:

a. Combination to prevent free competition in the market

Elements

1. Entering into any contract or agreement or taking part in
any conspiracy or combination in the form of a trust or
otherwise;

2. In restraint of trade or commerce or to prevent by artificial
means free competition in the market.

b. By entering into a contract or agreement or taking part in any
conspiracy or combination in the form of a trust or otherwise, in
restraint of trade or commerce or prevent by artificial means free
competition in the market (It is enough that initial steps are taken. It
is not necessary that there be actual restraint of trade)

c. Monopoly to restrain free competition in the market

Elements

1. By monopolizing any merchandise or object of trade or
commerce, or by combining with any other person or
persons to monopolize said merchandise or object;


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2. In order to alter the prices thereof by spreading false
rumors or making use of any other artifice;

3. To restrain free competition in the market

d. Manufacturer, producer or processor or importer combining,
conspiring or agreeing with any person to make transactions
prejudicial to lawful commerce or to increase the market price of
the merchandise.

Elements

1. Manufacturer, producer, processor or importer of any
merchandise or object of commerce;

2. Combines, conspires or agrees with any person;

3. Purpose is to make transactions prejudicial to lawful
commerce or to increase the market price of any
merchandise or object of commerce manufactured,
produced, processed, assembled or imported into the
Philippines.

Person/s liable:
a. manufacturer
b. producer
c. processor
d. importer

Crime is committed by:
a. combining
b. conspiring
c. agreeing with another person

The purpose is:
a. to make transactions prejudicial to lawful commerce
b. to increase the market price of any merchandise or object of commerce
manufactured, produced, processed, assembled or imported into the Phil

Also liable as principals:
a. corporation/association
b. agent/representative
c. director/manager who willingly permitted or failed to prevent
commission of above offense

Aggravated if items are:
a. food substance
b. motor fuel or lubricants
c. goods of prime necessity

Article 187
IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR
MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS
OR THEIR ALLOYS


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ELEMENTS:
a That the offender imports, sells or disposes of any of those
articles or merchandise.

b That the stamps, brands, or marks or those articles or
merchandise fails to indicate the actual fineness or quality of said
metals or alloys.

c That the offender knows that the said stamp, brand, or mark fails
to indicate the actual fineness or quality of the metals or alloys.

To be criminally liable, it is important to establish that the offender knows the
fact that the imported merchandise fails to indicate the actual fineness or quality
of the precious metal. If the importer has no expertise on the matter such that
he has no way of knowing how the fraud was committed, the existence of such
fact may be seriously considered as a defense.

What the law punishes herein is the selling of misbranded goods made of gold,
silver and other precious metals. Therefore, it must be shown that the seller
knows that the merchandise is misbranded. Hence, dishonesty is an essential
element of the crime.

Article 188
SUBSTITUTING ALTERING TRADE-MARK, TRADENAME, OR SERVICE
MARK

Acts punishable:
a By (a) substituting the trade name (t/n) or trademark (t/m) of
some other manufacturer or dealer or a colorable imitation
thereof, for the t/n or t/m of the real manufacturer or dealer
upon any article of commerce and (b) selling the same.

b By selling or by offering for sale such article of commerce,
knowing that the t/n or t/m has been fraudulently used

c By using or substituting the service mark of some other person,
or a colorable imitation of such marks, in the sale or advertising
of services

d By printing, lithographing or reproducing t/n, t/m or service
mark of one person, or a colorable limitation thereof, to enable
another person to fraudulently use the same, knowing the
fraudulent purpose for which it is to be used.

If a particular person is defrauded by the offender; as in the case of locally
manufactured goods, which the offender, by altering the label, are made to
appear as imported articles and sold to a particular person, the crime
committed is undoubtedly estafa as far as the particular person is concerned.
But if the falsely mislabeled goods are displayed in a store and offered for
sale to the public in general, the crime committed is punished under Article
188. So, if the deception is isolated and is confined to a particular person or


94
group of persons, estafa is committed. If the fraud is employed against the
public, Article 188 is violated.

Must not be another manufacturer otherwise unfair competition

Take note that after making the substitution the goods are displayed in the store
or market for sale, Article 188 is already committed even if no customer comes
to buy any of the goods on display. The mere offer for sale to the public
consummates the crime.

The pendency of the administrative aspect of the case is not a prejudicial
question in the resolution of the criminal case.

Article 189
UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME,
TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN,
AND FALSE DESCRIPTION

Acts punished:
a Unfair competition by selling his goods, giving them the general
appearance of the goods of another manufacturer or dealer

b Fraudulent designation of origin; false description by (a) affixing to
his goods or using in connection with his services a false designation of
origin; or any false description or representation, and (b) selling such
goods or services

c Fraudulent registration by procuring fraudulently from the patent
office the registration of t/m, t/m or service mark.

ELEMENTS:
a That the offender gives his goods the general appearance of the
goods of another manufacturer or dealer

b That the general appearance is shown in the (a) goods
themselves, or in the (b) wrapping of their packages, or in the (c)
device or words therein, or in (d) any other feature of their
appearance

c That the offender offers to sell or sells those goods or gives other
persons a chance or opportunity to do the same with a like
purpose.

d That there is actual intent to deceive the public or defraud a
competitor.

Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is
defined as follows: It consists in employing deception or any other means
contrary to good faith by which any person shall pass off the goods
manufactured by him or in which he deals, or his business, or services for those
of the one having established goodwill, or committing any acts calculated to
produce such result.


95
The true test of unfair competition is whether certain goods have been
clothed with an appearance which is likely to deceive the ordinary purchaser
exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221)

For unfair competition to take place, it must be the manufacturer of the goods
who will cloth or label his goods with the trade name or trademark of another
manufacturer, who has established a good name or good will in the mind of the
public because of the quality of the merchandise manufactured by him. The
imitator is also a manufacturer of the same kind of product but of inferior quality.
By labeling his product with the trademark or trade name of said manufacturer,
he profits from the goodwill of another.

If the labeling or clothing of the goods is not done by another manufacturer, the
crime committed is not unfair competition but substitution of trademark or trade
name under Article 188.

When the honorable Supreme Court declared that unfair competition is broader
and more inclusive than infringement of trade name or trademark. In
infringement of trade name or trademark, the offended party has a peculiar
symbol or mark on his goods which is considered a property right which must
therefore be protected. In unfair competition, the offended party has identified in
the mind of the public the goods he manufactures to distinguish it from the
goods of the other manufacturers. In infringement of trade name or trademark,
the offender uses the trade name or trademark of another in selling his goods,
while in unfair competition, the offender gives his goods the general appearance
of the goods of another manufacturer and sells the same to the public. (E.
Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224)
TITLE FIVE
CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-
194)

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(RA No. 9165)

I. Acts Punishable:
a. importation of prohibited drugs
b. sale, administration, delivery, distribution and transportation of
prohibited drugs
c. maintenance of a den, dive or resort for prohibited drug users
d. being employees or visitors of drug den
e. manufacture of prohibited drugs
f. possession or use
g. cultivation of plants
h. failure to comply with provisions relative to keeping of records of
prescription
i. unnecessary prescription
j. possession of opium pipe and other paraphernalia
k. Importation, sale, etc. of regulated drugs

DRUG SYNDICATE any organized group of two(2) or more persons forming
or joining together with the intention of committing any offense prescribed
under the act.


96
PLANTING OF EVIDENCE the willful act by any person of maliciously and
surreptitiously inserting, placing, adding or attaching directly or indirectly,
through any overt or covert act, whatever quantity of any dangerous drug
and/or controlled precursor and essential chemical in the person, house,
effects, or in the immediate vicinity of an innocent individual for the purpose
of implicating, incriminating or imputing the commission of any violation of
this Act.

P D E A Philippine Drug Enforcement Unit

Importation of prohibited/regulated drugs.

PENALTY : Life to death & fine of 500,000 to 10 million regardless of the
Quantity and purity involved
MAXIMUM PENALTY :
1) Use of diplomatic Passport
2) Financier

Sale, administration, delivery, distribution and transaction of
prohibited/regulated drugs.

- NOT BAILABLE

PENALTY : Life to death & fine of 500,000 to 10 million regardless of the
Quantity and purity involved ( includes BROKER )
Qualifying Circumstances
1) if the victim of the offense is a minor or should a prohibited/regulated
drug involve in any offense under this section be the proximate cause of the
death of a victim thereof, the maximum penalty herein shall be imposed.
2) Financier
3) Sale made within 100m from school

Maintenance of a den, dive, or resort for prohibited/regulated drug
users.
** Property escheated in favor of the government
Qualifying Circumstance where a prohibited/regulated drug is
administered, delivered, or sold to a minor who is allowed to use the same in
such place, or should a prohibited drug be the proximate cause of the death
of the person using the same in such den, dive or resort, the maximum of the
penalty shall be imposed.

Manufacture of prohibited/regulated drugs.

Possession of prohibited/regulated drugs.
PENALTY :

a. Life to death & fine of 500,000 to 10 million
10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy.
50 gms. Shabu
500 gms. Marijuana

b. Life Imprisonment and a fine of P400,000.00-P500,000.00
10-50 gms. Shabu


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c. 20 years to Life and a fine of 400,000.00-500,000.00
5-10 gms. Shabu

d. 12 20 years and a fine of 300,000.00-400,000.00
Less than 5 gms. Of any dangerous drugs

Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000

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 act 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.

Cultivation of plants which are sources of prohibited drugs.
Penalty - Life to death and a fine of P500,000.00 to P10 Million

a Note: The land/portions thereof and/or greenhouses in which any of the
said plants is cultivated or cultured shall be confiscated and escheated to
the State, unless the owner thereof can prove that he did not know of
such cultivation or culture despite the exercise of due diligence on his
part.

b Qualifying Circumstance
1. If the land involved is part of the public domain, the maximum of the
penalty herein provided shall be imposed.
2. Maximum penalty imposed on financier

Failure to keep records of prescription, sales, purchases,
acquisitions and/or deliveries of prohibited/regulated drugs

Persons liable:
Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler,
Importer, Distributor, Dealer, Retailer

Unlawful prescription of prohibited/regulated drugs
Penalty life to death and a fine of P500,000 to P10 Million

Unnecessary prescription of prohibited/regulated drugs
Penalty 12 to 20 years and fine of P100,000 to P500,000 plus revocation
of license


98
Persons Liable: Physician or dentist who shall prescribe any
prohibited/regulated drug for any person whose physical/physiological
condition does not require the use of thereof.

Confiscation and forfeiture of the proceeds or instruments of the
unlawful act, including the properties of the proceeds derived from the
illegal trafficking of
dangerous drugs.

Forfeited infavor of the government

After the conviction in the Regional Trial Court in the appropriate criminal case
filed, the Court shall immediately schedule a hearing for the confiscation and
forfeiture of all the proceeds of the offense and all the assets and properties of
the accused either owned or held by him or in the name of some other persons if
the same shall be found to be manifestly out of proportion of his/her income;
Provided, however, That if the forfeited property is a vehicle, the same shall be
auctioned off not later than five (5) days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or
income derived therefrom, which may be confiscated and forfeited, shall be
disposed, alienated or transferred and the same shall be in custodia legis and no
bond shall be admitted for the release of the same.

Custody and disposition of confiscated, seized and/or surrendered
dangerous drugs

PDEA in charge and custody for proper disposition

Procedure in Disposal
1. Apprehending team immediately after seizure shall make physical inventory
and photograph the seized drugs in the presence of the accused or his counsel, a
representative of the media and DOJ and any elected public official who shall
sign the copies of the inventory.

2. Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall
be submitted to the PDEA forensic laboratory for a qualitative and quantitative
examination.

3. Certification of the forensic examination results shall be issued within 24
hours.

4. After the filing of the criminal case, the proper court shall conduct and ocular
inspection within 72 hours of the confiscated, seized and/or surrendered
dangerous drugs.

5. After ocular inspection by the court, PDEA shall destroy or burn the
confiscated, seized and/or surrendered dangerous drugs within 24 hours in the
presence of the accused or his counsel, representative of the media and the
DOJ, civil society groups and any elected public officer.

6. PDEA shall issue a certification of such destruction and samples of the
dangerous drugs shall be submitted to the court.


99
Plea-Bargaining

Any person charged under any commission of this act regardless of the
imposable penalty shall not be allowed to avail of the provision on plea-
bargaining.

Probation Law
Any person convicted for drug trafficking regardless of the penalty imposed
cannot avail of the privilege granted by the probation law.

Qualifying Aggravating Circumstance
A positive finding for the use of dangerous drugs shall be a qualifying
aggravating circumstance in the commission of a crime by an offender and the
application of the penalty provided for in the RPC.

Possession of opium pipe, equipment, apparatus or any paraphernalia fit or
intended for smoking, consuming, administering, injecting, ingesting, or
otherwise using opium or any other prohibited drug, shall be prima facie
evidence that the possessor has smoked, consumed, administered to himself,
injected or used a prohibited drug.

Attempt and conspiracy to commit the following offenses:
a Importation of dangerous drugs

b Sale, administration, delivery, distribution and transportation of dangerous
drugs

c Maintenance of a den, dive or resort for prohibited drugs

d Manufacture of dangerous drugs

e Cultivation or culture of plants which are sources of prohibited drugs

Other persons liable:

a If the violation of the Act is committed by a partnership, corporation,
association or any judicial person, the partner, president, director, or
manager who consents to or knowingly tolerates such violation shall be
held criminally liable as co-principal.

b Partner, president, director, manager, officer or stockholder, who
knowingly authorizes, tolerates, or consents to the use of a vehicle,
vessel, or aircraft as an instrument in the importation, sale, delivery,
distribution or transportation of dangerous drugs, or to the use of their
equipment, machines or other instruments in the manufacture of any
dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other
instrument, is owned or under the control and supervision of the
partnership, corporation, association or judicial entity to which they are
affiliated.

Criminal liability of a public officer or employee for
misappropriation, misapplication or failure to account for the
confiscated, seized and/or surrendered dangerous drugs


100
Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to
absolute perpetual disqualification from any public office.

Any elective local or national official found to have benefited from the
proceeds of the trafficking of dangerous drugs or have received any financial
or material contributions from persons found guilty of drug trafficking
dangerous drugs, shall be removed from office and perpetually disqualified
from holding any elective or appointive positions in the government.

Planting of Evidence
Any person who is found guilty of planting any dangerous drug regardless of
the quantity and purity, shall suffer the penalty of death.

Drug Testing
1. Applicants for drivers license - mandatory

2. Applicants for firearms license and for permit to carry - mandatory

3. Students of secondary and tertiary schools random (school shall shoulder
expenses)

4. Officers and employees of private and public offices random (employer
shall shoulder expenses)
Any officer or employee found positive for use of dangerous drug shall be
dealt with administratively which shall be a ground for suspension or
termination subject to Art. 282 of the Labor Code and pertinent provisions of
the Civil Service Law.

5. Officers and members of the military, police and other law enforcement
agencies annual mandatory

6. All persons charged before the prosecutors office with a criminal offense
having an impossible penalty of imprisonment of not less than six (6) years
and one (1) day shall have to undergo a mandatory drug test

7. All candidates for public office whether appointed or elected both in the
national or local government shall undergo a mandatory drug test.

Issuance of False or fraudulent drug test results (whether willfully or
through gross negligence)

Penalty 6 to 12 years and fine P100,000.00 to P500,000.00
Additional penalty revocation of license to practice and closure of the drug
testing center

II. For the purpose of enforcing the provisions of this Act, all school heads,
supervisors and teachers shall be deemed to be persons in authority and,
as such, are vested with the power to apprehend, arrest, or cause the
apprehension or arrest of any person who shall violate any of the said
provision.

a. NOTE: They shall be considered as persons in authority if they are in
the school or within its immediate vicinity, or beyond such immediate


101
vicinity if they are in attendance in any school or class function in their
official capacity as school heads, supervisors or teachers.

b. Any teacher or school employee who discovers or finds that any
person in the school or within its immediate vicinity is violating this Act
shall have the duty to report the violation to the school head or
supervisor who shall, in turn, report the matter to the proper
authorities. Failure to report in either case shall, after hearing,
constitute sufficient cause for disciplinary action.

III. Rules regarding rehabilitation of drug dependents

Voluntary submission
a. Voluntary submission of a drug dependent to confinement, treatment and
rehabilitation by the drug dependent himself or through his parent,
guardian or relative within the 4
th
civil degree of consanguinity or affinity,
in a center and compliance with such conditions therefor as the
Dangerous Drugs Board may prescribe shall exempt from criminal liability
for possession or use of the prohibited/regulated drug. (Applicable only
to those liable for use of dangerous drugs and not to possession
and sale)

b. Should the drug dependent escape from the center, he may submit
himself for confinement within 1 week from the date of his escape, of his
parent guardian or relative may, within the same period surrender him for
confinement.

c. Upon application of the Board, the Court shall issue an order for
recommitment if the drug dependent does not resubmit himself for
confinement or if he is not surrendered for recommitment.

d. If, subsequent to such recommitment, he should escape again, he shall no
longer be exempt from criminal liability for the use or possession of any
dangerous drug.

e. If a person charged with an offense is found by the fiscal or by the Court
at any stage of the proceedings, to be a drug dependent, the fiscal or
court as the case may be, shall suspend all further proceedings and
transmit records of the case to the Board.

f. After his rehabilitation, he shall be prosecuted for such violation. In case
of conviction, the judgement shall, if the accused is certified by the
treatment and rehabilitation center to have maintained good behavior,
indicate that he shall be given full credit for the period he was confined in
the center.

NOTE: When the offense is use of dangerous drugs and the accused is
not a recidivist, the penalty thereof shall be deemed to have been served
in the center upon his release therefrom.

g. The period of prescription of the offense charged shall not run during the
time that the respondent/accused is under detention or confinement in a
center.


102
h. Requisites of suspension of sentence for first offense in a minor:

1. If accused is a minor (under 18 years of age at the time of the
commission of the offense but not more than 21 years of age when
the judgement should have been promulgated.

2. He has not been previously convicted of violating any provision of this
Act or of the RPC or placed on probation.

! Sentence shall be deferred and the accused shall be placed on
probation under the supervision of the Board.

! In case of violation of conditions of pardon, court shall pronounce
judgment of conviction and he shall serve sentence.

! If accused did not violate conditions of probation, case shall be
dismissed upon expiration of the designated period.

Compulsory submission
If a person charged with an offense where the imposable penalty is
imprisonment of not
more than six (6) years and one (1) day, and is found by the prosecutor or by
the court, at any stage of the proceedings, to be a drug dependent, the
prosecutor of the court as the case may be, shall suspend all further proceedings
and transmit copies of the record of the case to the Board.

Jurisdiction Over Dangerous Drug Cases

Section 90. Jurisdiction The Supreme Court shall designate special courts
from among the existing Regional Trial Court in each judicial region to exclusively
try and hear cases involving violations of this Act. The number of court
designated in each judicial region shall be based on population and the number
of cases pending in their respective jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving
violations of this Act.

The preliminary investigation of cases filed under this Act shall be terminated
within a period of thirty (30) days from the date of their filing.

When the preliminary investigation is conducted by a public prosecutor and a
probable cause is established, the corresponding information shall be filed in
court within 24 hours from the termination of the investigation. If the preliminary
investigation is conducted by a judge and a probable cause is found to exist, the
corresponding information shall be filed by the proper prosecutor within 48 hours
from the receipt of the records of the case.

Section 91. Responsibility and Liability of Law Enforcement Agencies
and Other Government Officials and Employees Testifying as
Prosecution Witnesses in Dangerous Drugs Cases Any member of law
enforcement agencies or any other government official and employees who, after
due notice, fails or refuses intentionally or negligently, to appear as a witness for
the prosecution in any proceedings, involving violations of this Act, without any
valid reason, shall be punished with imprisonment of not less than twelve (12)


103
years and one (1) day to 20 years and a fine of not less than P500,000.00, in
addition to the administrative liability he/she may be meted out by his/her
immediate superior and/or appropriate body.

The immediate superior of a member of the law enforcement agency or any
other government employee mentioned in the preceding paragraph shall be
penalized with imprisonment of not less than two (2) months and one (1) day
but not more than six (6) years and a fine of not less than P10,000.00 but not
more than P50,000 and in addition, perpetual absolute disqualification from
public office if despite due notice to them and to the witness concerned, the
former does not exert reasonable effort to present the latter to the court.

The member of the law enforcement agency or any other government employee
mentioned in the preceding paragraphs shall not be transferred or re-assigned to
any other territorial jurisdiction during the pendency of the case in court.
However, the concerned member of the law enforcement agency or government
employee may be transferred or re-assigned for compelling reasons; Provided,
That his/her immediate superior shall notify the court where the case is pending
of the order of transfer or re-assign, within 24 hours from its approval; Provided
further, That his/her immediate superior shall be penalized with imprisonment of
not less than two (2) months and one (1) day but not less than six (6) years and
a fine of not less than P10,000.00 but not more than P50,000.00 and in addition,
perpetual absolute disqualification from public office, should he/she fail to notify
the court of such order to transfer or re-assign.

Prosecution and punishment under this Section shall be without prejudice to any
liability for violation of any existing law.

Section 92. Delay and Bungling in the Prosecution of Drug Cases. - Any
government officer or employee tasked with the prosecution of drug-related
cases under this Act, who, through patent laxity, inexcusable neglect,
unreasonable delay or deliberately causes the unsuccessful prosecution and/or
dismissal ranging from 12 years and 1 day to 20 years without prejudice to
his/her prosecution under the pertinent provisions of the Revised Penal Code.

a Buy Bust Operation no law or rule to require policemen to adopt a
uniform way of identifying BUY MONEY (P v. Abedes)

b Absence of ultraviolet powder is not fatal in the prosecution

c Transportation/importation of MJ immaterial whether there may or may
not be a distinction for the MJ

d Distinguish Entrapment and Instigation:

1. If prosecution can prove the crime without presenting the informer or
asset not necessary because their testimonies are merely
corroborative. Poseur buyer it depends on whether the prosecution
can prove the crime without their testimonies (P v. Rosalinda
Ramos)

2. Under the RA, special aggravating circumstance if a crime has been
committed while the accused was high on drugs (P v. Anthony
Belgar)


104

3. Delivery or Sale of Prohibited Drugs the accused must be aware that
what he is selling or delivering was prohibited drug. But the moment
the fact of sale or delivery is proved by prosecution, the burden to
prove that the accused is not aware that drugs are prohibited falls on
the defense (P v. Aranda)

4. P v. Angelito Manalo burden of proving the authority to possess
shabu is a matter of defense

5. P v. Hilario Moscaling court may take judicial notice of the word
shabu

6. Criminal liabilities of a policeman who sold the drugs confiscated from
a pusher: violation of RA 9165 and malversation under RPC.

e Planting evidence to implicate another

f Buy Bust Operation form of entrapment (P v. Alberto) not
necessary to have prior police surveillance (P v. Carlos Franca)

g Possession constructive or actual not necessary to adduce the
marked money as evidence (P v. Romeo Macara)

h Separate crimes sale/possession of MJ found in his possession after
he was frisked but he cant be convicted for possession of MJ that he sold

i If victim is minor or drug is proximate cause of death max penalty is
imposed

1. First offense of a minor suspension of sentence

CONDITIONS:
! under 18 at time of commission but not more than 21 at time when
judgment was promulgated

! found guilty of possession or use of prohibited or regulated drugs

! not been previously convicted of violating any provision of this Act
or the RPC

! not been placed on probation

! defer sentence, place on probation for 6 months to 1 year

! violation of probation pronounce sentence convict and serve
sentence

! no violation discharge him and dismiss the proceeding

! if minor is drug dependent commit to a center for treatment and
rehabilitation


105

TITLE SIX
CRIMES AGAINST PUBLIC MORALS

Crimes against public morals

Gambling (Art. 195);

Importation, sale and possession of lottery tickets or advertisements (Art. 196);

Betting in sport contests (Art. 197);

Illegal betting on horse races (Art. 198);

Illegal cockfighting (Art. 199);

Grave scandal (Art. 200);

Immoral doctrines, obscene publications and exhibitions (Art. 201); and

Vagrancy and prostitution (Art. 202).

Article 195. What Acts Are Punishable in Gambling

Acts punished

1. Taking part directly or indirectly in

a. any game of monte, jueteng, or any other form of lottery, policy,
banking, or percentage game, dog races, or any other game or
scheme the results of which depend wholly or chiefly upon chance
or hazard; or wherein wagers consisting of money, articles of value,
or representative of value are made; or

b. the exploitation or use of any other mechanical invention or
contrivance to determine by chance the loser or winner of money
or any object or representative of value;

2. Knowingly permitting any form of gambling to be carried on in any place
owned or controlled by the offender;

3. Being maintainer, conductor, or banker in a game of jueteng or similar
game;

4. Knowingly and without lawful purpose possessing lottery list, paper, or
other matter containing letters, figures, signs or symbol which pertain to
or are in any manner used in the game of jueteng or any similar game.


106

What is gambling?
It is a game or device or method, the result of which depends wholly or
chiefly upon chance or hazard. So, if the game depends wholly upon skill or
ability of the players, there is no gambling.

The manner of determining whether the game played is prohibited or not is
whether the result will depend wholly or chiefly upon chance or hazard.

Significantly, if the game has been identified and declared as a form of gambling
by express provision of law, there will be no need or requirement to go into the
methods upon how the game is played.

What is lottery?
It is a scheme for the distribution of prizes by chance among persons who
have paid, or agreed to pay, a valuable consideration for a chance to obtain a
prize. (US vs. Filart, et al., 30 Phil. 80)

Pinball machines or slot machines are considered gambling devices because the
result depends upon chance or hazard.

If the prizes do not come out of the funds or contributions of the participants,
there is no lottery. (Uy vs. Palomar, 27 SCRA 287)

Article 196.
IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR
ADVERTISEMENTS

Acts punished

1. Importing into the Philippines from any foreign place or port any
lottery ticket or advertisement; or

2. Selling or distributing the same in connivance with the importer;

3. Possessing, knowingly and with intent to use them, lottery tickets
or advertisements; or

4. Selling or distributing the same without connivance with the
importer of the same.

Note that possession of any lottery ticket or advertisement is prima facie
evidence of an intent to sell, distribute or use the same in the Philippines.

Article 197.
BETTING IN SPORT CONTESTS

This article has been repealed by Presidential Decree No. 483 (Betting,
Game-fixing or Point-shaving and Machinations in Sport Contests):

PENALIZING BETTING, GAME-FIXING OR POINT-SHAVING AND


107
MACHINATIONS IN SPORTS CONTESTS
PD 483

Acts Punishable:
a. Betting: Betting money or any object or article of value of representative
value upon the result of any game, races and other sports contests.

b. Game-fixing: any arrangement, combination, scheme or agreement by
which the result of any game, races, or sports contests shall be predicated
and/or known other than on the basis of the honest playing skill or ability
of the players or participants.

c. Point-shaving: any such arrangement combination, scheme or
agreement by which the skill or ability of any player or participant in a
fame, races, or sports contests to make points of scores shall be limited
deliberately in order to influence the result thereof in favor of one or other
team, player or participant.

d. Game Machination: any other fraudulent, deceitful, unfair or dishonest
means, method, manner or practice employed for the purpose of
influencing the result of any game, races or sports contest.
Article 198.
ILLEGAL BETTING ON HORSE RACE

Acts punished

Betting on horse races during periods not allowed by law;

Maintaining or employing a totalizer or other device or scheme for betting on
races or realizing profit therefrom during the periods not allowed by law.

When horse races not allowed:

July 4 (Republic Act No. 137);

December 30 (Republic Act No. 229);

Any registration or voting days (Republic Act No. 180, Revised Election Code);
and

Holy Thursday and Good Friday (Republic Act No. 946).

Article 199.
ILLEGAL COCKFIGHTING

This article has been modified or repealed by Presidential Decree No. 449
(The Cockfighting Law of 1974):

COCKFIGHTING LAW OF 1974
PD 449


108
I. Scope This law shall govern the establishment, operation, maintenance
and ownership of cockpits.

II. Rules:

A. Only Filipino citizens not otherwise inhibited by existing laws shall be
allowed to own, manage and operated cockpits.

B. Only one cockpit shall be allowed in each city or municipality with a
population of 100,000 or less.

C. Cockpits shall be constructed and operated within the appropriate
areas as prescribed in the Zoning Law or ordinance.

D. When allowed:

1. Cockfighting shall be allowed only in licensed cockpits during
Sundays and legal holidays and during local fiestas for not more
than 3 days; or

2. During provincial, city or municipal, agricultural, commercial or
industrial fair, carnival or exposition for a similar period of 3 days
upon resolution of the province, city or municipality where such
fair, carnival or exposition is to be held, subject to the approval of
the Chief of Constabulary or his authorized representative.

Limitations:
a) No cockfighting on the occasion of such fair, carnival or exposition
shall be allowed within the month of the local fiesta or for more
than 2 occasions a year in the same city of municipality.

b) No cockfighting shall be held on December 30, June 12,November
30, Holy Thursday, Good Friday, Election Day and during
registration days for such election/referendum.

3. If the purpose is for the entertainment of foreign dignitaries or for
tourists, or for returning balikbayans, or for the support of national
fund-raising campaigns for charitable purposes as may be
authorized by the Office of the President upon resolution of a
provincial board, city or municipal council, in licensed cockpits or in
playgrounds or parks.

Limitations: This privilege shall be extended for only one time, for
a period not exceeding 3 days, within a year to a province, city or
municipality.

E. No gambling of any kind shall be permitted on the premises of the
cockpit or place of cockfighting during cockfights.

F. City or municipal mayors are authorized to issue licenses for the
operation and maintenance of cockpits.


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Presidential Decree No. 1602 (Simplifying and Providing Stiffer
Penalties for Violations of Philippine Gambling Laws)

Section 1. Violations and Penalties. -- The penalty of prision mayor in its
medium degree or a fine ranging from Five Hundred Pesos to Two Thousand
Pesos and in case of recidivism the penalty of prision correccional in its medium
degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos
shall be imposed upon:

(a) Any person other than those referred to in the succeeding
subsection who in any manner, shall directly or indirectly take part in any game
of cockfighting, jueteng, bookies (jai- alai or horse racing to include game fixing)
and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine,
pusoy or Russian Poker, monte, baccarat and other card games, palk que,
domino, mahjong, high and low, slot machines, roulette, pinball and other
mechanical inventories or devices, dog racing, boat racing, car raising and other
races, basketball, volleyball, boxing, seven-eleven dice games and the like and
other contests to include game fixing, point shaving and other machinations
banking or percentage game, or any other game or scheme, whether upon
chance or skill, which do not have a franchise from the national government,
wherein wagers consisting of money, articles of value of representative of value
are made;

(b) Any person who shall knowingly permit any form of gambling
referred to in the preceding subdivision to be carried on in inhabited or
uninhabited places or any building, vessel or other means of transportation
owned or controlled by him. If the place where gambling is carried on has a
reputation of a gambling place or that prohibited gambling is frequently carried
on therein or the place is a public or government building or barangay hall, the
culprit shall be punished by the penalty provided for in its maximum period and a
fine of Six Thousand Pesos.

The penalty of prision correccional in its maximum degree and a fine of
Six Thousand Pesos shall be imposed upon the maintainer, conductor of the
above gambling schemes.

The penalty of prision mayor in its medium degree and temporary
absolute disqualification and a fine of Six Thousand Pesos shall be imposed if the
maintainer, conductor or banker is a government official, or if a player,
promoter, referee, umpire, judge or coach in cases of game-fixing, point-shaving
and other game machination.

The penalty of prision correccional in its medium degree and a fine
ranging from Five Hundred pesos to Two Thousand Pesos shall be imposed upon
any person who shall knowingly and without lawful purpose in any hour of any
day shall have in his possession any lottery list, paper, or other matter containing
letter, figures, signs or symbols which pertain to or in any manner used in the
game of jueteng, jai-alai or horse racing bookies and similar game or lottery
which has taken place or about to take place.

Section 2. Barangay Official. Any barangay official in whose
jurisdiction such gambling house is found and which house has the reputation of
a gambling place shall suffer the penalty of prision correccional in its medium


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period and a fine ranging from Five Hundred to Two Thousand Pesos and
temporary absolute disqualifications.

While the acts under the Revised Penal Code are still punished under the new
law, yet the concept of gambling under it has been changed by the new
gambling law.

Before, the Revised Penal Code considered the skill of the player in classifying
whether a game is gambling or not. But under the new gambling law, the skill of
the players is immaterial.

Any game is considered gambling where there are bets or wagers placed with
the hope to win a prize therefrom.

Under this law, even sports contents like boxing, would be gambling insofar
as those who are betting therein are concerned. Under the old penal code, if
the skill of the player outweighs the chance or hazard involved in winning the
game, the game is not considered gambling but a sport. It was because of
this that betting in boxing and basketball games proliferated.

Unless authorized by a franchise, any form of gambling is illegal. So said the
court in the recent resolution of the case against the operation of jai-alai.

There are so-called parlor games which have been exempted from the operation
of the decree like when the games are played during a wake to keep the
mourners awake at night. Pursuant to a memorandum circular issued by the
Executive Branch, the offshoot of the exemption is the intentional prolonging of
the wake of the dead by gambling lords.

As a general rule, betting or wagering determines whether a game is gambling
or not. Exceptions: These are games which are expressly prohibited even
without bets. Monte, jueteng or any form of lottery; dog races; slot machines;
these are habit-forming and addictive to players, bringing about the pernicious
effects to the family and economic life of the players.

Mere possession of lottery tickets or lottery lists is a crime punished also as part
of gambling. However, it is necessary to make a distinction whether a ticket or
list refers to a past date or to a future date.

Illustration:

X was accused one night and found in his possession was a list of jueteng. If
the date therein refers to the past, X cannot be convicted of gambling or illegal
possession of lottery list without proving that such game was indeed played on
the date stated. Mere possession is not enough. If the date refers to the future,
X can be convicted by the mere possession with intent to use. This will already
bring about criminal liability and there is no need to prove that the game was
played on the date stated. If the possessor was caught, chances are he will not
go on with it anymore.

There are two criteria as to when the lottery is in fact becomes a gambling
game:


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1. If the public is made to pay not only for the merchandise that he is
buying, but also for the chance to win a prize out of the lottery, lottery
becomes a gambling game. Public is made to pay a higher price.

2. If the merchandise is not saleable because of its inferior quality, so that
the public actually does not buy them, but with the lottery the public
starts patronizing such merchandise. In effect, the public is paying for the
lottery and not for the merchandise, and therefore the lottery is a
gambling game. Public is not made to pay a higher price.

Illustrations:

(1) A certain supermarket wanted to increase its sales and sponsored a
lottery where valuable prices are offered at stake. To defray the cost of
the prices offered in the lottery, the management increased their prices of
the merchandise by 10 cents each. Whenever someone buys from that
supermarket, he pays 10 cents more for each merchandise and for his
purchase, he gets a coupon which is to be dropped at designated drop
boxes to be raffled on a certain period.

The increase of the price is to answer for the cost of the valuable prices
that will be covered at stake. The increase in the price is the
consideration for the chance to win in the lottery and that makes the
lottery a gambling game.

But if the increase in prices of the articles or commodities was not
general, but only on certain items and the increase in prices is not the
same, the fact that a lottery is sponsored does not appear to be tied up
with the increase in prices, therefore not illegal.

Also, in case of manufacturers, you have to determine whether the
increase in the price was due to the lottery or brought about by the
normal price increase. If the increase in price is brought about by the
normal price increase [economic factor] that even without the lottery the
price would be like that, there is no consideration in favor of the lottery
and the lottery would not amount to a gambling game.

If the increase in the price is due particularly to the lottery, then the
lottery is a gambling game. And the sponsors thereof may be prosecuted
for illegal gambling under Presidential Decree No. 1602.

(2) The merchandise is not really saleable because of its inferior quality. A
certain manufacturer, Bhey Company, manufacture cigarettes which is not
saleable because the same is irritating to the throat, sponsored a lottery
and a coupon is inserted in every pack of cigarette so that one who buys
it shall have a chance to participate. Due to the coupons, the public
started buying the cigarette. Although there was no price increase in the
cigarettes, the lottery can be considered a gambling game because the
buyers were really after the coupons not the low quality cigarettes.

If without the lottery or raffle, the public does not patronize the product
and starts to patronize them only after the lottery or raffle, in effect the
public is paying for the price not the product.


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Under this decree, a barangay captain who is responsible for the existence of
gambling dens in their own locality will be held liable and disqualified from office
if he fails to prosecute these gamblers. But this is not being implemented.

Gambling, of course, is legal when authorized by law.

Fund-raising campaigns are not gambling. They are for charitable purposes but
they have to obtain a permit from Department of Social Welfare and
Development. This includes concerts for causes, Christmas caroling, and the
like.

OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

Article 200
GRAVE SCANDAL

ELEMENTS:
a. Offender performs an act

b. Act is highly scandalous as offending against decency or good
customs

c. Highly scandalous conduct does not expressly fall within any
other article of the RPC

d. Committed in a public place or within the public knowledge or
view. (The public view is not required, it is sufficient if in public place.
For public knowledge, it may occur even in a private place; the
number of people who sees it is not material).

Grave scandal: consists of acts which are offensive to decency and good
customs. They are committed publicly and thus, give rise to public scandal to
persons who have accidentally witnessed the acts

The crime of grave scandal is a crime against public morals. Necessarily, the
offender must commit the crime in a public place or within the view of the public.

In grave scandal, the scandal involved refers to moral scandal offensive to
decency, although it does not disturb public peace. But such conduct or act must
be open to the public view.

In alarms and scandals, the scandal involved refers to disturbances of the
public tranquility and not to acts offensive to decency.

Decency: means properly observing the requirements of modesty, good
taste etc

Customs: refers to established usage, social conventions carried on by
tradition and enforced by social disapproval in case of violation

If the acts complained of are punishable under another provision of the RPC,
Art 200 is not applicable


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Any act which is notoriously offensive to decency may bring about criminal
liability for the crime of grave scandal provided such act does not constitute
some other crime under the Revised Penal Code. Grave scandal is a crime of last
resort.

The essence of grave scandal is publicity and that the acts committed are not
only contrary to morals and good customs but must likewise be of such
character as to cause public scandal to those witnessing it.

Distinction should be made as to the place where the offensive act was
committed, whether in the public place or in a private place:

(1) In public place, the criminal liability arises irrespective of whether the
immoral act is open to the public view. In short public view is not
required.

(2) When act offensive to decency is done in a private place, public view or
public knowledge is required.

Public view does not require numerous persons. Even if there was only one
person who witnessed the offensive act for as long as the third person was not
an intruder, grave scandal is committed provided the act does not fall under any
other crime in the Revised Penal Code.

Illustrations:

(1) A man and a woman enters a movie house which is a public place and
then goes to the darkest part of the balcony and while there the man
started performing acts of lasciviousness on the woman.

If it is against the will of the woman, the crime would be acts of
lasciviousness. But if there is mutuality, this constitutes grave scandal.
Public view is not necessary so long as it is performed in a public place.

(2) A man and a woman went to Luneta and slept there. They covered
themselves their blanket and made the grass their conjugal bed.

This is grave scandal.

(3) In a certain apartment, a lady tenant had the habit of undressing in her
room without shutting the blinds. She does this every night at about eight
in the evening. So that at this hour of the night, you can expect people
outside gathered in front of her window looking at her silhouette. She
was charged of grave scandal. Her defense was that she was doing it in
her own house.

It is no defense that she is doing it in her private home. It is still open to
the public view.

(4) In a particular building in Makati which stands right next to the house of a
young lady who goes sunbathing in her poolside. Every morning several
men in the upper floors would stick their heads out to get a full view of
said lady while in her two-piece swimsuit. The lady was then charged


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with grave scandal. Her defense was that it is her own private pool and it
is those men looking down at her who are malicious.

This is an act which even though done in a private place is nonetheless
open to public view.

Article 201
IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS:

Persons liable:
a. Those who publicly expound or proclaim doctrines that are
contrary to public morals

b. Authors of obscene literature, published with their knowledge
in any form

c. Editors publishing such obscene literature

d. Owners or operators of establishments selling obscene
literature

e. Those who exhibit indecent or immoral plays, scenes, acts or
shows ion theaters, fairs, cinemas or any other place

f. Those who sell, distribute, or exhibit prints, engraving,
sculptures or literature which are offensive to morals

Morals: implies conformity to generally accepted standards of goodness or
rightness in conduct or character

Test of obscenity: whether the matter has a tendency to deprave or
corrupt the minds of those who are open to immoral influences. A matter can
also be considered obscene if it shocks the ordinary and common sense of
men as indecency.

The test is objective. It is more on the effect upon the viewer and not alone on
the conduct of the performer.

If the material has the tendency to deprave and corrupt the mind of the viewer
then the same is obscene and where such obscenity is made publicly, criminal
liability arises.

The law is not concerned with the moral of one person. As long as the
pornographic matter or exhibition is made privately, there is no crime committed
under the Revised Penal Code because what is protected is the morality of the
public in general.

In committing this crime, there must be publicity. It means the act or acts done
must come to the knowledge of third persons.

However, Art 201 enumerates what are considered as obscene
literature or immoral or indecent plays, scenes or acts:
a. those w/c glorify criminals or condone crimes


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b. those w/c serve no other purpose but to satisfy the market for violence,
lust or pornography

c. those w/c offend against any race or religion

d. those w/c tend to abet the traffic in and the use of prohibited drugs

e. those that are contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts

Mere nudity in paintings and pictures is not obscene

Pictures w/ a slight degree of obscenity having no artistic value and intended
for commercial purposes fall within this article

Publicity is an essential element

Sexual indulgence is not in itself immoral if done within the bounds of privacy
and performed normally. The moment the parties carry their private rights and
privileges to public view, they expose themselves to public scrutiny.

Article 202
VAGRANTS AND PROSTITUTES:

Who are considered vagrants:

a. Those who have no apparent means of subsistence and who
have the physical ability to work yet neglect to apply
themselves to some useful calling

b. Persons found loitering around public and semi-public places
without visible means of support

c. Persons tramping or wandering around the country or the
streets with no visible means of support

d. Idle or dissolute persons lodging in houses of ill-fame

e. Ruffians or pimps and those who habitually associate with
prostitutes (may include even the rich)

f. Persons found loitering in inhabited or uninhabited places
belonging to others, without any lawful or justifiable reason
provided the act does not fall within any other article of the
RPC

If fenced and with prohibition of
entry
Trespass to dwelling

If fenced and entered to hunt/fish Attempted theft


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If not fenced and with no prohibition
of entry
Vagrancy

Who are considered prostitutes - refer to women who habitually indulge
in sexual intercourse or lascivious conduct for money or profit (if a man
indulges in the same conduct: vagrancy)

In law the mere indulging in lascivious conduct habitually because of money or
gain would amount to prostitution, even if there is no sexual intercourse.
Virginity is not a defense. Habituality is the controlling factor; it has to be more
than one time.

There cannot be prostitution by conspiracy. One who conspires with a woman in
the prostitution business like pimps, taxi drivers or solicitors of clients are guilty
of the crime under Article 341 for white slavery.
TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS

Crimes committed by public officers

1. Knowingly rendering unjust judgment (Art. 204);

2. Judgment rendered through negligence (Art. 205);

3. Unjust interlocutory order (Art. 206);

4. Malicious delay in the administration of justice (Art. 207);

5. Prosecution of offenses; negligence and tolerance (Art. 208);

6. Betrayal of trust by an attorney or solicitor Revelation of secrets (Art.
209);

7. Direct bribery (Art. 210);

8. Indirect bribery (Art. 211);

9. Qualified bribery (Art. 211-A);

10. Corruption of public officials (Art. 212);

11. Frauds against the public treasury and similar offenses (Art. 213);

12. Other frauds (Art. 214);

13. Prohibited transactions (Art. 215);

14. Possession of prohibited interest by a public officer (Art. 216);

15. Malversation of public funds or property Presumption of malversation
(Art. 217)

16. Failure of accountable officer to render accounts (Art. 218);


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17. Failure of a responsible public officer to render accounts before leaving
the country (Art. 219);

18. Illegal use of public funds or property (Art. 220);

19. Failure to make delivery of public funds or property (Art. 221);

20. Conniving with or consenting to evasion (Art. 223);

21. Evasion through negligence (Art. 224);

22. Escape of prisoner under the custody of a person not a public officer (Art.
225);

23. Removal, concealment or destruction of documents (Art. 226);

24. Officer breaking seal (Art. 227);

25. Opening of closed documents (Art. 228);

26. Revelation of secrets by an officer (Art. 229);

27. Public officer revealing secrets of private individual (Art. 230);

28. Open disobedience (Art. 231);

29. Disobedience to order of superior officer when said order was suspended
by inferior officer (Art. 232);

30. Refusal of assistance (Art. 233);

31. Refusal to discharge elective office (Art. 234);

32. Maltreatment of prisoners (Art. 235);

33. Anticipation of duties of a public office (Art. 236);

34. Prolonging performance of duties and powers (Art. 237);

35. Abandonment of office or position (Art. 238);

36. Usurpation of legislative powers (Art. 239);

37. Usurpation of executive functions (Art. 240);

38. Usurpation of judicial functions (Art. 241);

39. Disobeying request for disqualification (Art. 242);

40. Orders or requests by executive officers to any judicial authority (Art.
243);

41. Unlawful appointments (Art. 244); and


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42. Abuses against chastity (Art. 245).

The designation of the title is misleading. Crimes under this title can be
committed by public officers or a non-public officer, when the latter become a
conspirator with a public officer, or an accomplice, or accessory to the crime.
The public officer has to be the principal.

In some cases, it can even be committed by a private citizen alone such as in
Article 275 (infidelity in the custody of a prisoner where the offender is not a
public officer) or in Article 222 (malversation).

Article 203
WHO ARE PUBLIC OFFICERS:
a. Takes part in the performance of public functions in the
Government, or

b. Performs public duties as an employee, agent or subordinate
official in the govt or any of its branches

Notes:
a. Public officer must derive his authority from:
1. direct provision of law
2. popular election
3.appointment by competent authority

In defining the term public officers, the law makes the reference to the manner
by which he is appointed to public office. He thus becomes a public officer
because of his appointment by competent authority or because he is elected to
public office.

b. Public officers: embraces every public servant from the lowest to the
highest rank

Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term
public officer is broader and more comprehensive because it includes all persons
whether an official or an employee, temporary or not, classified or not,
contractual or otherwise. Any person who receives compensation for services
rendered is a public officer.

c. A government laborer is not a public officer. However, temporary
performance by a laborer of public functions makes him a public officer

Crimes committed by public officers are nothing but corruption in public service.

Breach of oath of office partakes of three forms:

d. Misfeasance: means improper performance of an act which might be
properly be performed

e. Malfeasance: means performance of an act which ought not to be
done


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f. Nonfeasance: means omission of an act which ought to be done

Malfeasance Doing of an act which a public officer should not have done

Misfeasance Improper doing of an act which a person might lawfully do

Nonfeasance Failure of an agent to perform his undertaking for the principal

Article 204:
KNOWINGLY RENDERING AN UNJUST JUDGMENT

ELEMENTS:
a. Offender is a judge

b. Renders a judgment in the case submitted to him for
judgment

c. Judgment is unjust

d. Knowledge that the decision is unjust

Notes:
a. Judgment: is a final consideration and determination by a court of
competent jurisdiction of the issues submitted to it in an action or
proceeding

The law requires that the judgment must be written in the official language,
personally and directly prepared by the judge, and signed by him. It must
contain a clear and distinct statement of facts proved or admitted by the
defendant and upon which the judgment is based.

b. Unjust judgment: one which is contrary to law, or not supported by
the evidence, or both

c. An unjust judgment may result from:
1. error (with bad faith)
2. ill-will or revenge
3. bribery

d. There must be evidence that the decision rendered is unjust. It is not
presumed

To be liable for the above crime, not only must the judgment be proved to be
unjust .it must likewise be established to have been knowingly rendered. There
must be a conscious and deliberate intent to do an injustice. This usually occurs
when the judge entertains hatred, envy, revenge, or greed against one of the
parties.

e. Abuse of discretion or mere error of judgment cannot likewise serve as
basis for rendering an unjust judgment in the absence of proof or even
an allegation of bad faith (motive or improper consideration).


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Article 205
JUDGMENT RENDERED THROUGH NEGLIGENCE

ELEMENTS:
a. Offender is a judge

b. Renders a judgment in a case submitted to him for decision

c. Judgment is manifestly unjust

d. Due to inexcusable negligence or ignorance

Manifestly unjust judgment: one that is so contrary to law that even a
person having meager knowledge of the law cannot doubt the injustice

The unjust judgment is merely the result of inexcusable negligence or ignorance
of the law. The ignorance may refer to substantive or procedural law. There
must be an apparent and notorious manifestation of lack of logic and false
interpretation of the law. (Cortes vs. Catral, 279 SCRA 1)

Article 206
UNJUST INTERLOCUTORY ORDER

ELEMENTS:
a. That the offender is a judge.

b. That he performs any of the following acts:
1. knowingly renders unjust interlocutory order or decree, or

2. renders a manifestly unjust interlocutory order or decree
through inexcusable negligence or ignorance.

Interlocutory order: one issued by the court deciding a collateral or
incidental matter. It is not a final determination of the issues of the action or
proceeding

The crime of knowingly rendering an unjust judgment, or knowingly issuing an
unjust interlocutory order, may be committed only by a judge of a trial court and
never of an appellate court. The reason for this is that in appellate court, not
only one magistrate renders or issues the interlocutory order. An appellate court
functions as a division and the resolutions thereof are handed down only after
deliberations among the members of a division so that it cannot be said that
there is malice or inexcusable negligence or ignorance in the rendering of a
judgment or order that is supposedly unjust as held by the Supreme Court in one
administrative case.

Article 207
MALICIOUS DELAY IN THE ADMINISTRATION OR JUSTICE

ELEMENTS:


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b. That there is a proceeding in his court.

c. That he delays the administration of justice.

d. That the delay is malicious, that is, the delay is caused by the
judge with deliberate intent to inflict damage on either party
in the case.

Mere delay without malice is not punishable

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

These have been interpreted by the Supreme Court to refer only to judges of the
trial court.

The Constitution provides that cases submitted for decision before the Supreme
Court must be resolved within two years. Before the Court of Appeals, such
cases must be resolved within 1 year; and before the Regional Trial Court and
Metropolitan Trial Court, such cases must be decided within a period of three
months or ninety days.

Article 208
PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

Acts Punished

1. Maliciously refraining from instituting prosecution against violators of the
law;

2. Maliciously tolerating the commission of offenses.

ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF
OFFENSES:
a. That the offender is a public officer or officer of the law who
has a duty to cause the prosecution of, or to prosecute
offenses.

b. That there is dereliction of the duties of his office, that is,
knowing the commission of the crime, he does not cause (a)
the prosecution of the criminal (People vs. Rosales, G.R. no.
42648) or (b) knowing that a crime is about to be committed
he tolerates its commission (if gift/promise is a consideration for
his conduct: direct bribery)

c. That the offender acts with malice and deliberate intent to
favor the violator of the law.

PREVARICACION: negligence and tolerance in the prosecution of an
offense


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A public officer engaged in the prosecution of offenders shall maliciously tolerate
the commission of crimes or refrain from prosecuting offenders or violators of
the law.

This crime can only be committed by a public officer whose official duty is to
prosecute offenders, that is, state prosecutors. Hence, those officers who are
not duty bound to perform these obligations cannot commit this crime in the
strict sense.

There must be a duty on the part of the public officer to prosecute or move
for the prosecution of the offender. Note however, that a fiscal is under no
compulsion to file an information based upon a complaint if he is not
convinced that the evidence before him does not warrant filing an action in
court

When a policeman tolerates the commission of a crime or otherwise refrains
from apprehending the offender, such peace officer cannot be prosecuted for
this crime but they can be prosecuted as:

(1) An accessory to the crime committed by the principal in accordance with
Article 19, paragraph 3; or

(2) He may become a fence if the crime committed is robbery or theft, in
which case he violates the Anti-Fencing Law; or

(3) He may be held liable for violating the Anti-Graft and Corrupt Practices
Act.

Illustration:

The offender was caught for white slavery. The policeman allowed the offender
to go free for some consideration. The policeman does not violate Article 208
but he becomes an accessory to the crime of white slavery.

But in the crime of theft or robbery, where the policeman shared in the loot and
allowed the offender to go free, he becomes a fence. Therefore, he is
considered an offender under the Anti-Fencing Law.

However, in distant provinces or municipalities where there are no municipal
attorneys, the local chief of police is the prosecuting officer. If he is the one who
tolerates the violations of laws or otherwise allows offenders to escape, he can
be prosecuted under this article.

This is also true in the case of a barangay chairman. They are supposed to
prosecute violators of laws within their jurisdiction. If they do not do so, they
can be prosecuted for this crime.

The crime must be proved first before an officer can be convicted of
dereliction of duty

A public officer who harbors, conceals, or assists in the escape of an
offender, when it is his duty to prosecute him is liable as principal in the
crime of dereliction of duty in the prosecution of offenses. He is not an
accessory


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Article not applicable to revenue officers

Relative to this crime under Article 208, consider the crime of qualified bribery.
Among the amendments made by Republic Act No. 7659 on the Revised Penal
Code is a new provision which reads as follows:

Article. 211-A. Qualified Bribery If any public officer is
entrusted with law enforcement and he refrains from arresting or
prosecuting an offender who has committed a crime punishable by
Reclusion Perpetua and/or death in consideration of any offer,
promise, gift, or present, he shall suffer the penalty for the offense
which was not prosecuted.

If it is the public officer who asks or demands such gift or
present, he shall suffer the penalty of death.

Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift
or present has a consideration on the part of the public officer, that is refraining
from arresting or prosecuting the offender in consideration for such offer,
promise, gift or present. In a way, this new provision modifies Article 210 of the
Revised Penal Code on direct bribery.

However, the crime of qualified bribery may be committed only by public officers
entrusted with enforcement whose official duties authorize then to arrest or
prosecute offenders. Apparently, they are peace officers and public prosecutors
since the nonfeasance refers to arresting or prosecuting. But this crime arises
only when the offender whom such public officer refrains from arresting or
prosecuting, has committed a crime punishable by reclusion perpetua and/or
death. If the crime were punishable by a lower penalty, then such nonfeasance
by the public officer would amount to direct bribery, not qualified bribery.

If the crime was qualified bribery, the dereliction of the duty punished under
Article 208 of the Revised Penal Code should be absorbed because said article
punishes the public officer who maliciously refrains from instituting prosecution
for the punishment of violators of the law or shall tolerate the commission of
offenses. The dereliction of duty referred to is necessarily included in the crime
of qualified bribery.

On the other hand, if the crime was direct bribery under Article 210 of the
Revised Penal Code, the public officer involved should be prosecuted also for the
dereliction of duty, which is a crime under Article 208 of the Revised Penal Code,
because the latter is not absorbed by the crime of direct bribery. This is because
in direct bribery, where the public officer agreed to perform an act constituting a
crime in connection with the performance of his official duties, Article 210
expressly provides that the liabilty thereunder shall be in addition to the penalty
corresponding to the crime agreed upon, if the crime shall have been committed.

Illustration:

A fiscal, for a sum of money, refrains from prosecuting a person charged before
him. If the penalty for the crime involved is reclusion perpetua, the fiscal


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commits qualified bribery. If the crime is punishable by a penalty lower than
reclusion perpetua, the crime is direct bribery.

In the latter situation, three crimes are committed: direct bribery and dereliction
of duty on the part of the fiscal; and corruption of a public officer by the giver.

Article 209
BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR
(NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE
OFFICERS OF THE COURT)

ACTS PUNISHED:
a. Causing damage to client (prejudice is essential) either
1. by any malicious breach of professional duty, or

2. by inexcusable negligence or ignorance.

b. Revealing any of the secrets of his client learned by him in his
professional capacity (damage not necessary)

c. Undertaking the defense of the opposing party of the 1
st
client
and/or having received confidential information from the
latter and without the latters consent (damage not necessary)

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

Under the rules on evidence, communications made with prospective clients to a
lawyer with a view to engaging his professional services are already privileged
even though the client-lawyer relationship did not eventually materialize because
the client cannot afford the fee being asked by the lawyer. The lawyer and his
secretary or clerk cannot be examined thereon.

That this communication with a prospective client is considered privileged,
implies that the same is confidential. Therefore, if the lawyer would reveal the
same or otherwise accept a case from the adverse party, he would already be
violating Article 209. Mere malicious breach without damage is not violative of
Article 209; at most he will be liable administratively as a lawyer, e.g.,
suspension or disbarment under the Code of Professional Responsibility.

Illustration:

B, who is involved in the crime of seduction wanted A, an attorney at law, to
handle his case. A received confidential information from B. However, B cannot
pay the professional fee of A. C, the offended party, came to A also and the
same was accepted.

A did not commit the crime under Article 209, although the lawyers act may be
considered unethical. The client-lawyer relationship between A and B was not
yet established. Therefore, there is no trust to violate because B has not yet
actually engaged the services of the lawyer A. A is not bound to B. However, if
A would reveal the confidential matter learned by him from B, then Article 209 is
violated because it is enough that such confidential matters were communicated


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to him in his professional capacity, or it was made to him with a view to
engaging his professional services.

Here, matters that are considered confidential must have been said to the lawyer
with the view of engaging his services. Otherwise, the communication shall not
be considered privileged and no trust is violated.

Illustration:

A went to B, a lawyer/notary public, to have a document notarized. A narrated
to B the detail of the criminal case. If B will disclose what was narrated to him
there is no betrayal of trust since B is acting as a notary public and not as a
counsel. The lawyer must have learned the confidential matter in his
professional capacity.

Several acts which would make a lawyer criminally liable:

(1) Maliciously causing damage to his client through a breach of his
professional duty. The breach of professional duty must be malicious. If
it is just incidental, it would not give rise to criminal liability, although it
may be the subject of administrative discipline;

(2) Through gross ignorance, causing damage to the client;

(3) Inexcusable negligence;

(4) Revelation of secrets learned in his professional capacity;

(5) Undertaking the defense of the opposite party in a case without the
consent of the first client whose defense has already been undertaken.

Note that only numbers 1, 2 and 3 must approximate malice.

A lawyer who had already undertaken the case of a client cannot later on shift to
the opposing party. This cannot be done.

Under the circumstances, it is necessary that the confidential matters or
information was confided to the lawyer in the latters professional capacity.

It is not the duty of the lawyer to give advice on the commission of a future
crime. It is, therefore, not privileged in character. The lawyer is not bound by
the mandate of privilege communication if he reports such commission of a
future crime. It is only confidential information relating to crimes already
committed that are covered by the crime of betrayal of trust if the lawyer should
undertake the case of opposing party or otherwise divulge confidential
information of a client.

Under the law on evidence on privileged communication, it is not only the lawyer
who is protected by the matter of privilege but also the office staff like the
secretary.

The nominal liability under this article may be constituted either from breach of
professional duties in the handling of the case or it may arise out of the
confidential relation between the lawyer and the client.


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Breach of professional duty

Tardiness in the prosecution of the case for which reason the case was dismissed
for being non-prosecuted; or tardiness on the part of the defense counsel
leading to declaration of default and adverse judgment.

Professional duties Lawyer must appear on time. But the client must have
suffered damage due to the breach of professional duty. Otherwise, the lawyer
cannot be held liable.

If the prosecutor was tardy and the case was dismissed as non-prosecuted, but
he filed a motion for reconsideration which was granted, and the case was
continued, the lawyer is not liable, because the client did not suffer damage.

If lawyer was neglectful in filing an answer, and his client declared in default,
and there was an adverse judgment, the client suffered damages. The lawyer is
liable.

Breach of confidential relation

Revealing information obtained or taking advantage thereof by accepting the
engagement with the adverse party. There is no need to prove that the client
suffered damages. The mere breach of confidential relation is punishable.

In a conjugal case, if the lawyer disclosed the confidential information to other
people, he would be criminally liable even though the client did not suffer any
damage.

The client who was suing his wife disclosed that he also committed acts of
unfaithfulness. The lawyer talked about this to a friend. He is, thus, liable.

Article 210
DIRECT BRIBERY

ELEMENTS:
a. That the offender be a public officer within the scope of Art
203

b. That the offender accepts an offer or promise or receives a gift
or present by himself or through another

c. That such offer or promise be accepted or gift/present
received by the public officer (mere agreement consummates the
crime)

1. with a view to committing some crime (delivery of
consideration is not necessary) or

2. in consideration of an execution of an act which does not
constitute a crime, but the act must be unjust (delivery of
consideration is necessary), or


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3. to refrain from doing something which is his official duty to
do

d. That the act which the offender agrees to perform or which he
executes be connected with the performance of his official
duties

Bribery refers to the act of the receiver and the act of the giver is corruption of
public official.

For purposes of this article, temporary performance of public functions is
sufficient to constitute a person a public officer.

A private person may commit this crime only in the case in which custody of
prisoners is entrusted to him

Applicable also to assessors, arbitrators, appraisal and claim commissioners,
experts or any other person performing public duties

Cannot be frustrated, only attempted or consummated.

Direct bribery may be committed only in the attempted and consummated stages
because, in frustrated felony, the offender must have performed all the acts of
execution which would produce the felony as a consequence. In direct bribery, it
is possible only if the corruptor concurs with the offender. Once there is
concurrence, the direct bribery is already consummated. In short, the offender
could not have performed all the acts of execution to produce the felony without
consummating the same.

Actually, you cannot have a giver unless there is one who is willing to receive
and there cannot be a receiver unless there is one willing to give. So this crime
requires two to commit. It cannot be said, therefore, that one has performed all
the acts of execution which would produce the felony as a consequence but for
reasons independent of the will, the crime was not committed.

It is now settled, therefore, that the crime of bribery and corruption of public
officials cannot be committed in the frustrated stage because this requires two to
commit and that means a meeting of the minds.

Illustrations:

(1) If the public official accepted the corrupt consideration and turned it over
to his superior as evidence of the corruption, the offense is attempted
corruption only and not frustrated. The official did not agree to be
corrupted.

If the public officer did not report the same to his superior and actually
accepted it, he allowed himself to be corrupted. The corruptor becomes
liable for consummated corruption of public official. The public officer also
becomes equally liable for consummated bribery.

(2) If a public official demanded something from a taxpayer who pretended to
agree and use marked money with the knowledge of the police, the crime
of the public official is attempted bribery. The reason is that because the


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giver has no intention to corrupt her and therefore, he could not perform
all the acts of execution.

Be sure that what is involved is a crime of bribery, not extortion. If it
were extortion, the crime is not bribery, but robbery. The one who
yielded to the demand does not commit corruption of a public officer
because it was involuntary.

Bribery exists when the gift is:
a. voluntarily offered by a private person

b. solicited by the public officer and voluntarily delivered by the private
person

c. solicited by the public officer but the private person delivers it out of fear
of the consequences should the public officer perform his functions (here
the crime by giver is not corruption of public officials due to
involuntariness)

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

The gift must have a value or capable of pecuniary estimation. It could be in
the form of money, property or services

If the act required of the public officer amounts to a crime and he commits it,
he shall be liable for the penalty corresponding to the crime in addition to the
penalty for bribery

In direct bribery, consider whether the official act, which the public officer
agreed to do, is a crime or not.

If it will amount to a crime, it is not necessary that the corruptor should
deliver the consideration or the doing of the act. The moment there is a meeting
of the minds, even without the delivery of the consideration, even without the
public officer performing the act amounting to a crime, bribery is already
committed on the part of the public officer. Corruption is already committed on
the part of the supposed giver. The reason is that the agreement is a conspiracy
involving the duty of a public officer. The mere agreement is a felony already.

If the public officer commits the act which constitutes the crime, he, as well as
the corruptor shall be liable also for that other crime.

Illustrations:

(1) If the corruptor offers a consideration to a custodian of a public record to
remove certain files, the mere agreement, without delivery of the
consideration, brings about the crime of direct bribery and corruption of
public official.

If the records were actually removed, both the public officer and the
corruptor will in addition to the two felonies above, will also be liable for


129
the crime committed, which is infidelity in the custody of the public
records for which they shall be liable as principals; one as principal by
inducement, the other as principal by direct participation.

(2) A party litigant approached the courts stenographer and proposed the
idea of altering the transcript of stenographic notes. The court
stenographer agreed and he demanded P 2,000.00.

Unknown to them, there were law enforcers who already had a tip that
the court stenographer had been doing this before. So they were waiting
for the chance to entrap him. They were apprehended and they said they
have not done anything yet.

Under Article 210, the mere agreement to commit the act, which amounts
to a crime, is already bribery. That stenographer becomes liable already
for consummated crime of bribery and the party who agreed to give that
money is already liable for consummated corruption, even though not a
single centavo is delivered yet and even though the stenographer had not
yet made the alterations.

If he changed the transcript, another crime is committed: falsification.

The same criterion will apply with respect to a public officer who agrees to
refrain from performing his official duties. If the refraining would give rise to a
crime, such as refraining to prosecute an offender, the mere agreement to do so
will consummate the bribery and the corruption, even if no money was delivered
to him. If the refraining is not a crime, it would only amount to bribery if the
consideration be delivered to him.

If it is not a crime, the consideration must be delivered by the corruptor before
a public officer can be prosecuted for bribery. Mere agreement, is not enough to
constitute the crime because the act to be done in the first place is legitimate or
in the performance of the official duties of the public official.

Unless the public officer receives the consideration for doing his official duty,
there is no bribery. It is necessary that there must be delivery of monetary
consideration. This is so because in the second situation, the public officer
actually performed what he is supposed to perform. It is just that he would not
perform what he is required by law to perform without an added consideration
from the public which gives rise to the crime.

The idea of the law is that he is being paid salary for being there. He is not
supposed to demand additional compensation from the public before performing
his public service. The prohibition will apply only when the money is delivered to
him, or if he performs what he is supposed to perform in anticipation of being
paid the money.

Here, the bribery will only arise when there is already the acceptance of the
consideration because the act to be done is not a crime. So, without the
acceptance, the crime is not committed.

The third type of bribery and prevaricacion (art 208) are similar offenses,
both consisting of omissions to do an act required to be performed. In direct


130
bribery however, a gift or promise is given in consideration of the omission.
This is not necessary in prevaricacion

Distinction between direct bribery and indirect bribery

Bribery is direct when a public officer is called upon to perform or refrain from
performing an official act in exchange for the gift, present or consideration given
to him.

If he simply accepts a gift or present given to him by reason of his public
position, the crime is indirect bribery. Bear in mind that the gift is given "by
reason of his office", not "in consideration" thereof. So never use the term
consideration. The public officer in Indirect bribery is not to perform any
official act.

Note however that what may begin as an indirect bribery may actually ripen into
direct bribery.

Illustration:

Without any understanding with the public officer, a taxi operator gave an
expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar
of his valuable suiting material, he asked who the giver was. He found out that
he is a taxi operator. As far as the giver is concerned, he is giving this by reason
of the office or position of the public officer involved. It is just indirect bribery

If the BLT registrar calls up his subordinates and said to take care of the taxis of
the taxi operator so much so that the registration of the taxis is facilitated ahead
of the others, what originally would have been indirect bribery becomes direct
bribery.

Bribery (210) Robbery (294)
When the victim has committed a
crime and gives money/gift to
avoid arrest or prosecution.
When the victim did not commit a crime
and he is intimidated with arrest and/or
prosecution to deprive him of his personal
property.
Victim parts with his money or
property voluntarily.
Victim is deprived of his money or property
by force or intimidation.
Robbery should be distinguished from Bribery where a law enforcer, say a
policeman, extorts money from a person, employing intimidation and threatening
to arrest the latter if he will not come across with money may be guilty of
Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually
committed a crime, and the policeman demanded money so he will not be
arrested, the crime is Bribery. But if no crime has been committed and the
policeman is falsely charging him of having committed one, threatening to arrest
him if he will not come across with some consideration, the crime is Robbery.

Article 211
INDIRECT BRIBERY

ELEMENTS:
a. That the offender is a public officer.


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b. That he accepts gifts.

c. That the said gifts are offered to him by reason of his office.

The gift is given in anticipation of future favor from the public officer
Indirect bribery, the public officer receives or accepts gifts, money or anything of
value by reason of his office. If there is only a promise of a gift or money, no
crime is committed because of the language of the law which uses the phrase
shall accept gifts.

There must be clear intention on the part of the public officer to take the gift
offered and consider the property as his own for that moment. Mere physical
receipt unaccompanied by any other sign, circumstance or act to show such
acceptance is not sufficient to convict the officer

The Supreme Court has laid down the rule that for indirect bribery to be
committed, the public officer must have performed an act of appropriating of the
gift for himself, his family or employees. It is the act of appropriating that
signifies acceptance. Merely delivering the gift to the public officer does not
bring about the crime. Otherwise it would be very easy to remove a public
officer: just deliver a gift to him.

There is no attempted or frustrated indirect bribery

The principal distinction between direct and indirect bribery is that in the
former, the officer agrees to perform or refrain from doing an act in
consideration of the gift or promise. In the latter case, it is not necessary that
the officer do any act. It is sufficient that he accepts the gift offered by
reason of his office

Public officers receiving gifts and private persons giving gifts on any occasion,
including Christmas are liable under PD 46.

The criminal penalty or imprisonment is distinct from the administrative
penalty of suspension from the service

Article 211-A
QUALIFIED BRIBERY

ELEMENTS:
a. Public officer entrusted with law enforcement

b. Refrains from arresting/prosecuting offender for crime
punishable by reclusion perpetua and/or death
(if lower penalty than stated above, the crime is direct bribery)

c. In consideration of any offer, promise or gift
Note that the penalty is DEATH if the public officer is the one who asks or
demands such present.

He need not receive the gift or present because a mere offer or promise is
sufficient.


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Article 212
CORRUPTION OF PUBLIC OFFICIALS

ELEMENTS:
a. That the offender makes offers or promises or gives gifts or
present to a public officer.

b. That the offers or promises are made or the gifts or presents
given to a public officer, under circumstances that will make
the public officer liable for direct bribery or indirect bribery

The offender is the giver of the gift or the offeror of the promise. The act
may or may not be accomplished

Presidential Decree No. 46

Presidential Decree No. 46 prohibits giving and acceptance of gifts by a public
officer or to a public officer, even during anniversary, or when there is an
occasion like Christmas, New Year, or any gift-giving anniversary. The
Presidential Decree punishes both receiver and giver.

The prohibition giving and receiving gifts given by reason of official position,
regardless of whether or not the same is for past or future favors.

The giving of parties by reason of the promotion of a public official is considered
a crime even though it may call for a celebration. The giving of a party is not
limited to the public officer only but also to any member of his family.

Presidential Decree No. 749

The decree grants immunity from prosecution to a private person or public
officer who shall voluntarily give information and testify in a case of bribery or in
a case involving a violation of the Anti-graft and Corrupt Practices Act.

It provides immunity to the bribe-giver provided he does two things:

(1) He voluntarily discloses the transaction he had with the public officer
constituting direct or indirect bribery, or any other corrupt transaction;

(2) He must willingly testify against the public officer involved in the case to
be filed against the latter.

Before the bribe-giver may be dropped from the information, he has to be
charged first with the receiver. Before trial, prosecutor may move for dropping
bribe-giver from information and be granted immunity. But first, five conditions
have to be met:

(1) Information must refer to consummated bribery;

(2) Information is necessary for the proper conviction of the public officer
involved;


133

(3) That the information or testimony to be given is not yet in the possession
of the government or known to the government;

(4) That the information can be corroborated in its material points;

(5) That the informant has not been convicted previously for any crime
involving moral turpitude.

These conditions are analogous to the conditions under the State Witness Rule
under Criminal Procedure.

The immunity granted the bribe-giver is limited only to the illegal transaction
where the informant gave voluntarily the testimony. If there were other
transactions where the informant also participated, he is not immune from
prosecution. The immunity in one transaction does not extend to other
transactions.

The immunity attaches only if the information given turns out to be true and
correct. If the same is false, the public officer may even file criminal and civil
actions against the informant for perjury and the immunity under the decree will
not protect him.

Republic Act No. 7080 (Plunder)

Plunder is a crime defined and penalized under Republic Act No. 7080, which
became effective in 1991. This crime somehow modified certain crimes in the
Revised Penal Code insofar as the overt acts by which a public officer amasses,
acquires, or accumulates ill-gotten wealth are felonies under the Revised Penal
Code like bribery (Articles 210, 211, 211-A), fraud against the public treasury
[Article 213], other frauds (Article 214), malversation (Article 217), when the ill-
gotten wealth amounts to a total value of P50,000,000.00. The amount was
reduced from P75,000,000.00 by Republic Act No. 7659 and the penalty was
changed from life imprisonment to reclusion perpetua to death.

Short of the amount, plunder does not arise. Any amount less than
P50,000,000.00 is a violation of the Revised Penal Code or the Anti-Graft and
Corrupt Practices Act.

Under the law on plunder, the prescriptive period is 20 years commencing from
the time of the last overt act.

Plunder is committed through a combination or series of overt acts:

(1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project by reason of the office or position of the public officer;


134
(3) By illegal or fraudulent conveyance or disposition of asset belonging to the
national government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled corporations and
their subsidiaries;

(4) By obtaining, receiving, or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business or undertaking;

(5) By establishing agricultural, industrial, or commercial monopolies or other
combinations and/or implementations of decrees and orders intended to
benefit particular persons or special interests; or

(6) By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people, and the
Republic of the Philippines.

While the crime appears to be malum prohibitum, Republic Act No. 7080
provides that in the imposition of penalties, the degree of participation and the
attendance of mitigating and aggravating circumstances shall be considered by
the court.

ANTI-GRAFT AND CORRUPT PRACTICES ACT
RA 3019

Persons Liable:

a. Any public officer who shall perform any of the following acts:

1. Persuading, inducing or influencing another public officer to perform an
act constituting a violation of rules and regulations duly promulgated by
competent authority or an offense in connection with the official duties of
the latter, or allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.

2. Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit for himself or for any other person in connection
with any contract or transaction between the government and any other
party wherein the public officer in his official capacity has to intervene
under the law.

3. Directly, or indirectly requesting or receiving any gift, present, or other
pecuniary or material benefit, for himself or for another, from any person
for whom the public officer, in any manner of capacity, has secured or


135
obtained, or will secure or obtain, any Government permit or license, in
consideration for the held given or to be given.

4. Accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during the
pendency thereof or within one year after its termination.

5. Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage, or
preference in the discharge of his official, administrative or judicial
function through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses or permits
or other concessions.

6. Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending before
him for the purpose of obtaining directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage,
or for the purpose of favoring his own interest of giving undue advantage
in favor of or discriminating against any other interested party.

7. Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.

8. Directly or indirectly having financial or pecuniary interest in any business,
contract or transaction in connection with which he intervenes or take part
in his official capacity, or in which he is prohibited by the constitution or
by any law from having any interest.

9. Directly or indirectly becoming interested, for personal gain, or having a
material interest in any transaction or act requiring the approval of a
board, panel, or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or group.

10. Knowingly approving or granting any license, permit, privilege, or benefit
in favor of any person not qualified for or not legally entitled to such
license, permit, privilege, or advantage, or of a mere representative or
dummy of one who is not so qualified or entitled.

11. Divulging valuable information of a confidential character, acquired by his
office or by him on account of his official position to unauthorized
persons, or releasing such information in advance of its authorized release
date.

b. Any person having family or close personal relation with any public official
who shall capitalize or exploit or take advantage of such family or close
personal relation by directly or indirectly requesting or receiving any present,
gift, or material, or pecuniary advantage from any person having some
business, transaction, application, request, or contact with the government in
which such public official has to intervene (Sec. 4)


136
c. Any person who shall knowingly induce or cause any public official to commit
any of the offenses under (A). (Sec. 4)

d. Spouse or any relative, by consanguinity or affinity, within the 3
rd
civil
degree, of the president of the Philippines, the vice-president, the president
of the Senate, or speaker of the house of Representatives, who shall
intervene, directly or indirectly, in any business transaction, contract or
application with the govt (Sec. 5).

This prohibition shall not apply to:
1. Any person who, prior to the assumption of office of any of the above
officials to whom he is related, has been already dealing with the govt
along the same line of business;

2. Any transaction, contract or application already existing or pending at
the time of such assumption of public office;

3. Any application filed by him, the approval of which is not discretionary
on the part of the official(s) concerned but depends upon compliance
with requisites provided by law, or rules or regulations issued pursuant
to law;

4. Any act lawfully performed an official capacity or in the exercise of a
profession.

e. Any member of congress, during the term for which he has been
elected, who shall acquire or receive any personal pecuniary interest in
any specific business enterprise which shall be directly and particularly
favored or benefited by any law or resolution authored by him
previously approved or adopted by Congress during his term.

f. Any public officer who shall fail to file a true, detailed and sworn
statement of assets and liabilities within 30 days after assuming office
and thereafter on or before the 15
th
day of April following the close of
every calendar year, as well as upon the expiration of his term of
office, or upon his resignation or separation from office (Sec. 7).

III. Prima Facie Evidence of and Dismissal due to unexplained Wealth
(Sec. 8)

If a public official has been found to have acquired during his incumbency,
whether in his name or in the name of other persons, an amount of property
and/or money manifestly out of proportion to his salary and to his other
lawful income.

Properties in the name of the spouse and dependents of such public official
may be taken into consideration, when their acquisition through legitimate
means cannot be satisfactorily shown.

Bank deposits in the name of or manifestly excessive expenditures incurred
by the public official, his spouse or any of their dependents including but not
limited to activities in any club or association or any ostentatious display of
wealth including frequent travel abroad of a non-official character by any


137
public official when such activities entail expenses evidently out of proportion
to legitimate income.

III. Competent court: All prosecutions under this Act shall be within the
original jurisdiction of the
Sandiganbayan (Sec. 10).

In case none of the principal accused are occupying positions corresponding to
salary grade 27 or higher; PNP officers occupying the rank of superintendent or
higher of their equivalent, exclusive jurisdiction over the case shall be vested in
the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit
Trial Court as the case may be. The decision of the court in these cases shall be
appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction
over them.

IV. Prescription of offenses: all offenses punishable under this Act shall
prescribe in 15 years (Sec. 11).

V. Exceptions: Unsolicited gifts or presents of small or insignificant value
offered or given as a mere ordinary token of gratitude of friendship according to
local customs or usage, shall be excepted from the provisions of this act (Sec.
14).

Once the case is filed with the Sandiganbayan, by express provision of the law, it
becomes incumbent upon the court to place under preventive suspension the
public officer who stands accused before it. However, before the order of
suspension is issued, it is necessary that a pre-suspension hearing be held by the
court wherein the accused is afforded the opportunity to challenge the validity of
the information filed against him. Such right of the accused to challenge the
validity of the information covers (a) the right to challenge the sufficiency of the
recitals of the information vis--vis the essential elements of the offense as
defined by substantive law; (b) the right to challenge the validity of the criminal
proceedings leading to the filing of the information, i.e., that he has not been
afforded the right of due preliminary investigation, or that the acts for which he
stands charged do not constitute a violation of the provisions of R.A. No. 3019,
which would warrant his mandatory suspension from office under Section 13 of
this Act; and (c) the right to raise the issue that the information can be quashed
under any of the grounds provided in Section 2, Rule 117 of the Rules of Court
(People vs. Albano, 163 SCRA 511).

Once the information is found to be sufficient in form and substance, the court
must issue the suspension order as a matter of course and there are no ifs and
buts about it (Bayot vs. Sandiganbayan, et al., 128 SCRA 383).

Preventive suspension is resorted to in order to prevent the accused from using
his office to intimidate witnesses or frustrate his prosecution or continue
committing malfeasance in office because the presumption is that unless the
accused is suspended, he may frustrate his prosecution to commit further acts of
malfeasance or both (Bayot vs. Sandiganbayan, et al., supra).

When the administrative case against the officer or employee under preventive
suspension is not finally disposed of by the disciplining authority within the
period of ninety (90) days after the date of suspension of the respondent who is
not a presidential appointee, the respondent shall be automatically reinstated in


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the service: Provided, That when the delay in the disposition of the case is due
to the fault, negligence or petition of the respondent, the period of delay shall
not be counted in computing the period of suspension herein
provided.(Segovia vs. Sandiganbayan)

ORTEGA NOTES:

The mere act of a public officer demanding an amount from a taxpayer to whom
he is to render public service does not amount to bribery, but will amount to a
violation of the Anti-graft and Corrupt Practices Act.

Illustration:

A court secretary received P500 .00 from a litigant to set a motion for an early
hearing. This is direct bribery even if the act to be performed is within his official
duty so long as he received a consideration therefor.

If the secretary persuaded the judge to make a favorable resolution, even if the
judge did not do so, this constitutes a violation of Anti-Graft and Corrupt
Practices Act, Sub-Section A.

Under the Anti-Graft and Corrupt Practices Act, particularly Section 3, there are
several acts defined as corrupt practices. Some of them are mere repetitions of
the act already penalized under the Revised Penal Code, like prohibited
transactions under Article 215 and 216. In such a case, the act or omission
remains to be mala in se.

But there are acts penalized under the Anti-Graft and Corrupt Practices Act which
are not penalized under the Revised Penal Code. Those acts may be considered
as mala prohibita. Therefore, good faith is not a defense.

Illustration:
CATCH ALL PROVISION
Section 3 (e) of the Anti-Graft and Corrupt Practices Act causing undue injury
to the government or a private party by giving unwarranted benefit to the party
whom does not deserve the same.

In this case, good faith is not a defense because it is in the nature of a malum
prohibitum. Criminal intent on the part of the offender is not required. It is
enough that he performed the prohibited act voluntarily. Even though the
prohibited act may have benefited the government. The crime is still committed
because the law is not after the effect of the act as long as the act is prohibited.

Section 3 (g) of the Anti-Graft and Corrupt Practices Act where a public officer
entered into a contract for the government which is manifestly disadvantageous
to the government even if he did not profit from the transaction, a violation of
the Anti-Graft and Corrupt Practices Act is committed.

If a public officer, with his office and a private enterprise had a transaction and
he allows a relative or member of his family to accept employment in that
enterprise, good faith is not a defense because it is a malum prohibitum. It is
enough that that the act was performed.


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Where the public officer is a member of the board, panel or group who is to act
on an application of a contract and the act involved one of discretion, any public
officer who is a member of that board, panel or group, even though he voted
against the approval of the application, as long as he has an interest in that
business enterprise whose application is pending before that board, panel or
group, the public officer concerned shall be liable for violation of the Anti-Graft
and Corrupt Practices Act. His only course of action to avoid prosecution under
the Anti-graft and Corrupt Practices Act is to sell his interest in the enterprise
which has filed an application before that board, panel or group where he is a
member. Or otherwise, he should resign from his public position.

Illustration:

Sen. Dominador Aytono had an interest in the Iligan Steel Mills, which at that
time was being subject of an investigation by the Senate Committee of which he
was a chairman. He was threatened with prosecution under Republic Act No.
3019 so he was compelled to sell all his interest in that steel mill; there is no
defense. Because the law says so, even if he voted against it, he commits a
violation thereof.

These cases are filed with the Ombudsman and not with the regular prosecutors
office. Jurisdiction is exclusively with the Sandiganbayan. The accused public
officer must be suspended when the case is already filed with the
Sandiganbayan.

Under the Anti-Graft and Corrupt Practices Act, the public officer who is accused
should not be automatically suspended upon the filing of the information in
court. It is the court which will order the suspension of the public officer and not
the superior of that public officer. As long as the court has not ordered the
suspension of the public officer involved, the superior of that public officer is not
authorized to order the suspension simply because of the violation of the Anti-
Graft and Corrupt Practices Act. The court will not order the suspension of the
public officer without first passing upon the validity of the information filed in
court. Without a hearing, the suspension would be null and void for being
violative of due process.

Illustration:

A public officer was assigned to direct traffic in a very busy corner. While there,
he caught a thief in the act of lifting the wallet of a pedestrian. As he could not
leave his post, he summoned a civilian to deliver the thief to the precinct. The
civilian agreed so he left with the thief. When they were beyond the view of the
policeman, the civilian allowed the thief to go home. What would be the liability
of the public officer?

The liability of the traffic policeman would be merely administrative. The civilian
has no liability at all.
Firstly, the offender is not yet a prisoner so there is no accountability yet. The
term prisoner refers to one who is already booked and incarcerated no matter
how short the time may be.

The policeman could not be said as having assisted the escape of the offender
because as the problem says, he is assigned to direct traffic in a busy corner


140
street. So he cannot be considered as falling under the third 3rd paragraph of
Article 19 that would constitute his as an accessory.

The same is true with the civilian because the crime committed by the offender,
which is snatching or a kind of robbery or theft as the case may be, is not one of
those crimes mentioned under the third paragraph of Article 19 of the Revised
Penal Code.

Where the public officer is still incumbent, the prosecution shall be with the
Ombudsman.

Where the respondent is separated from service and the period has not yet
prescribed, the information shall be filed in any prosecutions office in the city
where the respondent resides. The prosecution shall file the case in the Regional
Trial Court unless the violation carries a penalty higher than prision correccional,
in which case the Sandiganbayan has jurisdiction.

The fact that the government benefited out of the prohibited act is no defense at
all, the violation being mala prohibita.

Section 3 (f) of the Anti-Graft and Corrupt Practices Act where the public
officer neglects or refuses to act on a matter pending before him for the purpose
of obtaining any pecuniary or material benefit or advantage in favor of or
discriminating against another interested party.

The law itself additionally requires that the accuseds dereliction, besides being
without justification, must be for the purpose of obtaining from any person
interested in the matter some pecuniary or material benefit or for the purpose of
favoring any interested party, or discriminating against another interested party.
This element is indispensable.

In other words, the neglect or refusal to act must motivated by gain or benefit,
or purposely to favor the other interested party as held in Coronado v. SB,
decided on August 18, 1993.

Republic Act No. 1379 (Forfeiture of Ill-gotten Wealth)

Correlate with RA 1379 -- properly under Remedial Law. This provides the
procedure for forfeiture of the ill-gotten wealth in violation of the Anti-Graft and
Corrupt Practices Act. The proceedings are civil and not criminal in nature.

Any taxpayer having knowledge that a public officer has amassed wealth out of
proportion to this legitimate income may file a complaint with the prosecutors
office of the place where the public officer resides or holds office. The prosecutor
conducts a preliminary investigation just like in a criminal case and he will
forward his findings to the office of the Solicitor General. The Solicitor General
will determine whether there is reasonable ground to believe that the respondent
has accumulated an unexplained wealth.

If the Solicitor General finds probable cause, he would file a petition requesting
the court to issue a writ commanding the respondent to show cause why the ill-
gotten wealth described in the petition should not be forfeited in favor of the
government. This is covered by the Rules on Civil Procedure. The respondent is
given 15 days to answer the petition. Thereafter trial would proceed. Judgment


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is rendered and appeal is just like in a civil case. Remember that this is not a
criminal proceeding. The basic difference is that the preliminary investigation is
conducted by the prosecutor.

FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

Article 213
FRAUDS AGAINST PUBLIC TREASURY

ELEMENTS: (par. 1)
a. That the offender be a public officer.

b. That he should have taken advantage of his office, that is, he
intervened in the transaction in his official capacity.

c. That he entered into an agreement with any interested party
or speculator or made use of any other scheme with regard to
(a) furnishing supplies (b) the making of contracts, or (c) the
adjustment or settlement of account relating to a public
property or funds.

d. That the accused had intent to defraud the government.

Notes:
a. The public officer must act in his official capacity

b. The felony is consummated by merely entering into an agreement with
any interested party or speculator or by merely making use of any
scheme to defraud the Government

The essence of this crime is making the government pay for something not
received or making it pay more than what is due. It is also committed by
refunding more than the amount which should properly be refunded. This
occurs usually in cases where a public officer whose official duty is to procure
supplies for the government or enter into contract for government transactions,
connives with the said supplier with the intention to defraud the government.
Also when certain supplies for the government are purchased for the high price
but its quantity or quality is low.

Not all frauds will constitute this crime. There must be no fixed allocation or
amount on the matter acted upon by the public officer.

The allocation or outlay was made the basis of fraudulent quotations made by
the public officer involved.

For example, there was a need to put some additional lighting along a street and
no one knows how much it will cost. An officer was asked to canvass the cost
but he connived with the seller of light bulbs, pricing each light bulb at P550.00
instead of the actual price of P500.00. This is a case of fraud against public
treasury.


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If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the
public officer connived with the seller so that although allocation was made a
lesser number was asked to be delivered, or of an inferior quality, or
secondhand. In this case there is no fraud against the public treasury because
there is a fixed allocation. The fraud is in the implementation of procurement.
That would constitute the crime of other fraud in Article 214, which is in the
nature of swindling or estafa.

Be sure to determine whether fraud is against public treasury or one under
Article 214.

ILLEGAL EXACTIONS (par 2)

ELEMENTS:
a. The offender is a public officer entrusted with the collection of
taxes, licenses, fees and other imposts.

b. He is guilty of any of the following acts or omissions:

1. demanding, directly or indirectly the payment of sums
different from or larger than those authorized by law, or

2. failing voluntarily to issue a receipt, as provided by law, for
any sum of money collected by him officially, or

3. Collecting or receiving, directly or indirectly, by way of
payment or otherwise, things or objects of a nature
different from that provided by law.

Notes:

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

Not any public officer can commit this crime. Otherwise, it is estafa. Fixers
cannot commit this crime unless he conspires with the public officer authorized
to make the collection.

The essence of the crime is not misappropriation of any of the amounts but the
improper making of the collection which would prejudice the accounting of
collected amounts by the government.

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

On the first form of illegal exaction

In this form, mere demand will consummate the crime, even if the taxpayer shall
refuse to come across with the amount being demanded. That will not affect the
consummation of the crime.


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In the demand, it is not necessary that the amount being demanded is bigger
than what is payable to the government. The amount being demanded maybe
less than the amount due the government.

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

c. When there is deceit in demanding larger fees, the crime committed is
estafa

d. May be complexed with malversation

Note that this is often committed with malversation or estafa because when a
public officer shall demand an amount different from what the law provides, it
can be expected that such public officer will not turn over his collection to the
government.

Illustrations:

(1) A taxpayer goes to the local municipal treasurer to pay real estate taxes
on his land. Actually, what is due the government is P400.00 only but the
municipal treasurer demanded P500.00. By that demand alone, the crime
of illegal exaction is already committed even though the taxpayer does not
pay the P500.00.

(2) Suppose the taxpayer came across with P500.00. But the municipal
treasurer, thinking that he would abstract the P100.00, issued a receipt
for only P400.00. The taxpayer would naturally ask the municipal
treasurer why the receipt was only for P400.00. The treasurer answered
that the P100.00 is supposed to be for documentary stamps. The
taxpayer left.

He has a receipt for P400.00. The municipal treasurer turned over to the
government coffers P400.00 because that is due the government and
pocketed the P100.00.

The mere fact that there was a demand for an amount different from
what is due the government, the public officer already committed the
crime of illegal exaction.

On the P100.00 which the public officer pocketed, will it be malversation
or estafa?

In the example given, the public officer did not include in the official
receipt the P100.00 and, therefore, it did not become part of the public
funds. It remained to be private. It is the taxpayer who has been
defrauded of his P100.00 because he can never claim a refund from the
government for excess payment since the receipt issued to him was only
P400.00 which is due the government. As far as the P100.00 is
concerned, the crime committed is estafa.

(3) A taxpayer pays his taxes. What is due the government is P400.00 and
the public officer issues a receipt for P500.00 upon payment of the


144
taxpayer of said amount demanded by the public officer involved. But he
altered the duplicate to reflect only P400.00 and he extracted the
difference of P100.00.

In this case, the entire P500.00 was covered by an official receipt. That
act of covering the whole amount received from the taxpayer in an official
receipt will have the characteristics of becoming a part of the public funds.
The crimes committed, therefore, are the following:

(a) Illegal exaction for collecting more than he is authorized to
collect. The mere act of demanding is enough to constitute this
crime.

(b) Falsification because there was an alteration of official document
which is the duplicate of the official receipt to show an amount less
than the actual amount collected.

(c) Malversation because of his act of misappropriating the P100.00
excess which was covered by an official receipt already, even
though not payable to the government. The entire P500.00 was
covered by the receipt, therefore, the whole amount became public
funds. So when he appropriated the P100 for his own benefit, he
was not extracting private funds anymore but public funds.

Should the falsification be complexed with the malversation?

As far as the crime of illegal exaction is concerned, it will be the subject of
separate accusation because there, the mere demand regardless of
whether the taxpayer will pay or not, will already consummate the crime
of illegal exaction. It is the breach of trust by a public officer entrusted to
make the collection which is penalized under such article. The falsification
or alteration made on the duplicate can not be said as a means to commit
malversation. At most, the duplicate was altered in order to conceal the
malversation. So it cannot be complexed with the malversation.

It cannot also be said that the falsification is a necessary means to
commit the malversation because the public officer can misappropriate the
P100.00 without any falsification. All that he has to do is to get the
excess of P100.00 and misappropriate it. So the falsification is a separate
accusation.

However, illegal exaction may be complexed with malversation because
illegal exaction is a necessary means to be able to collect the P100.00
excess which was malversed.

In this crime, pay attention to whether the offender is the one charged
with the collection of the tax, license or impost subject of the
misappropriation. If he is not the one authorized by disposition to do the
collection, the crime of illegal exaction is not committed.

If it did not give rise to the crime of illegal exaction, the funds collected
may not have become part of the public funds. If it had not become part
of the public funds, or had not become impressed with being part of the


145
public funds, it cannot be the subject of malversation. It will give rise to
estafa or theft as the case may be.

(3) The Municipal Treasurer demanded P500.00 when only P400.00 was due.
He issued the receipt at P400.00 and explained to taxpayer that the P100
was for documentary stamps. The Municipal Treasurer placed the entire
P500.00 in the vault of the office. When he needed money, he took the
P100.00 and spent it.

The following crimes were committed:

(a) Illegal exaction for demanding a different amount;

(b) Estafa for deceiving the taxpayer; and

(c) Malversation for getting the P100.00 from the vault.

Although the excess P100.00 was not covered by the Official Receipt, it
was commingled with the other public funds in the vault; hence, it
became part of public funds and subsequent extraction thereof constitutes
malversation.

Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in
number 3, malversation is a distinct offense.

The issuance of the Official Receipt is the operative fact to convert the payment
into public funds. The payor may demand a refund by virtue of the Official
Receipt.

In cases where the payor decides to let the official to keep the change, if the
latter should pocket the excess, he shall be liable for malversation. The official
has no right but the government, under the principle of accretion, as the owner
of the bigger amount becomes the owner of the whole.

On the second form of illegal exaction

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

Illustration:

If a government cashier or officer to whom payment is made issued a receipt in
his own private form, which he calls provisional, even though he has no intention
of misappropriating the amount received by him, the mere fact that he issued a
receipt not in the form prescribed by law, the crime of illegal exaction is
committed. There must be voluntary failure to issue the Official Receipt.


146

On the third form of illegal exaction

Under the rules and regulations of the government, payment of checks not
belonging to the taxpayer, but that of checks of other persons, should not be
accepted to settle the obligation of that person.

Illustration:

A taxpayer pays his obligation with a check not his own but pertaining to
another. Because of that, the check bounced later on.

The crime committed is illegal exaction because the payment by check is not
allowed if the check does not pertain to the taxpayer himself, unless the check is
a managers check or a certified check, amended already as of 1990. (See the
case of Roman Catholic.)

Under Article 213, if any of these acts penalized as illegal exaction is committed
by those employed in the Bureau of Customs or Bureau of Internal Revenue, the
law that will apply to them will be the Revised Administrative Code or the Tariff
and Customs Code or National Revenue Code.

This crime does not require damage to the government.

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

These officers are authorized to make impositions and to enter into
compromises. Because of this discretion, their demanding or collecting different
from what is necessary is legal

Article 214
OTHER FRAUDS

ELEMENTS:

b. That he takes advantage of his official position.

c. That he commits any of the frauds or deceits enumerated in
art. 315 to 318. (estafa; swindling)

Note: RTC has jurisdiction over the offense because the principal penalty is
disqualification

Article 215
PROHIBITED TRANSACTIONS

ELEMENTS:
a. That the offender is an appointive public officer.


147
b. That he becomes interested, directly or indirectly, in any
transaction of exchange or speculation.

c. That the transaction takes place within the territory subject to
his jurisdiction.

d. That he becomes interested in the transaction during his
incumbency.

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

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

Article 216
POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER

Who are liable:
a. Public officer in any contract or business in which it is his official
duty to intervene.

b. Experts, arbitrators and private accountants in any contract or
transaction connected with the estate or property in the approval,
distribution or adjudication of which they had acted.

c. Guardians and executors with respect to property belonging to
their wards or the estate.
Notes:
a. Actual fraud is not necessary.

b. Act is punished because of the possibility that fraud may be committed
or that the officer may place his own interest above that of the
Government or party which he represents

The mere violation of the prohibition is already punished even if no actual fraud
occurs because of the possibility that fraud may be committed or that the officer
may place his own interest above that of the government or party he represents.
(U. S. vs. Udarbe, 28 Phil. 383)

Section 14, Article VI of the Constitution

No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral Tribunals, or
quasi-judicial and other administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with, or in any franchise or
special privilege granted by the Government or any subdivision, agency or


148
instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary, during his term of office. He shall not intervene in
any matter before any office of the government for his pecuniary benefit or
where he may be called upon to act on account of his office.

Section 13, Article VII of the Constitution

The President, Vice-President, the Members of the Cabinet and their
deputies or assistant shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

Section 2, Article IX-A of the Constitution

No member of a Constitutional Commission shall, during his tenure, hold
any office or employment. Neither shall he engage in the practice of any
profession or in the active management or control of any business which in any
way may be affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise or
privilege granted by the government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their
subsidiaries.

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Article 217
MALVERSATION OF PUBLIC FUNDS OR PROPERTY

ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC
FUNDS OR PROPERTY :
a. That the offender be a public officer (or private person if
entrusted with public funds or connived with public officers)

b. That he had the custody or control of funds or property (if not
accountable for the funds, theft or qualified theft)

c. That those funds or property were public funds or property
(even if private funds if attached, seized, deposited or commingled
with public funds)

d. That he:
1. Appropriated the funds or property

2. Took or misappropriated them


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3. Consented or, through abandonment or negligence,
permitted any other person to take such public funds or
property. (it is not necessary that the offender profited thereby.
His being remiss in the duty of safekeeping public funds violates
the trust reposed)

Concept of Malversation

It consists in the misappropriation or conversion of public funds or property to
ones personal use or knowingly, or through abandonment or negligence allowing
other to use or appropriate the same. The offender is made liable because of the
nature of his duties to take care of the funds or property entrusted to him with
the diligence of a good father of a family. He is accountable by virtue of the
nature of his office to account for funds or properties that come to his
possession. If he is not accountable for the funds or properties and he
misappropriates the same, the crime will not be malversation but estafa under
Article 315.

Malversation is otherwise called embezzlement

This crime is predicated on the relationship of the offender to the property or
funds involved. The offender must be accountable for the property
misappropriated. If the fund or property, though public in character is the
responsibility of another officer, malversation is not committed unless there is
conspiracy.

In determining whether the offender is liable for malversation, it is the nature of
the duties of the public officer that controls. While the name of the office is
important, what is controlling is whether in performing his duties as a public
officer, he has to account or is required by the nature of the performance of a
duty, to render an account on the money or property that came into his
possession.

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

It can be committed either with malice or through negligence or imprudence

There is no crime of malversation through negligence. The crime is
malversation, plain and simple, whether committed through dolo or culpa. There
is no crime of malversation under Article 365 on criminal negligence because
in malversation under Article 217, the same penalty is imposed whether the
malversation results from negligence or was the product of deliberate act.

In determining whether the offender is a public officer, what is controlling is
the nature of his office and not the designation

The offender, to commit malversation, must be accountable for the funds or
property misappropriated by him. If he is not the one accountable but
somebody else, the crime committed is theft. It will be qualified theft if there is
abuse of confidence.


150
Accountable officer does not refer only to cashier, disbursing officers or property
custodian. Any public officer having custody of public funds or property for
which he is accountable can commit the crime of malversation if he would
misappropriate such fund or property or allow others to do so.

The funds or property must be received in an official capacity. Otherwise, the
crime committed is estafa

When private property is attached or seized by public authority and the public
officer accountable therefor misappropriates the same, malversation is
committed also.

Illustration:

If a sheriff levied the property of the defendants and absconded with it, he is not
liable of qualified theft but of malversation even though the property belonged to
a private person. The seizure of the property or fund impressed it with the
character of being part of the public funds it being in custodia legis. For as long
as the public officer is the one accountable for the fund or property that was
misappropriated, he can be liable for the crime of malversation. Absent such
relation, the crime could be theft, simple or qualified.

Estafa Malversation
It is usually committed by a private
individual
Committed by accountable public
officers
Funds or property of misappropriation
are privately owned.
The object is public fund or property.
The offender appropriates personally
the funds or property.
Personal appropriation is not
indispensable because allowing others
to commit the misappropriation is also
malversation.

When a public officer has official custody or the duty to collect or receive
funds due the government, or the obligation to account for them, his
misappropriation of the same constitutes malversation

Note that the moment any money is commingled with the public fund even if not
due the government, it becomes impressed with the characteristic of being part
of public funds. Once they are commingled, you do not know anymore which
belong to the government and which belong to the private persons. So that a
public vault or safe should not be used to hold any fund other that what is due to
the government.

In malversation thru negligence, the negligence of the accountable public
officer must be positively and clearly shown to be inexcusable, approximating
fraud or malice

Under jurisprudence, when the public officer leaves his post without locking his
drawer, there is negligence. Thus, he is liable for the loss.


151

The measure of negligence to be observed is the standard of care
commensurate with the occasion

When malversation is not committed through negligence, lack of criminal
intent or good faith is a defense

The failure of a public officer to have any duly forthcoming public funds or
property upon demand, by any authorized officer, shall be prima facie
evidence that he has put such missing funds or property to personal use.
However, if at the very moment when the shortage is discovered, the
accountable officer is notified, and he immediately pays the amount from his
pocket, the presumption does not arise

An accountable public officer may be convicted even if there is no direct
evidence of misappropriation and the only evidence is the shortage in his
account which he has not been able to explain satisfactorily. (Palma Gil vs.
People)

If a public officer reports the loss of money before a cash examination is
conducted and the cause of the loss as reported has a distinct ring of truth to it,
the legal presumption of prima facie evidence of guilt will not apply. In order to
support conviction, the prosecution must prove the actual misappropriation of
the missing funds.(Salvacion vs. The Honorable Sandiganbayan, G. R. No.
68233, July 11, 1986)

To rebut the presumption of guilt prima facie under Article 217, the accused
must raise the issue of accuracy, correctness and regularity in the conduct of
audit. If asked for a second audit before the filing of the information against him
and the same was denied, and during the trial, some disbursement vouchers
were introduced which were not considered in the first audit, the denial of the
request for a second audit is fatal to the cause of the prosecution because in the
meantime, the evidence introduced does not establish a fact beyond reasonable
doubt. Had the re-audit requested by the accused been accorded due course, the
remaining balance could have been satisfactorily accounted for. (Mahinay vs.
The Sandiganbayan. G. R. No. 61442, May 9, 1989)

Returning the embezzled funds is not exempting, it is only mitigating

Payment of the amount misappropriated or restitution of property
misappropriated does not erase criminal liability but only civil liability.

There is also no malversation when the accountable officer is obliged to go
out of his office and borrow the amount corresponding to the shortage and
later, the missing amount is found in an unaccustomed place

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

It is not necessary that the accountable public officer should actually
misappropriate the fund or property involved. It is enough that he has violated
the trust reposed on him in connection with the property.

Demand as well as damage to the government are not necessary elements


152

Note that damage on the part of the government is not considered an essential
element. It is enough that the proprietary rights of the government over the
funds have been disturbed through breach of trust.

The grant of loans through the vale system is a clear case of an accountable
officer consenting to the improper or unauthorized use of public funds by other
persons, which is punishable by law. To tolerate such a practice is to give a
license to every disbursing officer to conduct a lending operation with the use of
public funds. There is no law or regulation allowing accountable officers to
extend loans to anyone against the vales or chits given in exchange by the
borrowers. (Meneses vs. Sandiganbayan)

A private person may also commit malversation under the following
situations:

(1) Conspiracy with a public officer in committing malversation;

(2) When he has become an accomplice or accessory to a public officer who
commits malversation;

(3) When the private person is made the custodian in whatever capacity of
public funds or property, whether belonging to national or local
government, and he misappropriates the same;

(4) When he is constituted as the depositary or administrator of funds or
property seized or attached by public authority even though said funds or
property belong to a private individual.

Technical malversation is not included in the crime of malversation. In
malversation, the offender misappropriates public funds or property for his own
personal use, or allows any other person to take such funds or property for the
latters own personal use. In technical malversation, the public officer applies
the public funds or property under his administration to another public use
different from that for which the public fund was appropriated by law or
ordinance. Recourse: File the proper information.

Article 218
FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

ELEMENTS:
a. That the offender is a public officer, whether in the service or
separated therefrom.

b. That he must be an accountable officer for public funds
property.

c. That he is required by law or regulation to render accounts to
the commission on audit, or to a provincial auditor.

d. That he fails to do so for a period of two months after such
accounts should be rendered.
The public officers who are bound to render accounts are the following:


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1. cashiers
2. storekeepers
3. warehousemen and
4. those who by the nature of their position become custodian or public funds or
property.

Note: Demand and misappropriation are not necessary

It is sufficient that there is a law or regulation requiring him to render an
account. It is the failure to follow the requirement of the law that is made
punishable. It is not necessary that the offender prevent the situation of the
crime being committed because of the failure of the accountable officer to render
an account.

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

ELEMENTS:

b. That he must be an accountable officer for public funds or
property.

c. That he must have unlawfully left (or be on the point of
leaving) the Philippines without securing from the
Commission on Audit a certificate showing that his accounts
have been finally settled.

Who can commit this crime?
A responsible public officer, not necessarily an accountable one, who leaves the
country without first securing clearance from the Commission on Audit.

Note: The act of leaving the Philippines must be unauthorized or not
permitted by law

Mere leaving without securing clearance constitutes violation of the Revised
Penal Code. It is not necessary that they really misappropriated public funds.

Article 220
ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical
malversation)

ELEMENTS:

b. That there is public fund or property under his administration.

c. That such public fund or property has been appropriated by
law or ordinance (without this, it is simple malversation even if
applied to other public purpose).


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d. That he applies the same to a public use other than for which
such fund or property has been appropriated by law or
ordinance.

The term technical malversation is used because in this crime, the fund or
property involved is already appropriated or earmarked for a certain public
purpose.

The offender is entrusted with such fund or property only to administer or apply
the same to the public purpose for which it was appropriated by law or
ordinance. Instead of applying it to the public purpose to which the fund or
property was already appropriated by law, the public officer applied it to another
purpose.

To distinguish this article with Art 217, just remember that in illegal use of
public funds or property, the offender does not derive any personal gain, the
funds are merely devoted to some other public use

Absence of damage is only a mitigating circumstance

Since damage is not an element of malversation, even though the application
made proved to be more beneficial to public interest than the original purpose
for which the amount or property was appropriated by law, the public officer
involved is still liable for technical malversation.

If public funds were not yet appropriated by law or ordinance, and this was
applied to a public purpose by the custodian thereof, the crime is plain and
simple malversation, not technical malversation. If the funds had been
appropriated for a particular public purpose, but the same was applied to private
purpose, the crime committed is simple malversation only.

Illustration:

The office lacked bond papers. What the government cashier did was to send
the janitor, get some money from his collection, told the janitor to buy bond
paper so that the office will have something to use. The amount involved maybe
immaterial but the cashier commits malversation pure and simple.

This crime can also be committed by a private person.

Illustration:

A certain road is to be cemented. Bags of cement were already being unloaded
at the side. But then, rain began to fall so the supervisor of the road building
went to a certain house with a garage, asked the owner if he could possibly
deposit the bags of cement in his garage to prevent the same from being wet.
The owner of the house, Olive, agreed. So the bags of cement were transferred
to the garage of the private person. After the public officer had left, and the
workers had left because it is not possible to do the cementing, the owner of the
garage started using some of the cement in paving his own garage. The crime
of technical malversation is also committed.


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Note that when a private person is constituted as the custodian in whatever
capacity, of public funds or property, and he misappropriates the same, the
crime of malversation is also committed. See Article 222.

Illustration:

The payroll money for a government infrastructure project on the way to the site
of the project, the officers bringing the money were ambushed. They were all
wounded. One of them, however, was able to get away from the scene of the
ambush until he reached a certain house. He told the occupant of the house to
safeguard the amount because it is the payroll money of the government
laborers of a particular project. The occupant of the house accepted the money
for his own use. The crime is not theft but malversation as long as he knew that
what was entrusted in his custody is public fund or property.

Article 221
FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

ELEMENTS:
a. Offender has govt funds or property in his possession

b. He is under obligation to either:
1. make payment from such funds

2. to deliver property in his custody or administration when
ordered by competent authority

c. He maliciously fails or refuses to do so
Note: Penalty is based on value of funds/property to be delivered

Article 222
PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221

a. Private individual who, in any capacity, have charge of any
national, provincial or municipal funds, revenue, or property

b. Administrator or depositary of funds or property that has been
attached, seized or deposited by public authority, even if
owned by a private individual

Sheriffs and receivers fall under the term administrator

A judicial administrator in charge of settling the estate of the deceased is not
covered by the article

Here, the funds or property belong to private individuals, but they are considered
public funds or property if they come to the possession of the public officer
because of 1) a writ of attachment; or 2) if they are seized by virtue of a search
warrant. Or 3) if they are ordered deposited pending determination of ownership
in the administrative or judicial proceedings.


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Private individuals may also be liable for malversation if they act as conspirators
in the commission of the crime.

INFIDELITY OF PUBLIC OFFICERS

Article 223
CONNIVING WITH OR CONSENTING TO EVASION

ELEMENTS:
a. That the offender is a public officer (on duty).

b. That he is charged with the conveyance or custody of a
prisoner, either detention prisoner or prisoner by final
judgment.

c. That such prisoner escaped from his custody

d. That he was in connivance with the prisoner in the latters
escape

Detention prisoner: refers to a person in legal custody, arrested for and
charged with some crime or public offense

The release of a detention prisoner who could not be delivered to judicial
authorities within the time fixed by law is not infidelity in the custody of a
prisoner. Neither is mere leniency or laxity in the performance of duty
constitutive of infidelity

There is real and actual evasion of service of sentence when the custodian
permits the prisoner to obtain a relaxation of his imprisonment

A municipal mayor who utilized the prisoners services for domestic chores in his
house, including using him as a cook is liable for faithlessness in the custody of
prisoner (Art. 223) even though the convict may not have fled, in as much as the
prisoners leaving the prison was effected through him. (People vs.
Evangelista, C.A. 38 O.G. 158).

Article 224
EVASION THROUGH NEGLIGENCE

ELEMENTS:

b. That he is charged with the conveyance or custody of a
prisoner, either detention prisoner or prisoner by final
judgment.

c. That such prisoner escapes through his negligence.

d. Penalty based on nature of imprisonment


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The article punishes a definite laxity which amounts to deliberate non-
performance of a duty

Not every error is negligence under this article. To be liable, the negligence must
be notorious and apparent. The laxity must be definite and must seriously
suggest a deliberate non-performance of a duty.

The negligence which is punishable however is not such definite laxity at all but
that which amounts to deliberate non-performance of the jailer or the guard. So
that if a policemen on guard duty unlocked the door of the jail to let a detention
prisoner go out so he can clean the premises, but on the latters third trip to a
nearby faucet, he walked behind the police headquarters climbed over the wall
and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G.
580).

The fact that the public officer recaptured the prisoner who had escaped from
his custody does not afford complete exculpation

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

Article 225
ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A
PUBLIC OFFICER

ELEMENTS:
a. That the offender is a private person (note: must be on duty)

b. That the conveyance or custody of a prisoner or person under
arrest is confined to him.

c. That the prisoner or person under arrest escapes.

d. That the offender consents to the escape of the prisoner or
person under arrest, or that the escape takes place through
his negligence

Note: This article is not applicable if a private person made the arrest and he
consented to the escape of the person he arrested

The offender under this article is not the one who arrested the escaping
prisoner but one who agreed to have the custody or charge of the prisoner or
person under arrest.

ORTEGA NOTES:

The crime is infidelity in the custody of prisoners if the offender involved is the
custodian of the prisoner.


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If the offender who aided or consented to the prisoners escaping from
confinement, whether the prisoner is a convict or a detention prisoner, is not the
custodian, the crime is delivering prisoners from jail under Article156.

The crime of infidelity in the custody of prisoners can be committed only by the
custodian of the prisoner.

If the jail guard who allowed the prisoner to escape is already off-duty at that
time and he is no longer the custodian of the prisoner, the crime committed by
him is delivering prisoners from jail.

Note that you do not apply here the principle of conspiracy that the act of one is
the act of all. The party who is not the custodian who conspired with the
custodian in allowing the prisoner to escape does not commit infidelity in the
custody of the prisoner. He commits the crime of delivering prisoners from jail.

Question & Answer

If a private person approached the custodian of the prisoner and for a
certain consideration, told the custodian to leave the door of the cell unlocked for
the prisoner to escape. What crime had been committed?

It is not infidelity in the custody of prisoners because as far as the private
person is concerned, this crime is delivering prisoners from jail. The infidelity is
only committed by the custodian.

This crime can be committed also by a private person if the custody of the
prisoner has been confided to a private person.

Illustration:

A policeman escorted a prisoner to court. After the court hearing, this policeman
was shot at with a view to liberate the prisoner from his custody. The policeman
fought the attacker but he was fatally wounded. When he could no longer
control the prisoner, he went to a nearby house, talked to the head of the family
of that house and asked him if he could give the custody of the prisoner to him.
He said yes. After the prisoner was handcuffed in his hands, the policeman
expired. Thereafter, the head of the family of that private house asked the
prisoner if he could afford to give something so that he would allow him to go.
The prisoner said, Yes, if you would allow me to leave, you can come with me
and I will give the money to you. This private persons went with the prisoner
and when the money was given, he allowed him to go. What crime/s had been
committed?

Under Article 225, the crime can be committed by a private person to whom the
custody of a prisoner has been confided.

Where such private person, while performing a private function by virtue of a
provision of law, shall accept any consideration or gift for the non-performance
of a duty confided to him, Bribery is also committed. So the crime committed by
him is infidelity in the custody of prisoners and bribery.


159
If the crime is delivering prisoners from jail, bribery is just a means, under Article
156, that would call for the imposition of a heavier penalty, but not a separate
charge of bribery under Article 156.

But under Article 225 in infidelity, what is basically punished is the breach of
trust because the offender is the custodian. For that, the crime is infidelity. If
he violates the trust because of some consideration, bribery is also committed.

A higher degree of vigilance is required. Failure to do so will render the
custodian liable. The prevailing ruling is against laxity in the handling of
prisoners.

Illustration:

A prison guard accompanied the prisoner in the toilet. While answering the call
of nature, police officer waiting there, until the prisoner escaped. Police officer
was accused of infidelity.

There is no criminal liability because it does not constitute negligence.
Negligence contemplated here refers to deliberate abandonment of duty.
Note, however, that according to a recent Supreme Court ruling, failure to
accompany lady prisoner in the comfort room is a case of negligence and
therefore the custodian is liable for infidelity in the custody of prisoner.

Prison guard should not go to any other place not officially called for. This is a
case of infidelity in the custody of prisoner through negligence under Article 224.

INFIDELITY IN CUSTODY OF DOCUMENTS

Article 226
REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

ELEMENTS:
a. That the offender be a public officer.

b. That he abstracts, destroys or conceals a document or papers.

c. That the said document or paper should have been entrusted
to such public officer by reason of his office.

d. That damage, whether serious or not, to a third party or to the
public interest should have been caused.

The act of obstruction, destruction or concealment must cause damage to a third
party or to the public interest. Damage to a third party is usually pecuniary; but
damage to public interest may consist in mere alarm to the public or the
alienation of its confidence on any branch of the government service.

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

Books, periodicals, pamphlets etc are not documents


160
Papers would include checks, promissory notes and paper money

Removal of a document presupposes unlawful appropriation of the official
document. Destruction means to render the document useless. Its nature to
prove the existence of a fact is lost such that it cannot anymore prove the
probability or improbability of a fact in issue. Concealment on the other hand
means to make it appear that the document is not available.

A post office official who retained the mail without forwarding the letters to
their destination is guilty of infidelity in the custody of papers

Removal of a document or paper must be for an illicit purpose.

If the removal of the document is for a lawful purpose and that is, to secure the
same from imminent danger or loss, there is no crime committed under the law,
(Kataniag vs. People, 74 Phil. 45).

There is illicit purpose when the intention of the offender is to:
a. tamper with it
b. to profit by it
c. to commit any act constituting a breech of trust in the official thereof

The act of removal, destruction or concealment should be coupled with criminal
intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750,
Jan. 30, 1984).

Removal is consummated upon removal or secreting away of the document
from its usual place. It is immaterial whether or not the illicit purpose of the
offender has been accomplished

Removal of public records by the custodian does not require that the record be
brought out of the premises where it is kept. It is enough that the record be
removed from the place where it should be and transferred to another place
where it is not supposed to be kept. If damage is caused to the public service,
the public officer is criminally liable for infidelity in the custody of official
documents.

Infidelity in the custody of documents through destruction or concealment
does not require proof of an illicit purpose

Where in case for bribery or corruption, the monetary considerations was marked
as exhibits, such considerations acquires the nature of a document such that if
the same would be spent by the custodian the crime is not malversation but
Infidelity in the custody of public records, because the money adduced as
exhibits partake the nature of a document and not as money. Although such
monetary consideration acquires the nature of a document, the best evidence
rule does not apply here. Example, photocopies may be presented in evidence.

Delivering the document to the wrong party is infidelity in the custody thereof

The damage may either be great or small

Damage to public interest is necessary. However, material damage is not
necessary.


161

Although there is no material damage caused, mere delay in rendering public
service is considered damage.

The offender must be in custody of such documents

Distinction between infidelity in the custody of public document, estafa
and malicious mischief

In infidelity in the custody of public document, the offender is the custodian of
the official document removed or concealed.

In estafa, the offender is not the custodian of the document removed or
concealed.

In malicious mischief, the offender purposely destroyed and damaged the
property/document.

Article 227
OFFICER BREAKING SEAL

ELEMENTS :

b. That he is charged with the custody of papers or property.

c. That these papers or property are sealed by proper authority.

d. That he breaks the seals or permits them to be broken.

It is the breaking of the seals and not the opening of a closed envelope which
is punished

Damage or intent to cause damage is not necessary; damage is presumed

If the official document is sealed or otherwise placed in an official envelope, the
element of damage is not required. The mere breaking of the seal or the mere
opening of the document would already bring about infidelity even though no
damage has been suffered by anyone or by the public at large. The offender
does not have to misappropriate the same. Just trying to discover or look what
is inside is infidelity already.

A crime is already committed regardless of whether the contents of the
document are secret or private. It is enough that it is entrusted to him in a
sealed form or in a closed envelope and he broke the seal or opened the
envelop. Public trust is already violated if he managed to look into the contents
of the document.

Distinction between infidelity and theft

There is infidelity if the offender opened the letter but did not take the same.


162
There is theft if there is intent to gain when the offender took the money.

Note that the document must be complete in legal sense. If the writings are
mere form, there is no crime.

Illustration:

As regard the payroll, which has not been signed by the Mayor, no infidelity is
committed because the document is not yet a payroll in the legal sense since the
document has not been signed yet.

In "breaking of seal", the word "breaking" should not be given a literal meaning.
Even if actually, the seal was not broken, because the custodian managed to
open the parcel without breaking the seal.

Article 228
OPENING OF CLOSED DOCUMENTS

ELEMENTS:

b. That any closed papers, documents, or objects are entrusted
to his custody.

c. That he opens or permits to be opened said closed papers,
documents or objects.

d. That he does not have proper authority.

Note: Damage also not necessary

In Article 227, the mere breaking of the seal is what is made punishable while
in Article 228, the mere opening of closed documents is enough to hold the
offender criminally liable. The breaking of the seal or the opening of the closed
document must be done without lawful authority or order from competent
authority. In both offenses, damage to the public interest is not required.

REVELATION OF SECRETS

Article 229
REVELATION OF SECRET BY AN OFFICER

ELEMENTS OF PAR.1: BY REASON OF HIS OFFICIAL CAPACITY

b. That he knows of a secret by reason of his official capacity.

c. That he reveals such secret without authority or justifiable
reasons.

d. That damage, great or small, be caused to the public interest.
(damage is essential)


163

Notes:
a. Secret must affect public interest

The secrets referred to in this article are those which have an official or public
character. It does not include secret information regarding private individuals.
Nor does it include military or State secrets in as much as the revelation of the
same is classified as espionage, a crime in violation of the national security of the
State.

b. Secrets of a private individual is not included

c. Espionage for the benefit of another State is not contemplated by the
article. If regarding military secrets or secrets affecting state security,
the crime may be espionage.

ELEMENTS OF PAR 2 DELIVERING WRONGFULLY PAPERS OR
COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH
SHOULD NOT BE PUBLISHED:

b. That he has charge of papers.

c. That those papers should not be published.

d. That he delivers those papers or copies thereof to a third
person.

e. That the delivery is wrongful.

f. That damage be caused to public interest.

Notes:
a. Charge: means custody or control. If he is merely entrusted with
the papers and not with the custody thereof, he is not liable under this
article

b. If the papers contain secrets which should not be published, and the
public officer having charge thereof removes and delivers them
wrongfully to a third person, the crime is revelation of secrets. On the
other hand, if the papers do not contain secrets, their removal for an
illicit purpose is infidelity in the custody of documents

c. Damage is essential to the act committed

Article 230
PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL

ELEMENTS:
a. That the offender is a public officer


164
b. That he knows of the secret of a private individual by reason
of his office.

c. That he reveals such secrets without authority or justification
reason.

Revelation to one person is sufficient

If the offender is an attorney, he is properly liable under Art 209 (betrayal of
trust by an attorney)

Damage to private individual is not necessary

OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

Article 231
OPEN DISOBEDIENCE

ELEMENTS:
a. That the offender is a judicial or executive officer.

b. That there is a judgment, decision or order of superior
authority.

c. That such judgment, decision or order was made within the
scope of the jurisdiction of the superior authority and issued
with all the legal formalities.

d. that the offender without any legal justification openly
refuses to execute the said judgment, decision or order which
he is duty bound to obey.

The gravamen of the offense is the open refusal of the offender to execute the
order without justifiable reason.

Note: Judgment should have been rendered in a hearing and issued within
proper jurisdiction with all legal solemnities required

The term execute as found in the law does not only means performance of an
act since the judgment, decision or order may also direct the non-performance of
an act.

The article does not apply to the members of Congress.

Article 232
DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER
WAS SUSPENDED BY INFERIOR OFFICER

ELEMENTS:


165

b. That an order is issued by his superior for execution.

c. That he has for any reason suspended the execution of such
order.

d. That his superior disapproves the suspension of the execution
of the order.

e. That the offender disobeys his superior despite the
disapproval of the suspension.

Note: A public officer is not liable if the order of the superior is illegal

What is contemplated here is a situation where the subordinate has some doubts
regarding the legality of the order. Hence, he is afforded an opportunity to
suspend the execution of the order, so as to give him time to further study the
same. He commits no crime for doing this act. However, if he continues to
suspend the execution of the order notwithstanding the disapproval by his
superior of the stay of the execution, such refusal on his part already constitutes
a crime punishable under this article.

Article 233
REFUSAL OF ASSISTANCE

ELEMENTS:

b. That a competent authority demands from the offender that
he lend his cooperation towards the administration of justice
or other public service.

c. That the offender fails to do so maliciously.

Involves a request from one public officer to another

Damage to the public interest or third party is essential

Damage is essential whether great or small. But the penalty is affected by the
seriousness of the damage. Note that the refusal must be done with malice.

Demand is necessary

The situation contemplated herein may refer to the administration of justice
before the case is filed in court. Competent authority may refer to persons in
authority who are charged by the law to help in the administration of justice. The
term may refer to police authorities. However, when a case under investigation
reaches the court, the remedy may not be limited to incurring criminal liability
under this article because the refusal may already be punished as direct or
indirect contempt of court.


166

This is a crime, which a policeman may commit when, being subpoenaed to
appear in court in connection with a crime investigated by him but because of
some arrangement with the offenders, the policeman does not appear in court
anymore to testify against the offenders. He tried to assail the subpoena so that
ultimately the case would be dismissed. It was already held that the policeman
could be prosecuted under this crime of refusal of assistance and not that of
dereliction of duty.

Article 234
REFUSAL TO DISCHARGE ELECTIVE OFFICE

ELEMENTS:
a. That the offender is elected by popular election to a public
office.

b. That he refuses to be sworn in or discharge the duties of said
office.

c. That there is no legal motive for such refusal to be sworn in or
to discharge the duties of said office.

After proclamation of a candidate to a public office, it becomes his duty to render
public service. Since it is his duty, then his refusal to perform such duty is
punishable under the law.

Note: Even if the person did not run for the office on his own will as the
Constitution provides that every citizen may be required to render service

Article 235
MALTREATMENT OF PRISONERS

ELEMENTS:
a. That the offender is a public officer or employee.

b. That he has under charge a prisoner or detention prisoner
(otherwise the crime is physical injuries)

c. That he maltreats such prisoner in either of the following
manners:

1. By overdoing himself in the correction or handling of a
prisoner or detention prisoner under his charge either

! by the imposition of punishments not authorized by the
regulations, or


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! by inflicting such punishments (those authorized) in a
cruel and humiliating manner, or

2. by maltreating such prisoner to extort a confession or to
obtain some information from the prisoner.

The maltreatment does not really require physical injuries. Any kind of
punishment not authorized or though authorized if executed in excess of the
prescribed degree.

But if as a result of the maltreatment, physical injuries were caused to the
prisoner, a separate crime for the physical injuries shall be filed. You do not
complex the crime of physical injuries with the maltreatment because the way
Article 235 is worded, it prohibits the complexing of the crime.

If the maltreatment was done in order to extort confession, therefore, the
constitutional right of the prisoner is further violated. The penalty is qualified to
the next higher degree.

The public officer must have actual charge of the prisoner in order to be held
liable

If the public officer is not the custodian of the prisoner, and he manhandles the
latter, the crime is physical injuries.

If a Barangay Captain maltreats a person after the latters arrest but before
confinement, the offense is not maltreatment but physical injuries. The victim
must actually be confined either as a convict or a detention prisoner for Art. 235
to apply. (People vs. Baring, et al., 37 O.G. 1366).

To be considered a detention prisoner, the person arrested must be placed in
jail even for just a short while

The offended party here must be a prisoner in the legal sense. The mere fact
that a private citizen had been apprehended or arrested by a law enforcer does
not constitute him a prisoner. To be a prisoner, he must have been booked and
incarcerated no matter how short it is.

Illustration:

A certain snatcher was arrested by a law enforcer, brought to the police precinct,
turned over to the custodian of that police precinct. Every time a policeman
entered the police precinct, he would ask, What is this fellow doing here? What
crime has he committed?. The other policeman would then tell, This fellow is a
snatcher. So every time a policeman would come in, he would inflict injury to
him. This is not maltreatment of prisoner because the offender is not the
custodian. The crime is only physical injuries.

But if the custodian is present there and he allowed it, then he will be liable also
for the physical injuries inflicted, but not for maltreatment because it was not the
custodian who inflicted the injury.

But if it is the custodian who effected the maltreatment, the crime will be
maltreatment of prisoners plus a separate charge for physical injuries.


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Offender may also be held liable for physical injuries or damage caused
Article 236
ANTICIPATION OF DUTIES OF A PUBLIC OFFICE

ELEMENTS:
a. That the offender is entitled to hold a public office or
employment, either by election or appointment.

b. That the law requires that he should first be sworn in and/or
should first give a bond.

c. That he assumes the performance of the duties and powers of
such office.

d. That he has not taken his oath of office and /or given the bond
required by law.

Article 237
PROLONGING PERFORMANCE OF DUTIES AND POWERS

ELEMENTS:
a. That the offender is holding a public office.

b. That the period provided by law, regulations or special
provisions for holding such office has already expired.

c. That he continues to exercise the duties and powers of such
office.

Note: The article contemplates officers who have been suspended, separated
or declared over-aged or dismissed

The crime is committed only if the public officer has lost every right to the office
because there are offices which require the officer to continue serving as such
properly relieved. The law is intended to put an end to the principle of hold
over.

Article 238
ABANDONMENT OF OFFICE OR POSITION

ELEMENTS:

b. That he formally resigns from his position.

c. That his resignation has not yet been accepted.

d. That he abandons his office to the detriment of the public
service.

There must be formal or written resignation


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Oral resignation is not allowed. The resignation must be in writing and directed
to the appointing power who has the authority to accept or disapprove the same.
This requirement is indispensable because the letter of resignation goes into a
process.

The offense is qualified if the purpose behind the abandonment is to evade
the discharge of duties consisting of preventing, prosecuting or punishing any
of the crimes against national security. The penalty is higher ( one degree ).
This involves the following crimes:
a. treason
b. conspiracy and proposal to commit conspiracy
c. misprision of treason
d. espionage
e. inciting to war or giving motives to reprisals
f. violation of neutrality
g. correspondence with hostile country
h. flight to enemy country
i. piracy and mutiny on the high seas
j. rebellion
k. conspiracy and proposal to commit rebellion
l. disloyalty to public officers
m. inciting to rebellion
n. sedition
o. conspiracy to commit sedition
p. inciting to sedition

Abandonment of Office or
Position (238)
Dereliction of Duty (208)
There is actual abandonment through
resignation to evade the discharge of
duties.
Public officer does not abandon his
office but merely fails to prosecute a
violation of the law.

Article 239
USURPATION OF LEGISLATIVE POWERS

ELEMENTS:
a. That the offender is an executive or judicial officer.

b. That he (a.) makes general rules or regulations beyond the scope
of his authority or (b.) attempts to repeal a law or (c.) suspends
the execution thereof.

Article 240
USURPATION OF EXECUTIVE FUNCTIONS

ELEMENTS:


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b. That he (a.) assumes a power pertaining to the executive
authorities, or (b.) obstructs executive authorities in the lawful
exercise of their powers.

Note: Legislative officers are not liable for usurpation of executive functions

Article 241
USURPATION OF JUDICIAL FUNCTIONS

ELEMENTS:
a. That the offender is an officer of the executive branch of the
government.

b. That he (a.) assumes judicial powers, or (b.) obstruct the
execution of any order decision rendered by any judge within
his jurisdiction.

Note: A mayor is guilty under this article when he investigates a case while a
justice of the peace is in the municipality

Article 242
DISOBEYING REQUEST FOR DISQUALIFICATION

ELEMENTS:

b. That a proceeding is pending before such public officer.

c. That there is a question brought before the proper authority
regarding his jurisdiction, which is not yet decided.

d. That he has been lawfully required to refrain from continuing
the proceeding.

e. That he continues the proceeding.

Even if the jurisdiction of the offender is later upheld or sustained, he is still
liable because what is in issue is not the legality of his jurisdiction, but whether
he obeyed or disobeyed the temporary restraining order issued by the higher
authority.

Article 243
ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL
AUTHORITY

ELEMENTS:
a. That the offender is an executive officer.


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b. That he addresses any order or suggestion to any judicial
authority.

c. That the order or suggestion relates to any case or business
coming within the exclusive jurisdiction of the courts of justice.

Note: Legislative or judicial officers are not liable under this article

Article 244
UNLAWFUL APPOINTMENTS

ELEMENTS:

b. That he nominates or appoints a person to a public office.

c. That such person lacks the legal qualification therefor.

d. That the offender knows that his nominee or appointee lacks
the qualification at the time he made the nomination or
appointment.

Recommending, knowing that the person recommended is not qualified is
not a crime

The word nominate is not the same as recommend. To nominate is to
guarantee to the appointing power that the person nominated has all the
qualifications to the office. Recommendation on the other hand does not make
any guarantee as to the legal fitness of the candidate to public office.

There must be a law providing for the qualifications of a person to be
nominated or appointed to a public office

Article 245
ABUSES AGAINST CHASTITY

ELEMENTS:

b. That he solicits or makes immoral or indecent advances to a
woman.

c. That such woman must be

1. interested in matters pending before the offender for
decision, or with respect to which he is required to submit a
report to or consult with a superior officer, or

2. under the custody of the offender who is a warden or other
public officer directly charged with care and custody of
prisoners or person under arrest, or


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3. the wife, daughter, sister or relative within the same degree
by affinity of the person in the custody of the offender

Only a lady can be a complainant here so that a gay guard or warden who
makes immoral proposals or indecent advances to a male prisoner is not liable
under this law.

Mere indecent solicitation or advances of a woman over whom the public officer
exercises a certain influence because the woman is involved in a case where the
offender is to make a report of result with superiors or otherwise a case which
the offender was investigating.

This crime is also committed if the woman is a prisoner and the offender is her
jail warden or custodian, or even if the prisoner may be a man if the jail warden
would make the immoral solicitations upon the wife, sister, daughter, or relative
by affinity within the same degree of the prisoner involved.

The mother of the person in the custody of the public officer is not included

This crime cannot be committed if the warden is a woman and the prisoner is a
man. Men have no chastity.

If the warden is also a woman but is a lesbian, it is submitted that this crime
could be committed, as the law does not require that the custodian be a man but
requires that the offended be a woman.

Solicit: means to propose earnestly and persistently something unchaste and
immoral to a woman

The word solicit means to demand earnestly. In this case, the demand is for
sexual favor. It must be immoral or indecent and done by the public officer
taking advantage of his position as one who can help by rendering a favorable
decision or unwarranted benefits, advantage or preference to a person under his
custody.

The crime is consummated by mere proposal

It is not necessarily for the offended party to surrender her virtue to
consummate the crime. Mere proposal is sufficient to consummate the crime.

Even if the woman may have lied with the hearing officer or to the public officer
and acceded to him, that does not change the crime because the crime seeks to
penalize the taking advantage of official duties.

It is immaterial whether the woman did not agree or agreed to the solicitation.
If the woman did not agree and the public officer involved pushed through with
the advances, attempted rape may have been committed.

Legally, a prisoner is an accountability of the government. So the custodian is
not supposed to interfere. Even if the prisoner may like it, he is not supposed to
do that. Otherwise, abuse against chastity is committed.

If he forced himself against the will of the woman, another crime is committed,
that is, rape aside from abuse against chastity.


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You cannot consider the abuse against chastity as absorbed in the rape because
the basis of penalizing the acts is different from each other.

Proof of solicitation is not necessary when there is sexual intercourse

Republic Act No. 7877 (Anti-Sexual Harassment Act)

Committed by any person having authority, influence or moral ascendancy over
another in a work, training or education environment when he or she demands,
requests, or otherwise requires any sexual favor from the other regardless of
whether the demand, request or requirement for submission is accepted by the
object of the said act (for a passing grade, or granting of scholarship or honors,
or payment of a stipend, allowances, benefits, considerations; favorable
compensation terms, conditions, promotions or when the refusal to do so results
in a detrimental consequence for the victim).

Also holds liable any person who directs or induces another to commit any act of
sexual harassment, or who cooperates in the commission, the head of the office,
educational or training institution solidarily.

Complaints to be handled by a committee on decorum, which shall be
determined by rules and regulations on such.

Administrative sanctions shall not be a bar to prosecution in the proper courts for
unlawful acts of sexual harassment.


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TITLE EIGHT
CRIMES AGAINST PERSONS
Crimes against persons

1. Parricide (Art. 246);

2. Murder (Art. 248);

3. Homicide (Art. 249);

4. Death caused in a tumultuous affray (Art. 251);

5. Physical injuries inflicted in a tumultuous affray (Art. 252);

6. Giving assistance to suicide (Art. 253);

7. Discharge of firearms (Art. 254);

8. Infanticide (Art. 255);

9. Intentional abortion (Art. 256);

10. Unintentional abortion (Art. 257);

11. Abortion practiced by the woman herself or by her parents (Art. 258);

12. Abortion practiced by a physician or midwife and dispensing of abortives
(Art. 259);

13. Duel (Art. 260);

14. Challenging to a duel (Art. 261);

15. Mutilation (Art. 262);

16. Serious physical injuries (Art. 263);

17. Administering injurious substances or beverages (Art. 264);

18. Less serious physical injuries (Art. 265);

19. Slight physical injuries and maltreatment (Art. 266); and

20. Rape (Art. 266-A).


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DESTRUCTION OF LIFE

Article 246
PARRICIDE

ELEMENTS:
1. That a person is killed.

2. That the deceased is killed by the accused.

3. That the deceased is the father, mother, or child, whether legitimate
or illegitimate, or a legitimate other ascendant or other descendant,
or the legitimate spouse of the accused.

Notes:
1. The relationship of the offender with the victim is the essential element of
the felony

The relationship must be in the direct line and not in the collateral line.

The relationship between the offender and the offended party must be
legitimate, except when the offender and the offended party are related as
parent and child.

Except between husband and wife, the offender must be related to the offended
party by blood.

2. Parents and children are not included in the term ascendants or
descendants

3. The other ascendant or descendant must be legitimate. On the other
hand, the father, mother or child may be legitimate or illegitimate

If the offender and the offended party, although related by blood and in the
direct line, are separated by an intervening illegitimate relationship, parricide can
no longer be committed. The illegitimate relationship between the child and the
parent renders all relatives after the child in the direct line to be illegitimate too.

The only illegitimate relationship that can bring about parricide is that between
parents and illegitimate children as the offender and the offended parties.

Illustration:

A is the parent of B, the illegitimate daughter. B married C and they begot a
legitimate child D. If D, daughter of B and C, would kill A, the grandmother, the
crime cannot be parricide anymore because of the intervening illegitimacy. The
relationship between A and D is no longer legitimate. Hence, the crime
committed is homicide or murder.

A, an illegitimate son of B, who killed the legitimate father of the latter, is not
guilty of Parricide because in case of other ascendants (grandparents, great
grandparents, etc.), the relationship with the killer must be legitimate. The same
is true with other descendants that is, grandchildren, great grandchildren, etc.


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4. The child should not be less than 3 days old. Otherwise, the offense is
infanticide

That the mother killed her child in order to conceal her dishonor is not
mitigating. This is immaterial to the crime of parricide, unlike in the case of
infanticide. If the child is less than three days old when killed, the crime is
infanticide and intent to conceal her dishonor is considered mitigating.

5. Relationship must be alleged

In killing a spouse, there must be a valid subsisting marriage at the time of the
killing. Also, the information should allege the fact of such valid marriage
between the accused and the victim.

In a ruling by the Supreme Court, it was held that if the information did not
allege that the accused was legally married to the victim, he could not be
convicted of parricide even if the marriage was established during the trial. In
such cases, relationship shall be appreciated as generic aggravating
circumstance.

The Supreme Court has also ruled that Muslim husbands with several wives can
be convicted of parricide only in case the first wife is killed. There is no parricide
if the other wives are killed although their marriage is recognized as valid. This
is so because a Catholic man can commit the crime only once. If a Muslim
husband could commit this crime more than once, in effect, he is being punished
for the marriage which the law itself authorized him to contract.

6. A stranger who cooperates in committing parricide is liable for murder or
homicide

Since parricide is a crime of relationship, if a stranger conspired in the
commission of the crime, he cannot be held liable for parricide. His participation
would make him liable for murder or for homicide, as the case may be. The rule
of conspiracy that the act of one is the act of all does not apply here because of
the personal relationship of the offender to the offended party.

Illustration:

A spouse of B conspires with C to kill B. C is the stranger in the relationship. C
killed B with treachery. The means employed is made known to A and A agreed
that the killing will be done by poisoning.

As far as A is concerned, the crime is based on his relationship with B. It is
therefore parricide. The treachery that was employed in killing Bong will only be
generic aggravating circumstance in the crime of parricide because this is not
one crime that requires a qualifying circumstance.

But that same treachery, insofar as C is concerned, as a stranger who
cooperated in the killing, makes the crime murder; treachery becomes a
qualifying circumstance.


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7. Even if the offender did not know that the person he had killed is his son,
he is still liable for parricide because the law does not require knowledge
of the relationship

Article 365 expressly provides that parricide can be committed through reckless
imprudence. The penalty will not be under Article 246 but under Article 365.

Similarly, parricide can be committed by mistake. This is demonstrated in a
situation where a person wanting to kill a stranger, kills his own father by
mistake. Although the crime committed is parricide, the offender will not be
punished under Article 246 but under Article 49, which prescribes a penalty much
lower than that provided under Article 246.

Article 247
DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL
CIRCUMSTANCES

Requisites:
1. A legally married person or parent surprises his spouse or daughter
(the latter must be under 18 and living with them) in the act of
committing sexual intercourse with another person

2. He/she kills any or both of them or inflicts upon any or both of them
any serious physical injury in the act or immediately thereafter

3. He has not promoted or facilitated the prostitution of his wife or
daughter, or that he has not consented to the infidelity of the other
spouse.

Notes:
1. Article does not define or penalize a felony

Article 247, far from defining a felony merely grants a privilege or benefit, more
of an exempting circumstance as the penalty is intended more for the protection
of the accused than a punishment. Death under exceptional character can not
be qualified by either aggravating or mitigating circumstances.

If the accused fails to establish the circumstances called for in Article 247,
he/she will be guilty of Parricide and Murder or Homicide if the victims were
killed.

2. Not necessary that the parent be legitimate

3. Article applies only when the daughter is single

4. Surprise: means to come upon suddenly or unexpectedly

5. Art 247 is applicable when the accused did not see his spouse in the act
sexual intercourse with another person. However, it is enough that
circumstances reasonably show that the carnal act is being committed or
has been committed


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It is not necessary that the spouse actually saw the sexual intercourse being
committed. It is enough that he/she surprised them under such circumstances
that no other reasonable conclusion can be inferred but that a carnal act was
being performed or has just been committed.

The article does not apply where the wife was not surprised in flagrant adultery
but was being abused by a man as in this case there will be defense of relation.

If the offender surprised a couple in sexual intercourse, and believing the woman
to be his wife, killed them, this article may be applied if the mistake of facts is
proved.

The benefits of this article do not apply to the person who consented to the
infidelity of his spouse or who facilitated the prostitution of his wife.

6. Sexual intercourse does not include preparatory acts

So if the surprising took place before any actual sexual intercourse could be done
because the parties are only in their preliminaries, the article cannot be invoked
anymore.

7. Immediately thereafter: means that the discovery, escape, pursuit and
the killing must all form parts of one continuous act

The phrase immediately thereafter has been interpreted to mean that between
the surprising and the killing of the inflicting of the physical injury, there should
be no break of time. In other words, it must be a continuous process.

If there was already a break of time between the sexual act and the killing or
inflicting of the injury, the law presupposes that the offender regained his reason
and therefore, the article will not apply anymore.

8. The killing must be the direct by-product of the rage of the accused

Article 247 does not provide that the victim is to be killed instantly by the
accused after surprising his spouse in the act of intercourse. What is required is
that the killing is the proximate result of the outrage overwhelming the accused
upon the discovery of the infidelity of his spouse. The killing should have been
actually motivated by the same blind impulse.

9. No criminal liability is incurred when less serious or slight physical injuries
are inflicted. Moreover, in case third persons caught in the crossfire suffer
physical injuries, the accused is not liable. The principle that one is liable
for the consequences of his felonious act is not applicable because he is
not committing a felony

In the case of People v. Abarca, 153 SCRA 735, two persons suffered
physical injuries as they were caught in the crossfire when the accused shot the
victim. A complex crime of double frustrated murder was not committed as the
accused did not have the intent to kill the two victims. Here, the accused did not
commit murder when he fired at the paramour of his wife. Inflicting death under
exceptional circumstances is not murder. The accused was held liable for
negligence under the first part, second paragraph of Article 365, that is, less


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serious physical injuries through simple negligence. No aberratio ictus because
he was acting lawfully.

A person who acts under Article 247 is not committing a crime. Since this is
merely an exempting circumstance, the accused must first be charged with:

(1) Parricide if the spouse is killed;

(2) Murder or homicide depending on how the killing was done insofar as
the paramour or the mistress is concerned;

(3) Homicide through simple negligence, if a third party is killed;

(4) Physical injuries through reckless imprudence, if a third party is injured.
If death results or the physical injuries are serious, there is criminal liability
although the penalty is only destierro. The banishment is intended more for the
protection of the offender rather than a penalty.

If the crime committed is less serious physical injuries or slight physical injuries,
there is no criminal liability.

Article 248
MURDER

ELEMENTS :
1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the following qualifying
circumstances

a. with treachery, taking advantage of superior strength, with
the aid or armed men, or employing means to weaken the
defense or of means or persons to insure or afford impunity

b. in consideration of price, reward or promise

c. by means of inundation, fire, poison, explosion, shipwreck,
stranding of vessel, derailment or assault upon a street car or
locomotive, fall of airship, by means of motor vehicles or with
the use of any other means involving great waste or ruin

d. on occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic or any other public
calamity

e. with evident premeditation

f. with cruelty, by deliberately and inhumanely augmenting the
suffering of the victim or outraging or scoffing at his person or
corpse


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4. The killing is not parricide or infanticide.

Notes:

While the circumstance of by a band is not among those enumerated that
could qualify killing to murder, it would seem that if the killers constituted a
band, the crime is murder because the circumstance of with the aid of armed
men is included in the qualifying circumstances.

1. The victim must be killed in order to consummate the offense. Otherwise,
it would be attempted or frustrated murder

Killing a person with treachery is murder even if there is no intent to kill.
(People vs. Cagoco, 58 Phil. 530)

2. Any of the qualifying circumstances must be alleged in the information.
Otherwise, they will only be considered as generic aggravating
circumstances

When the other circumstances are absorbed or included in one qualifying
circumstance, they cannot be treated or separated as generic aggravating
circumstances. (People vs. Remalante, 92 Phil. 48)

3. Treachery and premeditation are inherent in murder with the use of
poison

Ortega Notes:

In murder, any of the following qualifying circumstances is present:

(1) Treachery, taking advantage of superior strength, aid or armed men, or
employing means to waken the defense, or of means or persons to insure
or afford impunity;

There is treachery when the offender commits any of the crimes against
the person employing means, methods or forms in the execution thereof
that tend directly and especially to insure its execution without risk to
himself arising from the defense which the offended party might make.

This circumstance involves means, methods, form in the execution of the
killing which may actually be an aggravating circumstance also, in which
case, the treachery absorbs the same.

Illustration:

A person who is determined to kill resorted to the cover of darkness at
nighttime to insure the killing. Nocturnity becomes a means that
constitutes treachery and the killing would be murder. But if the
aggravating circumstance of nocturnity is considered by itself, it is not one
of those which qualify a homicide to murder. One might think the killing


181
is homicide unless nocturnity is considered as constituting treachery, in
which case the crime is murder.

The essence of treachery is that the offended party was denied the
chance to defend himself because of the means, methods, form in
executing the crime deliberately adopted by the offender. It is a matter of
whether or not the offended party was denied the chance of defending
himself.

If the offended was denied the chance to defend himself, treachery
qualifies the killing to murder. If despite the means resorted to by the
offender, the offended was able to put up a defense, although
unsuccessful, treachery is not available. Instead, some other
circumstance may be present. Consider now whether such other
circumstance qualifies the killing or not.

Illustration:

If the offender used superior strength and the victim was denied the
chance to defend himself, there is treachery. The treachery must be
alleged in the information. But if the victim was able to put up an
unsuccessful resistance, there is no more treachery but the use of
superior strength can be alleged and it also qualifies the killing to murder.

One attendant qualifying circumstance is enough. If there are more than
one qualifying circumstance alleged in the information for murder, only
one circumstance will qualify the killing to murder and the other
circumstances will be taken as generic.

To be considered qualifying, the particular circumstance must be alleged
in the information. If what was alleged was not proven and instead
another circumstance, not alleged, was established during the trial, even if
the latter constitutes a qualifying circumstance under Article 248, the
same can not qualify the killing to murder. The accused can only be
convicted of homicide.

Generally, murder cannot be committed if at the beginning, the offended
had no intent to kill because the qualifying circumstances must be
resorted to with a view of killing the offended party. So if the killing were
at the spur of the moment, even though the victim was denied the
chance to defend himself because of the suddenness of the attack, the
crime would only be homicide. Treachery contemplates that the means,
methods and form in the execution were consciously adopted and
deliberately resorted to by the offender, and were not merely incidental to
the killing.

If the offender may have not intended to kill the victim but he only
wanted to commit a crime against him in the beginning, he will still be
liable for murder if in the manner of committing the felony there was
treachery and as a consequence thereof the victim died. This is based on
the rule that a person committing a felony shall be liable for the
consequences thereof although different from that which he intended.


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Illustration:

The accused, three young men, resented the fact that the victim
continued to visit a girl in their neighborhood despite the warning they
gave him. So one evening, after the victim had visited the girl, they
seized and tied him to a tree, with both arms and legs around the tree.
They thought they would give him a lesson by whipping him with
branches of gumamela until the victim fell unconscious. The accused left
not knowing that the victim died.

The crime committed was murder. The accused deprived the victim of the
chance to defend himself when the latter was tied to a tree. Treachery is
a circumstance referring to the manner of committing the crime. There
was no risk to the accused arising from the defense by the victim.

Although what was initially intended was physical injury, the manner
adopted by the accused was treacherous and since the victim died as a
consequence thereof, the crime is murder -- although originally, there was
no intent to kill.

When the victim is already dead, intent to kill becomes irrelevant. It is
important only if the victim did not die to determine if the felony is
physical injury or attempted or frustrated homicide.

So long as the means, methods and form in the execution is deliberately
adopted, even if there was no intent to kill, there is treachery.

(2) In consideration of price, reward or promises;

(3) 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 a motor vehicle, or with the use of other means involving great
waste and ruin;

The only problem insofar as the killing by fire is concerned is whether it
would be arson with homicide, or murder.

When a person is killed by fire, the primordial criminal intent of the
offender is considered. If the primordial criminal intent of the offender is
to kill and fire was only used as a means to do so, the crime is only
murder. If the primordial criminal intent of the offender is to destroy
property with the use of pyrotechnics and incidentally, somebody within
the premises is killed, the crime is arson with homicide. But this is not a
complex crime under Article 48. This is single indivisible crime penalized
under Article 326, which is death as a consequence of arson. That
somebody died during such fire would not bring about murder because
there is no intent to kill in the mind of the offender. He intended only to
destroy property. However, a higher penalty will be applied.

When killing was accomplished by means of fire alleged in the information, it
does not qualify killing to Murder unless the use of fire was employed to kill the
victim.


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In People v. Pugay and Samson, 167 SCRA 439, there was a town
fiesta and the two accused were at the town plaza with their companions.
All were uproariously happy, apparently drenched with drink. Then, the
group saw the victim, a 25 year old retard walking nearby and they made
him dance by tickling his sides with a piece of wood. The victim and the
accused Pugay were friends and, at times, slept in the same place
together. Having gotten bored with their form of entertainment, accused
Pugay went and got a can of gasoline and poured it all over the retard.
Then, the accused Samson lit him up, making him a frenzied, shrieking
human torch. The retard died.

It was held that Pugay was guilty of homicide through reckless
imprudence. Samson only guilty of homicide, with the mitigating
circumstance of no intention to commit so grave a wrong. There was no
animosity between the two accused and the victim such that it cannot be
said that they resort to fire to kill him. It was merely a part of their fun
making but because their acts were felonious, they are criminally liable.

(4) On occasion of any of the calamities enumerated in the preceding
paragraph c, or an earthquake, eruption of volcano, destructive cyclone,
epidemic or any other public calamity;

(5) Evident premeditation; and

When the actual victim turns out to be different from the intended victim,
premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307)

(6) Cruelty, by deliberately and inhumanly augmenting the suffering of the
victim, or outraging or scoffing at his person or corpse.

Cruelty includes the situation where the victim is already dead and yet,
acts were committed which would decry or scoff the corpse of the victim.
The crime becomes murder.

Hence, this is not actually limited to cruelty. It goes beyond that because
even if the victim is already a corpse when the acts deliberately
augmenting the wrong done to him were committed, the killing is still
qualified to murder although the acts done no longer amount to cruelty.

Under Article 14, the generic aggravating circumstance of cruelty requires
that the victim be alive, when the cruel wounds were inflicted and,
therefore, must be evidence to that effect. Yet, in murder, aside from
cruelty, any act that would amount to scoffing or decrying the corpse of
the victim will qualify the killing to murder.

Illustration:

Two people engaged in a quarrel and they hacked each other, one killing
the other. Up to that point, the crime is homicide. However, if the killer
tried to dismember the different parts of the body of the victim, indicative
of an intention to scoff at or decry or humiliate the corpse of the victim,
then what would have murder because this circumstance is recognized
under Article 248, even though it was inflicted or was committed when the
victim was already dead.


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The following are holdings of the Supreme Court with respect to the
crime of murder:

(1) Killing of a child of tender age is murder qualified by treachery because
the weakness of the child due to his tender age results in the absence of
any danger to the aggressor.

(2) Evident premeditation is absorbed in price, reward or promise, if without
the premeditation the inductor would not have induced the other to
commit the act but not as regards the one induced.

(3 Abuse of superior strength is inherent in and comprehended by the
circumstance of treachery or forms part of treachery.

(4) Treachery is inherent in poison.

(5) Where one of the accused, who were charged with murder, was the wife
of the deceased but here relationship to the deceased was not alleged in
the information, she also should be convicted of murder but the
relationship should be appreciated as aggravating.

(6) Killing of the victims hit by hand grenade thrown at them is murder
qualified by explosion not by treachery.

(7) Where the accused housemaid gagged a three year old boy, son of her
master, with stockings, placed him in a box with head down and legs
upward and covered the box with some sacks and other boxes, and the
child instantly died because of suffocation, and then the accused
demanded ransom from the parents, such did not convert the offense into
kidnapping with murder. The accused was well aware that the child could
be suffocated to death in a few minutes after she left. Ransom was only
a part of the diabolical scheme to murder the child, to conceal his body
and then demand money before discovery of the body.

The essence of kidnapping or serious illegal detention is the actual confinement
or restraint of the victim or deprivation of his liberty. If there is no showing that
the accused intended to deprive their victims of their liberty for some time and
there being no appreciable interval between their being taken and their being
shot, murder and not kidnapping with murder is committed.

Article 249
HOMICIDE

ELEMENTS:
1. That a person was killed.

2. That the accused killed him without any justifying circumstances.

3. That the accused had the intention to kill, which is presumed.


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4. That the killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or infanticide.

Notes:
Homicide is the unlawful killing of a person not constituting murder, parricide
or infanticide.

1. Intent to kill is conclusively presumed when death resulted. Hence,
evidence of intent to kill is required only in attempted or frustrated
homicide

2. In all crimes against persons in which the death of the victim is an
element, there must be satisfactory evidence of (1) the fact of death and
(2) the identity of the victim

Distinction between homicide and physical injuries:

In attempted or frustrated homicide, there is intent to kill.

In physical injuries, there is none. However, if as a result of the physical injuries
inflicted, the victim died, the crime will be homicide because the law punishes
the result, and not the intent of the act.

The following are holdings of the Supreme Court with respect to the
crime of homicide:

(1) Physical injuries are included as one of the essential elements of
frustrated homicide.

(2) If the deceased received two wounds from two persons acting
independently of each other and the wound inflicted by either could have
caused death, both of them are liable for the death of the victim and each
of them is guilty of homicide.

(3) If the injuries were mortal but were only due to negligence, the crime
committed will be serious physical injuries through reckless imprudence as
the element of intent to kill in frustrated homicide is incompatible with
negligence or imprudence.

(4) Where the intent to kill is not manifest, the crime committed has been
generally considered as physical injuries and not attempted or frustrated
murder or homicide.

(5) When several assailants not acting in conspiracy inflicted wounds on a
victim but it cannot be determined who inflicted which would which
caused the death of the victim, all are liable for the victims death.

Note that while it is possible to have a crime of homicide through reckless
imprudence, it is not possible to have a crime of frustrated homicide through
reckless imprudence.

If a boxer killed his opponent in a boxing bout duly licensed by the Government
without any violation of the governing rules and regulations, there is no
Homicide to speak of. If he hit his opponent below the belt without any


186
intention to do so, it is Homicide Through Reckless Imprudence if the latter died
as a result. If he intentionally hit his opponent on that part of his body causing
the death, the crime is Homicide.

The shooting of a peace officer who was fully aware of the risks in pursuing the
malefactors when done in a spur of the moment is only Homicide. (People vs.
Porras, 255 SCRA 514).

Common misconception on the meaning of corpus delicti.

Corpus delicti means body of the crime. It does not refer to the body of the
murdered person. In all crimes against persons in which the death of the victim
is an element of the crime, there must be proof of the fact of death and identity
of the victim. (Cortez vs. Court of Appeals, 162 SCRA 139)

Article 250
PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE

Article 251
DEATH IN A TUMULTOUS AFFRAY

ELEMENTS:
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 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.

Notes:
1. Tumultuous affray exists when at least 4 persons take part in it

2. When there are 2 identified groups of men who assaulted each other,
there is no tumultuous affray

3. Persons liable are:
a. person/s who inflicted serious physical injuries

b. if it is not known who inflicted serious physical injuries on the
deceased, all persons who used violence upon the person of the victim


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If those who actually killed the victim can be determined, they will be the ones to
be held liable, and those who inflicted serious or less serious or slight physical
injuries shall be punished for said corresponding offenses provided no conspiracy
is established with the killers.

Tumultuous affray simply means a commotion in a tumultuous and confused
manner, to such an extent that it would not be possible to identify who the killer
is if death results, or who inflicted the serious physical injury, but the person or
persons who used violence are known.

It is not a tumultuous affray which brings about the crime; it is the inability to
ascertain actual perpetrator. It is necessary that the very person who caused
the death can not be known, not that he can not be identified. Because if he is
known but only his identity is not known, then he will be charged for the crime of
homicide or murder under a fictitious name and not death in a tumultuous affray.
If there is a conspiracy, this crime is not committed.

To be considered death in a tumultuous affray, there must be:

(1) a quarrel, a free-for-all, which should not involve organized group; and

(2) someone who is injured or killed because of the fight.

The person killed in the affray need not be one of the participants.

As long as it cannot be determined who killed the victim, all of those persons
who inflicted serious physical injuries will be collectively answerable for the death
of that fellow.

The Revised Penal Code sets priorities as to who may be liable for the
death or physical injury in tumultuous affray:

(1) The persons who inflicted serious physical injury upon the victim;

(2) If they could not be known, then anyone who may have employed
violence on that person will answer for his death.

(3) If nobody could still be traced to have employed violence upon the victim,
nobody will answer. The crimes committed might be disturbance of public
order, or if participants are armed, it could be tumultuous disturbance, or
if property was destroyed, it could be malicious mischief.

Article 252
PHYSICAL INJURIES INFLICTED IN A TUMULTOUS AFFRAY

ELEMENTS:
1. that there is a tumultuous affray as referred to in the preceding
article.

2. That a participant or some participants thereof suffer serious
physical injuries or physical injuries of a less serious nature only.

3. that the person responsible therefor cannot be identified.


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4. That all those who appear to have used violence upon the person of
the offended party are known.

Unlike in Article 251, where the victim need not be one of the participants, the
injured party in the crime of physical injuries inflicted in tumultuous affray must
be one or some of those involved in the quarrel.

In physical injuries caused in a tumultuous affray, the conditions are also the
same. But you do not have a crime of physical injuries resulting from a
tumultuous affray if the physical injury is only slight. The physical injury should
be serious or less serious and resulting from a tumultuous affray. So anyone
who may have employed violence will answer for such serious or less serious
physical injury.

If the physical injury sustained is only slight, this is considered as inherent in a
tumultuous affray. The offended party cannot complain if he cannot identify
who inflicted the slight physical injuries on him.

Note that in slight physical injuries is inflicted in the tumultuous affray and the
identity of the offender is established, the provisions of this article will not be
observed. Instead, the offender shall be prosecuted in the ordinary course of
law.

Article 253
GIVING ASSISTANCE TO SUICIDE

Acts punishable:
1. Assisting another to commit suicide, whether the suicide is
consummated or not

2. Lending his assistance to another to commit suicide to the extent
of doing the killing himself

Notes:
Giving assistance to suicide means giving means (arms, poison, etc.) or whatever
manner of positive and direct cooperation (intellectual aid, suggestions regarding
the mode of committing suicide, etc.).

1. A person who attempts to commit suicide is not criminally liable

In this crime, the intention must be for the person who is asking the assistance
of another to commit suicide.

If the intention is not to commit suicide, as when he just wanted to have a
picture taken of him to impress upon the world that he is committing suicide
because he is not satisfied with the government, the crime is held to be inciting
to sedition.

He becomes a co-conspirator in the crime of inciting to sedition, but not of giving
assistance to suicide because the assistance must be given to one who is really
determined to commit suicide.


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2. A pregnant woman who tried to commit suicide by means of poison but
instead of dying, the fetus in her womb was expelled, is not liable for
abortion

3. Assistance to suicide is different from mercy-killing. Euthanasia/mercy-
killing is the practice of painlessly putting to death a person suffering from
some incurable disease. In this case, the person does not want to die. A
doctor who resorts to euthanasia may be held liable for murder

If the person does the killing himself, the penalty is similar to that of homicide,
which is reclusion temporal. There can be no qualifying circumstance because
the determination to die must come from the victim. This does not contemplate
euthanasia or mercy killing where the crime is murder, if without consent; if with
consent, covered by Article 253.

In mercy killing, the victim is not in a position to commit suicide. Whoever would
heed his advice is not really giving assistance to suicide but doing the killing
himself. In giving assistance to suicide, the principal actor is the person
committing the suicide.

Both in euthanasia and suicide, the intention to the end life comes from the
victim himself; otherwise the article does not apply. The victim must persistently
induce the offender to end his life.

4. Penalty is mitigated if suicide is not successful

Even if the suicide did not materialize, the person giving assistance to suicide is
also liable but the penalty shall be one or two degrees lower depending on
whether it is frustrated or attempted suicide.

The following are holdings of the Supreme Court with respect to this
crime:

(1) The crime is frustrated if the offender gives the assistance by doing the
killing himself as firing upon the head of the victim but who did not die
due to medical assistance.

(2) The person attempting to commit suicide is not liable if he survives. The
accused is liable if he kills the victim, his sweetheart, because of a suicide
pact.

Article 254
DISCHARGE OF FIREARMS

ELEMENTS:
1. that the offender discharges a firearm against or at another person.

2. That the offender has no intention to kill that person.

Notes:

This crime cannot be committed through imprudence because it requires that the
discharge must be directed at another.


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1. The offender must shoot at another with any firearm without intention of
killing him. If the firearm is not discharged at a person, the act is not
punished under this article

If the firearm is directed at a person and the trigger was pressed but did not fire,
the crime is frustrated discharge of firearm.

If the discharge is not directed at a person, the crime may constitute alarm and
scandal.

2. A discharge towards the house of the victim is not discharge of firearm.
On the other hand, firing a gun against the house of the offended party at
random, not knowing in what part of the house the people were, it is only
alarm under art 155.

3. Usually, the purpose of the offender is only to intimidate or frighten the
offended party

4. Intent to kill is negated by the fact that the distance between the victim
and the offender is 200 yards

5. A person can be held liable for discharge even if the gun was not pointed
at the offended party when it fired for as long as it was initially aimed at
or against the offended party

The following are holdings of the Supreme Court with respect to this
crime:

(1) If serious physical injuries resulted from discharge, the crime committed is
the complex crime of serious physical injury with illegal discharge of
firearm, or if less serious physical injury, the complex crime of less serious
physical injury with illegal discharge of firearm will apply.

(2) Firing a gun at a person even if merely to frighten him constitutes illegal
discharge of firearm.

The gun used in the crime must be licensed, or the person using the firearm
must be authorized to carry the same, otherwise, in addition to the crime
punished under this article, accused may also be held liable for illegal possession
of firearm under Republic Act No. 1866 as amended by Republic Act No. 8294.

Article 255
INFANTICIDE

ELEMENTS:
1. That a child was killed.

2. That the deceased child was less than three days (72 hours) of age.

3. That the accused killed the said child.

Notes:


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1. When the offender is the father, mother or legitimate ascendant, he shall
suffer the penalty prescribed for parricide. If the offender is any other
person, the penalty is that for murder. In either case, the proper
qualification for the offense is infanticide

Even if the killer is the mother or the father or the legitimate grandparents, the
crime is still Infanticide and not Parricide. The penalty however, is that for
Parricide.

Illustration:

An unmarried woman, A, gave birth to a child, B. To conceal her dishonor, A
conspired with C to dispose of the child. C agreed and killed the child B by
burying the child somewhere.

If the child was killed when the age of the child was three days old and above
already, the crime of A is parricide. The fact that the killing was done to conceal
her dishonor will not mitigate the criminal liability anymore because concealment
of dishonor in killing the child is not mitigating in parricide.

If the crime committed by A is parricide because the age of the child is three
days old or above, the crime of the co-conspirator C is murder. It is not parricide
because he is not related to the victim.

If the child is less than three days old when killed, both the mother and the
stranger commits infanticide because infanticide is not predicated on the relation
of the offender to the offended party but on the age of the child. In such a case,
concealment of dishonor as a motive for the mother to have the child killed is
mitigating.

2. When infanticide is committed by the mother or maternal grandmother in
order to conceal the dishonor, such fact is only mitigating

3. The delinquent mother who claims that she committed the offense to
conceal the dishonor must be of good reputation. Hence, if she is a
prostitute, she is not entitled to a lesser penalty because she has no honor
to conceal

Concealment of dishonor is not an element of infanticide. It merely lowers the
penalty. If the child is abandoned without any intent to kill and death results as
a consequence, the crime committed is not infanticide but abandonment under
Article 276.

If the purpose of the mother is to conceal her dishonor, infanticide through
imprudence is not committed because the purpose of concealing the dishonor is
incompatible with the absence of malice in culpable felonies.

4. There is no infanticide when the child was born dead, or although born
alive it could not sustain an independent life when it was killed

In our study of persons and family relations, we have learned that birth
determines personality. So fetus becomes a person by the legal fact of birth. The
Civil Code provides that, if the fetus had an intra-uterine life of less than seven
(7) months, it will be considered born only if it survives 24 hours after the


192
umbilical cord is cut. If such fetus is killed within the 24-hour period, we have to
determine if it would have survived or it would have died nonetheless, had it not
been killed.

A legal problem occurs when a fetus having an intra-uterine life of less than 7
months, born alive, is killed within 24 hours from the time the umbilical cord is
cut. This is so because there is difficulty of determining whether the crime
committed is infanticide or abortion. In such a situation, the court may avail of
expert testimony in order to help it arrive at a conclusion. So, if it is shown that
the infant cannot survive within 24 hours, the crime committed is abortion;
otherwise if it can survive, the crime would be infanticide.

Article 256
INTENTIONAL ABORTION

ELEMENTS:
1. That there is a pregnant woman.

2. That violence is exerted, or drugs or beverages administered, or that
the accused otherwise acts upon such pregnant woman.

3. That as a result of the use of violence or drugs or beverages upon
her, or any other act of the accused, the fetus dies, either in the
womb or after having been expelled therefrom.

4. That the abortion is intended.

Ortega Notes:
Acts punished

1. Using any violence upon the person of the pregnant woman;

2. Acting, but without using violence, without the consent of the woman.
(By administering drugs or beverages upon such pregnant woman without
her consent.)

3. Acting (by administering drugs or beverages), with the consent of the
pregnant woman.

Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus
has been delivered but it could not subsist by itself, it is still a fetus and not a
person. Thus, if it is killed, the crime committed is abortion not infanticide.

Distinction between infanticide and abortion

It is infanticide if the victim is already a person less that three days old or 72
hours and is viable or capable of living separately from the mothers womb.

It is abortion if the victim is not viable but remains to be a fetus.

Abortion is not a crime against the woman but against the fetus. If mother as a
consequence of abortion suffers death or physical injuries, you have a complex
crime of murder or physical injuries and abortion.


193

In intentional abortion, the offender must know of the pregnancy because the
particular criminal intention is to cause an abortion. Therefore, the offender
must have known of the pregnancy for otherwise, he would not try an abortion.

If the woman turns out not to be pregnant and someone performs an abortion
upon her, he is liable for an impossible crime if the woman suffers no physical
injury. If she does, the crime will be homicide, serious physical injuries, etc.

Under the Article 40 of the Civil Code, birth determines personality. A person is
considered born at the time when the umbilical cord is cut. He then acquires a
personality separate from the mother.

But even though the umbilical cord has been cut, Article 41 of the Civil Code
provides that if the fetus had an intra-uterine life of less than seven months, it
must survive at least 24 hours after the umbilical cord is cut for it to be
considered born.

Illustration:

A mother delivered an offspring which had an intra-uterine life of seven months.
Before the umbilical cord is cut, the child was killed.

If it could be shown that had the umbilical cord been cut, that child, if not killed,
would have survived beyond 24 hours, the crime is infanticide because that
conceived child is already considered born.

If it could be shown that the child, if not killed, would not have survived beyond
24 hours, the crime is abortion because what was killed was a fetus only.

In abortion, the concealment of dishonor as a motive of the mother to commit
the abortion upon herself is mitigating. It will also mitigate the liability of the
maternal grandparent of the victim the mother of the pregnant woman if the
abortion was done with the consent of the pregnant woman.

If the abortion was done by the mother of the pregnant woman without the
consent of the woman herself, even if it was done to conceal dishonor, that
circumstance will not mitigate her criminal liability.

But if those who performed the abortion are the parents of the pregnant woman,
or either of them, and the pregnant woman consented for the purpose of
concealing her dishonor, the penalty is the same as that imposed upon the
woman who practiced the abortion upon herself .

Frustrated abortion is committed if the fetus that is expelled is viable and,
therefore, not dead as abortion did not result despite the employment of
adequate and sufficient means to make the pregnant woman abort. If the
means are not sufficient or adequate, the crime would be an impossible crime of
abortion. In consummated abortion, the fetus must be dead.

One who persuades her sister to abort is a co-principal, and one who looks for a
physician to make his sweetheart abort is an accomplice. The physician will be
punished under Article 259 of the Revised Penal Code.


194

Article 257
UNINTENTIONAL ABORTION

ELEMENTS:
1. That there is a pregnant woman.

2. That violence is used upon such pregnant woman without intending
an abortion.

3. That the violence is intentionally exerted.

4. That as a result of the violence that fetus dies, either in the womb or
after having been expelled therefrom.

Notes:

Unintentional abortion requires physical violence inflicted deliberately and
voluntarily by a third person upon the person of the pregnant woman. Mere
intimidation is not enough unless the degree of intimidation already
approximates violence.

If the pregnant woman aborted because of intimidation, the crime committed is
not unintentional abortion because there is no violence; the crime committed is
light threats.

If the pregnant woman was killed by violence by her husband, the crime
committed is the complex crime of parricide with unlawful abortion.

While there is no intention on the part of the accused to cause an abortion,
nonetheless, the violence that he employs on the pregnant woman must be
intentional. In other words, only the abortion is unintended.

1. Unintentional abortion can also be committed through negligence

Unintentional abortion may be committed through negligence as it is enough that
the use of violence be voluntary.

Illustration:

A quarrel ensued between A, husband, and B, wife. A became so angry that he
struck B, who was then pregnant, with a soft drink bottle on the hip. Abortion
resulted and B died.

Take note that while unintentional abortion appears to be a crime that should be
committed with deliberate intent because of the requirement that the violence
employed on the victim must be intentional, nevertheless, if the circumstances of
the case justifies the application of the other means of committing a felony (like
culpa), then the same should be applied but the penalty will not be the penalty
provided under Article 257. Instead, the offender shall be subject to the penalty
prescribed for simple or reckless imprudence under Article 365.

2. The accused can only be held liable if he knew that the woman was
pregnant


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- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of
pregnancy of the offended party is not necessary. In People v. Carnaso,
decided on April 7, 1964, however, the Supreme Court held that knowledge of
pregnancy is required in unintentional abortion.

Criticism:

Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a
felony is criminally liable for all the direct, natural, and logical consequences of
his felonious acts although it may be different from that which is intended. The
act of employing violence or physical force upon the woman is already a felony.
It is not material if offender knew about the woman being pregnant or not.

If the act of violence is not felonious, that is, act of self-defense, and there is no
knowledge of the womans pregnancy, there is no liability. If the act of violence
is not felonious, but there is knowledge of the womans pregnancy, the offender
is liable for unintentional abortion.

Illustration:

The act of pushing another causing her to fall is a felonious act and could result
in physical injuries. Correspondingly, if not only physical injuries were sustained
but abortion also resulted, the felonious act of pushing is the proximate cause of
the unintentional abortion.

3. If there is no intention to cause abortion and neither was violence
exerted, arts 256 and 257 does not apply

Questions & Answers

1. A pregnant woman decided to commit suicide. She jumped out of
a window of a building but she landed on a passerby. She did not die but an
abortion followed. Is she liable for unintentional abortion?

No. What is contemplated in unintentional abortion is that the force or
violence must come from another. If it was the woman doing the violence
upon herself, it must be to bring about an abortion, and therefore, the crime
will be intentional abortion. In this case, where the woman tried to commit
suicide, the act of trying to commit suicide is not a felony under the Revised
Penal Code. The one penalized in suicide is the one giving assistance and not
the person trying to commit suicide.

2. If the abortive drug used in abortion is a prohibited drug or
regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of
1972), as amended, what are the crimes committed?

The crimes committed are (1) intentional abortion; and (2) violation of the
Dangerous Drugs Act of 1972.

Article 258
ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS


196

ELEMENTS :
1. That there is a pregnant woman who has suffered an abortion.


3. That the abortion is caused by

a. the pregnant woman herself

b. any other person, with her consent, or

c. any of her parents, with her consent for the purpose of
concealing her dishonor.

Notes:
1. Liability of the pregnant woman is mitigated if the purpose is to conceal
her dishonor. However, there is no Mitigation for the parents of the
pregnant women even if their purpose is to conceal their daughters
dishonor

2. In infanticide, parents can avail of the mitigating circumstance of
concealing the dishonor of their daughter. This is not so for art 258

Article 259
ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND
DISPENSING OF ABORTIVES

ELEMENTS:
1. That there is a pregnant woman who has suffered an abortion.


3. That the offender, who must be a physician or midwife, causes or
assists in causing the abortion.

4. That said physician or midwife takes advantage of his or her
scientific knowledge or skill.

Notes:
1. It is not necessary that the pharmacist knew that the abortive would be
used to cause abortion. What is punished is the act of dispensing an
abortive without the proper prescription. It is not necessary that the
abortive be actually used

2. If the pharmacist knew that the abortive would be used to cause abortion
and abortion results, he is liable as an accomplice

If the abortion is produced by a physician to save the life of the mother, there is
no liability. This is known as a therapeutic abortion. But abortion without
medical necessity to warrant it is punishable even with the consent of the
woman or her husband.

Illustration:


197

A woman who is pregnant got sick. The doctor administered a medicine which
resulted in Abortion. The crime committed was unintentional abortion through
negligence or imprudence.

Question & Answer

What is the liability of a physician who aborts the fetus to save the life of
the mother?

None. This is a case of therapeutic abortion which is done out of a state
of necessity. Therefore, the requisites under Article 11, paragraph 4, of the
Revised Penal Code must be present. There must be no other practical or less
harmful means of saving the life of the mother to make the killing justified.

Article 260
RESPONSIBILITY OF PARTICIPANTS IN A DUEL

Acts punished:
1. Killing ones adversary in a duel

2. Inflicting upon the adversary serious physical injuries

3. Making a combat although no physical injuries have been
inflicted

Persons liable:
1. Principals person who killed or inflicted physical injuries upon his
adversary, or both combatants in any other cases

2. Accomplices as seconds

The person who killed or injured his adversary. If both survive, both will be liable
for the crime of duel as principals by direct participation. The seconds will be
held liable as accomplices.

Notes:
1. Duel: a formal or regular combat previously concerted between 2 parties
in the presence of 2 or more seconds of lawful age on each side, who make
the selection of arms and fix all the other conditions of the fight

2. If death results, the penalty is the same as that for homicide

While the agreement is to fight to the death, the law will disregard the intent to
kill, if only physical injuries is inflicted. The crime will not be classified as
attempted or frustrated homicide.

If the accused and the deceased, after a verbal heated argument in a bar, left
the place at the same time and pursuant to their agreement, went to the plaza
to fight each other to death with knives which they bought on the way, the facts
do not constitute the crime of dueling since there were no seconds who fixed


198
the conditions of the fight in a more or less formal manner. If one was killed,
the crime committed would be Homicide.

There is no such crime nowadays because people hit each other even without
entering into any pre-conceived agreement. This is an obsolete provision.

Article 261
CHALLENGING TO A DUEL

Acts punishable:
1. Challenging another to a duel

2. Inciting another to give or accept a challenge to a duel

3. Scoffing at or decrying another publicly for having refused to
accept a challenge to fight a duel

Persons liable:
1. Challenger

2. Instigators

If the challenge is only to fight, without the challenger having in mind a formal
combat to be agreed upon with the assistance of seconds as contemplated under
the law, the crime committed will only be grave or light threat as the case may
be.

Illustration:

If one challenges another to a duel by shouting Come down, Olympia, let us
measure your prowess. We will see whose intestines will come out. You are a
coward if you do not come down, the crime of challenging to a duel is not
committed. What is committed is the crime of light threats under Article 285,
paragraph 1 of the Revised Penal Code.

PHYSICAL INJURIES

Article 262
MUTILATION

Kinds of Mutilation

1. Intentionally mutilating another by depriving him, totally or partially, of
some essential organ for reproduction

2. Intentionally making another mutilation, i.e. lopping, clipping off any part
of the body of the offended party, other than the essential organ for
reproduction, to deprive him of that part of the body

Elements:


199
1. There be a castration i.e. mutilation of organs necessary for
generation

2. Mutilation is caused purposely and deliberately

Notes:

Mutilation is the lopping or clipping off of some part of the body.

The intent to deliberately cut off the particular part of the body that was
removed from the offended party must be established. If there is no intent to
deprive victim of particular part of body, the crime is only serious physical injury.

The common mistake is to associate this with the reproductive organs only.
Mutilation includes any part of the human body that is not susceptible to grow
again.

If what was cut off was a reproductive organ, the penalty is much higher than
that for homicide.

This cannot be committed through criminal negligence.

1. In the first kind of mutilation, the castration must be made purposely.
Otherwise, it will be considered as mutilation of the second kind

2. Mayhem: refers to any other intentional mutilation

Article 263
SERIOUS PHYSICAL INJURIES

How Committed
1. Wounding

2. Beating

3. Assaulting

4. Administering injurious substances

In one case, the accused, while conversing with the offended party, drew the
latters bolo from its scabbard. The offended party caught hold of the edge of
the blade of his bolo and wounded himself. It was held that since the accused
did not wound, beat or assault the offended party, he can not be guilty of
serious physical injuries.

What are serious physical injuries:

1. Injured person becomes insane, imbecile, impotent or blind

2. Injured person

a. loses the use of speech or the power to hear or to smell, loses
an eye, a hand, foot, arm or leg


200

b. loses the use of any such member

c. becomes incapacitated for the work in which he had been
habitually engaged

3. Injured person

a. becomes deformed

b. loses any other member of his body

c. loses the use thereof

d. becomes ill or incapacitated for the performance of the work
in which he had been habitually engaged in for more than 90
days

4. Injured person becomes ill or incapacitated for labor for more
than 30 days (but not more than 90 days)

Notes:

The crime of physical injuries is a crime of result because under our laws the
crime of physical injuries is based on the gravity of the injury sustained. So this
crime is always consummated.

The reason why there is no attempted or frustrated physical injuries is because
the crime of physical injuries is determined on the gravity of the injury. As long
as the injury is not there, there can be no attempted or frustrated stage thereof.

1. Serious physical injuries may be committed through reckless imprudence
or simple imprudence

2. There must be no intent to kill

3. Impotent should include inability to copulate and sterility

4. Blindness requires lost of vision in both eyes. Mere weakness in vision is
not contemplated

5. Loss of power to hear must involve both ears. Otherwise, it will be
considered as serious physical injuries under par 3

6. Loss of use of hand or incapacity of usual work in par 2 must be
permanent

7. Par 2 refers to principal members of the body. Par 3 on the other hand,
covers any other member which is not a principal part of the body. In this
respect, a front tooth is considered as a member of the body, other than a
principal member

8. Deformity: means physical ugliness, permanent and definite abnormality.
Not curable by natural means or by nature. It must be conspicuous and


201
visible. Thus, if the scar is usually covered by a dress, it would not be
conspicuous and visible

9. The loss of 3 incisors is a visible deformity. Loss of one incisor is not.
However, loss of one tooth which impaired appearance is a deformity

10. Deformity by loss of teeth refers to injury which cannot be impaired by
the action of the nature

11. Loss of both outer ears constitutes deformity and also loss of the power to
hear. Meanwhile, loss of the lobule of the ear is only a deformity

12. Loss of the index and middle fingers is either a deformity or loss of a
member, not a principal one of his body or use of the same

13. Loss of the power to hear in the right ear is considered as merely loss of
use of some other part of the body

14. If the injury would require medical attendance for more than 30 days, the
illness of the offended party may be considered as lasting more than 30
days. The fact that there was medical attendance for that period of time
shows that the injuries were not cured for that length of time
15. Under par 4, all that is required is illness or incapacity, not medical
attendance

16. In determining incapacity, the injured party must have an avocation at
the time of the injury. Work: includes studies or preparation for a
profession

17. When the category of the offense of serious physical injuries depends on
the period of the illness or incapacity for labor, there must be evidence of
the length of that period. Otherwise, the offense will only be considered
as slight physical injuries

18. There is no incapacity if the injured party could still engage in his work
although less effectively than before

19. Serious physical injuries is qualified when the crime is committed
against the same persons enumerated in the article on parricide or when
it is attended by any of the circumstances defining the crime of murder.
However, serious physical injuries resulting from excessive chastisement
by parents is not qualified serious physical injuries

Ortega Notes:

Classification of physical injuries:

(1) Between slight physical injuries and less serious physical injuries, you
have a duration of one to nine days if slight physical injuries; or 10 days
to 20 days if less serious physical injuries. Consider the duration of healing
and treatment.

The significant part here is between slight physical injuries and less
serious physical injuries. You will consider not only the healing duration


202
of the injury but also the medical attendance required to treat the injury.
So the healing duration may be one to nine days, but if the medical
treatment continues beyond nine days, the physical injuries would already
qualify as less serious physical injuries. The medical treatment may have
lasted for nine days, but if the offended party is still incapacitated for
labor beyond nine days, the physical injuries are already considered less
serious physical injuries.

(2) Between less serious physical injuries and serious physical injuries, you do
not consider the period of medical treatment. You only consider the
period when the offended party is rendered incapacitated for labor.

If the offended party is incapacitated to work for less than 30 days, even
though the treatment continued beyond 30 days, the physical injuries are
only considered less serious because for purposes of classifying the
physical injuries as serious, you do not consider the period of medical
treatment. You only consider the period of incapacity from work.

(3) When the injury created a deformity upon the offended party, you
disregard the healing duration or the period of medical treatment
involved. At once, it is considered serious physical injuries.

So even though the deformity may not have incapacitated the offended
party from work, or even though the medical treatment did not go beyond
nine days, that deformity will bring about the crime of serious physical
injuries.

Deformity requires the concurrence of the following conditions:

(1) The injury must produce ugliness;

(2) It must be visible;

(3) The ugliness will not disappear through natural healing process.

Illustration:

Loss of molar tooth This is not deformity as it is not visible.

Loss of permanent front tooth This is deformity as it is visible and
permanent.
Loss of milk front tooth This is not deformity as it is visible but will be
naturally replaced.

Question & Answer

The offender threw acid on the face of the offended party. Were it not for
timely medical attention, a deformity would have been produced on the face of
the victim. After the plastic surgery, the offended party was more handsome
than before the injury. What crime was committed? In what stage was it
committed?


203
The crime is serious physical injuries because the problem itself states that
the injury would have produced a deformity. The fact that the plastic surgery
removed the deformity is immaterial because in law what is considered is not
the artificial treatment but the natural healing process.

In a case decided by the Supreme Court, accused was charged with serious
physical injuries because the injuries produced a scar. He was convicted
under Article 263 (4). He appealed because, in the course of the trial, the
scar disappeared. It was held that accused can not be convicted of serious
physical injuries. He is liable only for slight physical injuries because the
victim was not incapacitated, and there was no evidence that the medical
treatment lasted for more than nine days.

Serious physical injuries is punished with higher penalties in the
following cases:

(1) If it is committed against any of the persons referred to in the crime of
parricide under Article 246;

(2) If any of the circumstances qualifying murder attended its commission.

Thus, a father who inflicts serious physical injuries upon his son will be liable for
qualified serious physical injuries.

Republic Act No. 8049 (The Anti-Hazing Law)

Hazing -- This is any initiation rite or practice which is a prerequisite for
admission into membership in a fraternity or sorority or any organization which
places the neophyte or applicant in some embarrassing or humiliating situations
or otherwise subjecting him to physical or psychological suffering of injury.
These do not include any physical, mental, psychological testing and training
procedure and practice to determine and enhance the physical and psychological
fitness of the prospective regular members of the below.

Organizations include any club or AFP, PNP, PMA or officer or cadet corps of the
CMT or CAT.

Section 2 requires a written notice to school authorities from the head of the
organization seven days prior to the rites and should not exceed three days in
duration.

Section 3 requires supervision by head of the school or the organization of the
rites.

Section 4 qualifies the crime if rape, sodomy or mutilation results therefrom, if
the person becomes insane, an imbecile, or impotent or blind because of such, if
the person loses the use of speech or the power to hear or smell or an eye, a
foot, an arm or a leg, or the use of any such member or any of the serious
physical injuries or the less serious physical injuries. Also if the victim is below
12, or becomes incapacitated for the work he habitually engages in for 30, 10, 1-
9 days.


204
It holds the parents, school authorities who consented or who had actual
knowledge if they did nothing to prevent it, officers and members who planned,
knowingly cooperated or were present, present alumni of the organization,
owner of the place where such occurred liable.

Makes presence a prima facie presumption of guilt for such.

Article 264
ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES

ELEMENTS:

1. That the offender inflicted upon another person any serious
physical injury

2. That it was done knowingly administering to him any injurious
substances or beverages or by taking advantage of his weakness
of mind of credulity

3. He had no intent to kill

Notes:

The article under consideration does not deal with a crime. It refers to means of
committing serious physical injuries.

1. It is frustrated murder when there is intent to kill

2. Administering means introducing into the body the substance, thus
throwing of the acid in the face is not contemplated

Article 265
LESS SERIOUS PHYSICAL INJURIES

ELEMENTS:

1. That the offended party is incapacitated for labor for 10 days or
more (but not more than 30 days), or needs medical attendance
for the same period of time

2. That the physical injuries must not be those described in the
preceding articles

Notes:
1. Circumstances qualifying the offense:

a. when there is manifest intent to insult or offend the injured person


205
b. when there are circumstances adding ignominy to the offense

c. when the victim is either the offenders parents, ascendants,
guardians, curators or teachers

d. when the victim is a person of rank or person in authority, provided
the crime is not direct assault

2. It falls under this article even if there was no incapacity but the medical
treatment was for 13 days

In this article, the offended party is incapacitated from work for ten (10) days or
more but not more than thirty (30) days. If the injury causes the illness of the
victim, the healing duration must be more than nine (9) days but not more than
thirty (30) days.

Article 265 is an exception to Article 48 in relation to complex crimes as the latter
only takes place in cases where the Revised Penal Code has no specific provision
penalizing the same with a definite, specific penalty. Hence, there is no complex
crime of slander by deed with less serious physical injuries but only less serious
physical injuries if the act which was committed produced the less serious
physical injuries with the manifest intent to insult or offend the offended party,
or under circumstances adding ignominy to the offense.

Article 266
SLIGHT PHYSICAL INJURIES

3 Kinds:

1. That which incapacitated the offended party for labor from 1-9
days or required medical attendance during the same period

2. That which did not prevent the offended party from engaging in
his habitual work or which did not require medical attendance
(ex. Black-eye)

3. Ill-treatment of another by deed without causing any injury (ex.
slapping but without causing dishonor)

This involves even ill-treatment where there is no sign of injury requiring medical
treatment.

Slapping the offended party is a form of ill-treatment which is a form of slight
physical injuries.

But if the slapping is done to cast dishonor upon the person slapped, the crime is
slander by deed. If the slapping was done without the intention of casting
dishonor, or to humiliate or embarrass the offended party out of a quarrel or
anger, the crime is still ill-treatment or slight physical injuries.

The crime is slight physical injury if there is no proof as to the period of the
offended partys incapacity for labor or of the required medical attendance.


206
Republic Act No. 7610 (Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act), in relation to murder,
mutilation or injuries to a child

The last paragraph of Article VI of Republic Act No. 7610, provides:

For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of the
Revised Penal Code for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion perpetua
when the victim is under twelve years of age.

The provisions of Republic Act No. 7160 modified the provisions of the Revised
Penal Code in so far as the victim of the felonies referred to is under 12 years of
age. The clear intention is to punish the said crimes with a higher penalty when
the victim is a child of tender age. Incidentally, the reference to Article 249 of
the Code which defines and penalizes the crime of homicide were the victim is
under 12 years old is an error. Killing a child under 12 is murder, not homicide,
because the victim is under no position to defend himself as held in the case of
People v. Ganohon, 196 SCRA 431.

For murder, the penalty provided by the Code, as amended by Republic Act No.
7659, is reclusion perpetua to death higher than what Republic Act no. 7610
provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as
amended, shall govern even if the victim was under 12 years of age. It is only in
respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and
of serious physical injuries in paragraph 1 of Article 263 of the Code that the
quoted provision of Republic Act No. 7160 may be applied for the higher penalty
when the victim is under 12 years old.

RAPE

ART 266-A
RAPE
The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape
as Crime Against Persons incorporated into Title 8 of the RPC to be
known as Chapter 3

ELEMENTS:
Rape is committed
1. By a man who have carnal knowledge of a woman under any of
the following circumstances:


207
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

d. when the offended party is under 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
par 1 hereof, shall commit an act of sexual assault by inserting

a. his penis into another persons mouth or anal orifice, or

b. any instrument or object, into the genital or anal orifice of
another person

Rape committed under par 1 is punishable by:
1. reclusion perpetua

2. reclusion perpetua to DEATH when
a. victim became insane by reason or on the occasion of rape

b. the rape is attempted and a homicide is committed by reason or on the
occasion thereof

3. DEATH when
a. homicide is committed

b. victim under 18 years and offender is:
i. parent
ii. ascendant
iii. step-parent
iv. guardian
v. relative by consanguinity or affinity with the 3
rd
civil degree or
vi. common law spouse of parent of victim

c. under the custody of the police or military authorities or any law
enforcement or penal institution

d. committed in full view of the spouse, parent or any of the children or
other relatives within the 3
rd
degree of consanguinity

e. 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

f. a child below 7 years old

g. offender knows he is afflicted with HIV or AIDS or any other sexually
transmissible disease and the virus is transmitted to the victim


208
h. offender; member of the AFP, or para-military units thereof, or the PNP,
or any law enforcement agency or penal institution, when the offender
took advantage of his position to facilitate the commission of the crime

i. victim suffered permanent physical mutilation or disability

j. the offender knew of the pregnancy of the offended party at the time of
the commission of the crime; and

k. when the offender knew of the mental disability, emotional disorder
and/or physical handicap or the offended party at the time of the
commission of the crime

Rape committed under par 2 is punishable by:
1. prision mayor

2. prision mayor to reclusion temporal
a. use of deadly weapon or

b. by two or more persons

3. reclusion temporal when the victim has become insane

4. reclusion temporal to reclusion pepetua rape is attempted and
homicide is committed

5. reclusion perpetua homicide is committed by reason or on occasion of
rape

6. reclusion temporal committed with any of the 10 aggravating
circumstances mentioned above

Notes:
1. Dividing age in rape:
a. less than 7 yrs old, mandatory death

b. less than 12 yrs old, statutory rape

c. less than 18 yrs old and there is relationship (e.g. parent etc); mandatory
death

Because of this amendment which reclassified rape as a crime against persons,
an impossible crime may now be committed in case of rape; that is, if there is
inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.

The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new
doctrine in Philippine penal law insofar as the crime of rape is concerned, as it
finally did away with frustrated rape and allowed only attempted rape and
consummated rape to remain in our statute books.

The act of touching should be understood as inherently part of the entry of the
penis into the labia of the female organ and not the mere touching alone of the
mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he


209
outer lips of the female organ) must be entered for rape to be consummated,
and not merely for the penis to stroke the surface of the female organ. Thus,
grazing of the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)

Classification of rape

(1) Traditional concept under Article 335 carnal knowledge with a
woman against her will. The offended party is always a woman and the
offender is always a man.
(2) Sexual assault - committed with an instrument or an object or use of
the penis with penetration of mouth or anal orifice. The offended party or
the offender can either be man or woman, that is, if a woman or a man
uses an instrument on anal orifice of male, she or he can be liable for
rape.

Since rape is not a private crime anymore, it can be prosecuted even if the
woman does not file a complaint.

If carnal knowledge was made possible because of fraudulent machinations and
grave abuse of authority, the crime is rape. This absorbs the crime of qualified
and simple seduction when no force or violence was used, but the offender
abused his authority to rape the victim.

Under Article 266-C, the offended woman may pardon the offender through a
subsequent valid marriage, the effect of which would be the extinction of the
offenders liability. Similarly, the legal husband may be pardoned by forgiveness
of the wife provided that the marriage is not void ab initio. Obviously, under the
new law, the husband may be liable for rape if his wife does not want to have
sex with him. It is enough that there is indication of any amount of resistance as
to make it rape.

Incestuous rape was coined in Supreme Court decisions. It refers to rape
committed by an ascendant of the offended woman. In such cases, the force
and intimidation need not be of such nature as would be required in rape cases
had the accused been a stranger. Conversely, the Supreme Court expected that
if the offender is not known to the woman, it is necessary that there be evidence
of affirmative resistance put up by the offended woman. Mere no, no is not
enough if the offender is a stranger, although if the rape is incestuous, this is
enough.

The new rape law also requires that there be a physical overt act manifesting
resistance, if the offended party was in a situation where he or she is incapable
of giving valid consent, this is admissible in evidence to show that carnal
knowledge was against his or her will.

When the victim is below 12 years old, mere sexual intercourse with her is
already rape. Even if it was she who wanted the sexual intercourse, the crime
will be rape. This is referred to as statutory rape.

If the victim however is exactly twelve (12) years old (she was raped on her
birthday) or more, and there is consent, there is no rape. However, Republic
Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year
old and the carnal act was with her consent as long as she falls under the


210
classification of a child exploited in prostitution and other sexual abuse, the crime
is rape.

In other cases, there must be force, intimidation, or violence proven to have
been exerted to bring about carnal knowledge or the woman must have been
deprived of reason or otherwise unconscious.

It is not necessary that the force or intimidation employed be so great or of such
character as could not be resisted it is only necessary that it be sufficient to
consummate the purpose which the accused had in mind. (People vs. Canada,
253 SCRA 277).

Carnal knowledge with a woman who is asleep constitutes Rape since she was
either deprived of reason or otherwise unconscious at that time. (People vs.
Caballero, 61 Phil. 900).

Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded
or idiotic woman is Rape pure and simple. The deprivation of reason
contemplated by law need not be complete; mental abnormality or deficiency is
sufficient.

Where the victim is over 12 years old, it must be shown that the carnal
knowledge with her was obtained against her will. It is necessary that there be
evidence of some resistance put up by the offended woman. It is not, however,
necessary that the offended party should exert all her efforts to prevent the
carnal intercourse. It is enough that from her resistance, it would appear that
the carnal intercourse is against her will.

Mere initial resistance, which does not indicate refusal on the part of the
offended party to the sexual intercourse, will not be enough to bring about the
crime of rape.
Note that it has been held that in the crime of rape, conviction does not require
medico-legal finding of any penetration on the part of the woman. A medico-
legal certificate is not necessary or indispensable to convict the accused of the
crime of rape.

It has also been held that although the offended woman who is the victim of the
rape failed to adduce evidence regarding the damages to her by reason of the
rape, the court may take judicial notice that there is such damage in crimes
against chastity. The standard amount given now is P 50,000.00, with or
without evidence of any moral damage.

An accused may be convicted of rape on the sole testimony of the offended
woman. It does not require that testimony be corroborated before a conviction
may stand. This is particularly true if the commission of the rape is such that the
narration of the offended woman would lead to no other conclusion except that
the rape was committed.

Illustration:
Daughter accuses her own father of having raped her.

Allegation of several accused that the woman consented to their sexual
intercourse with her is a proposition which is revolting to reason that a woman


211
would allow more than one man to have sexual intercourse with her in the
presence of the others.

It has also been ruled that rape can be committed in a standing position because
complete penetration is not necessary. The slightest penetration contact with
the labia will consummate the rape.

On the other hand, as long as there is an intent to effect sexual cohesion,
although unsuccessful, the crime becomes attempted rape. However, if that
intention is not proven, the offender can only be convicted of acts of
lasciviousness.

The main distinction between the crime of attempted rape and acts of
lasciviousness is the intent to lie with the offended woman.

In a case where the accused jumped upon a woman and threw her to the
ground, although the accused raised her skirts, the accused did not make any
effort to remove her underwear. Instead, he removed his own underwear and
placed himself on top of the woman and started performing sexual movements.
Thereafter, when he was finished, he stood up and left. The crime committed is
only acts of lasciviousness and not attempted rape. The fact that he did not
remove the underwear of the victim indicates that he does not have a real
intention to effect a penetration. It was only to satisfy a lewd design.

The new law, R.A. 8353, added new circumstance that is, when carnal
knowledge was had by means of fraudulent machinations or grave abuse of
authority. It would seem that if a woman of majority age had sexual intercourse
with a man through the latters scheme of pretending to marry her which is the
condition upon which the woman agreed to have sex with him, manipulating a
sham marriage, the man would be guilty of Rape under this Section. So also, a
prostitute who willingly had sexual congress with a man upon the latters
assurance that she would be paid handsomely, may be guilty of Rape if later on
he refuses to pay the said amount.

A person in authority who maneuvered a scheme where a woman landed
in jail, and who upon promise of being released after having sex with the officer,
willingly consented to the sexual act, may also be found guilty of Rape under this
new section.

In Rape cases, court must always be guided by the following
principles:

1. An accusation of rape can be made with facility; it is difficult to prove, but
more difficult for the person accused, though innocent, to disprove;

2. In view of the intrinsic nature of the crime where only two persons are
usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and

3. 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. (People vs. Ricafort)

Callanta Notes - Crim 2

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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