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Criminal Law Review 2008

UNIVERSITY OF SAN CARLOS


COLLEGE OF LAW

Criminal Law Review


(BOOK II)
JUDGE PAREDES and PROF. ORTEGAs Lecture
Fusion
(with UPDATES IN SUPREME COURT RULINGS)
MARIA IODINE TIROL ANDAN
CARLOS G. REYNES JR.
C. Ang
A. Blanco J. Calipayan
C. Cua
R. Mangubat
Enhanced by:

MILITIS LEX FRATERNITY

(Copy-pasting and Editing done by: EdLER)

Important Note:
The ORTEGA SUPPLEMENT (in smaller font) may merely repeat the discussion of Judge
Paredes
(for exam purposes, in case of conflict PAREDES notes PREVAILS)

TITLE I

CRIMES AGAINST NATIONAL SECURITY AND


THE LAW OF NATIONS
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.
Almost all of these are crimes committed in times of war, except the following,
which can be committed in times of peace:

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(1)

Espionage, under Article 114 This is also covered by Commonwealth Act


No. 616 which punishes conspiracy to commit espionage. This may be
committed both in times of war and in times of peace.

(2)

Inciting to War or Giving Motives for Reprisals, under Article 118 This can
be committed even if the Philippines is not a participant. Exposing the
Filipinos or their properties because the offender performed an
unauthorized act, like those who recruit Filipinos to participate in the gulf
war. If they involve themselves to the war, this crime is committed.
Relevant in the cases of Flor Contemplacion or Abner Afuang, the police
officer who stepped on a Singaporean flag.

(3)

Violation of Neutrality, under Article 119 The Philippines is not a party to a


war but there is a war going on. This may be committed in the light of the
Middle East war.

Chapter One
CRIMES AGAINST NATIONAL SECURITY
When we say national security, it should be interpreted as including rebellion,
sedition and subversion. The Revised Penal Code does not treat rebellion, sedition
and subversion as crimes against national security, but more of crimes against
public order because during the time that the Penal Code was enacted, rebellion
was carried out only with bolos and spears; hence, national security was not really
threatened. Now, the threat of rebellion or internal wars is serious as a national
threat.
Section One. Treason and espionage
ARTICLE 114
TREASON
A. Elements:
1. Offender owes allegiance to the Government of the Philippine Islands;
- Offender may be a citizen or resident alien
- allegiance may be permanent or temporary
- treason by Filipino citizen can be committed outside the Philippines.
2. That there is a war in which the Philippines is involved;
3. The offender either:
a) levies war against the Government, or
b) adheres to their enemies, giving them aid or comfort within the Philippine
Islands or elsewhere.
B. Terms Defined
1.

Treason
Treason is a breach of allegiance to a government, committed by a person who
owes allegiance to it. Allegiance is meant the obligation of fidelity and
obedience the individuals owes to the government or sovereign under which
he live or to their sovereign, in return for the protection they receive.

2.

Levying War

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Levying of war requires the concurrence of two things: (1) that there be an
actual assembling of men, (2) for the purpose of executing a treasonable
design by force. A formal declaration of war is not necessary. Actual hostilities
determine the date of the commencement of the war. Levying of war must be
in collaboration with a foreign enemy.
3.

Adherence to the Enemy


Means intent to betray. There is adherence to the enemy when a citizen
intellectually or emotionally favors the enemy and harbors sympathies or
convictions disloyal to his countrys policy or interest. Adherence alone
without aid and comfort does not constitute treason, although it may be
inferred from the overt acts of treason committed.

4.

Aid or comfort
Means an act which strengthens or tends to strengthen the enemy in the
conduct of war against the traitors country and an act which weakens or tends
to weaken the power of the traitors country to resist or to attack the enemy.
(e.g. Giving information to, or commandeering foodstuffs for, the enemy is
evidence of both adherence and aid or comfort, Furnishing the enemy with
arms, troops, supplies, information, or means of transportation.) The aid and
comfort must be given to the enemy by some kind of action. It must be a deed
or physical activity, not merely a mental operation. It must be an act that has
passed from the realm of thought into the realm of action. The aid or comfort
given to the enemies must be after the declaration of war. The enemies must
be the subject of a foreign power.

C. Distinctions
Treason distinguished from Rebellion
An act levying war to help the foreign enemy is treason; otherwise, it would be
rebellion. In treason, the purpose is to deliver the government to the enemy or
to pave the way for the coming of the enemy, whereas in rebellion, the
purpose is to substitute the government with their own.
2. Treason distinguished from Sedition
Treason is the violation by a subject of his allegiance to his sovereign or the
supreme authority of the state, whereas sedition is the raising of commotions
or disturbances in the state.
3. Treason distinguished from Espionage
Espionage is a crime not conditioned by the citizenship of the offender. This is
also true as regards treason, in view of the amendment to Art. 114.
But treason is committed only in time of war while espionage may be
committed both in time of peace and in time of war. Treason is limited in two
ways committing the crime: levying war, and adhering to the enemy giving
them aid or comfort, while espionage may be committed in many ways. (Com.
Act. No. 616).
1.

D. Evidences required for conviction of treason


1. testimony of at least two witnesses to the same overt act (the two-witness
rule), or
2. on confession of the accused in open court
E.

Defenses to the charge of treason


1. Obedience to a de facto government
2. Duress or uncontrollable fear

F.

There must be an actual assembling of men.

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The actual enlistment of men to serve against the government does not
amount to levying of war, because there is no actual assembling of men.
But if a body of men be actually assembled for the purpose of effecting by
force a treasonable design, all those who perform any part, however minute, or
however remote from the scene of action, and who are actually leagued in the
general conspiracy, are to be considered as traitors.
H.

The war must be directed against the government.


The levying of war must be with the intent to overthrow the government
as such, not merely to resist a particular statute or repel a particular officer.

I.

Membership in the police force during occupation is not treason; but active
participation with the enemies in the apprehension of guerillas and infliction
of ill-treatments make such member liable for treason.

J.

Adherence may be proved:


(1) by one witness, (2) from the nature of the act itself, or (3) form the
circumstances surrounding the act.
It seems obvious that adherence to the enemy, in the sense of a disloyal
state of mind, cannot be, and is not required to be, proved by deposition of two
witness because what is designed in the mind of the accused never is
susceptible of proof by direct testimony.

K.

Aggravating circumstances in treason.


(1) Cruelty and
(2) Ignominy.

ARTICLE 115
CONSPIRACY AND PROPOSAL TO COMMIT TREASON
How Committed
A. Conspiracy to commit treason is committed
When in time of war, two or more person come to an agreement to levy war
against the government or to adhere to the enemies and to give them aid or comfort,
and decide to commit it.
B.

Proposal to commit treason is committed


When in time of war, 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 or persons.
N.B.
o If actual acts of treason are committed after the conspiracy or after
the proposal is accepted, the crime committed will be treason, and the
conspiracy or proposal is considered as a means in the commission
thereof
o The two witness rule does not apply to these felonies because they are
separate and distinct from treason.
C.

Conspiracy or proposal as a felony.


Although the general rule is that conspiracy and proposal to commit a felony
is not punishable (Art. 8, RPC), under Art. 115 the mere conspiracy to commit

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treason is a felony. The mere proposal to commit treason is also a felony. Both are
punishable under Art. 115.
The reason is that in treason the very existence of the state is endangered.
ARTICLE 116
MISPRISION OF TREASON
A. Elements
1. That the offender must be owing allegiance to the Government, not a
foreigner,
2. He has knowledge of any conspiracy (to commit treason) against
Government,
3. 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.
B. Reason why Art. 20 does not apply
1. This is a special application
2. The security of the State is more paramount than mere relationship
3. It is a separate and distinct offense
C. Misprision of treason cannot be committed by a resident alien. The offender must
be owing allegiance to the Government, without being a foreigner.
D. The conspiracy is one to commit treason. The phrase having knowledge of any
conspiracy against them has reference to conspiracy to commit treason defined in Art. 115.
E.
Art. 116 does not apply when the crime of treason is already committed by
someone and the accused does not report its commission to the proper authority. This is so
because Art. 116 speaks of knowledge of treason actually committed by another.
F. The offender in misprision of treason is punished as an accessory to treason.
However, the offender under Art. 116 is a principal in the crime of misprision of treason.
Misprision of treason is a separate and distinct offense from the crime of treason.
G.
Art. 116 is an exception to the rule that mere silence does not make a person
criminally liable. The provision of Art. 116 is an exception to the general rule laid down in
connection with Art. 19, RPC that a person who keeps silent as to what he knows about the
perpetration of an offense is not criminally liable, either as a principal, or as an accomplice, or
as an accessory.
H. Take note of PD 1829 Obstruction of Justice.
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.
The essence of the crime is that there are persons who conspire to commit treason
and the offender knew this and failed to make the necessary report to the
government within the earliest possible time. What is required is to report it as
soon as possible. The criminal liability arises if the treasonous activity was still at
the conspiratorial stage. Because if the treason already erupted into an overt act,
the implication is that the government is already aware of it. There is no need to
report the same. This is a felony by omission although committed with dolo, not
with culpa.

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The persons mentioned in Article 116 are not limited to mayor, fiscal or governor.
Any person in authority having equivalent jurisdiction, like a provincial
commander, will already negate criminal liability.
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.
In the 1994 bar examination, a problem was given with respect to misprision of
treason. The text of the provision simply refers to a conspiracy to overthrow the
government. The examiner failed to note that this crime can only be committed in
times of war. The conspiracy adverted to must be treasonous in character. In the
problem given, it was rebellion. A conspiracy to overthrow the government is a
crime of rebellion because there is no war. Under the Revised Penal Code, there is
no crime of misprision of rebellion.
ARTICLE 117
ESPIONAGE
A. Definition
Espionage is the offense of gathering, transmitting, or losing information
respecting the national defense with intent or reason to believe that the information is
to be used to the injury of the Rep of the Phil. or to the advantage of any foreign
nation.
B. Acts Punishable
1. By entering, without authority therefore, a warship, fort, or naval or military
establishment or reservation to obtain any information, plans, photographs, or other
data of a confidential nature relative to the defense of the Philippine Archipelago; or
Elements:
(a) That the offender enters any of the places mentioned therein;
(b) That he has no authority therefore;
(c) That his purpose is to obtain information, planes, photographs or
other data of a confidential nature relative to the defense of the Philippines.
2. Being in possession, by reason of the public office he holds, of the articles,
data, or information referred to in the preceding paragraph, discloses their contents to
a representative of a foreign nation.
Elements:
(a) That the offender is a public officer;
(b) That he has in his possession the articles, data or information
referred to in paragraph No. 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.
The penalty next higher in degree shall be imposed if the offender be a public
officer or employee.
C. To be liable under par. 1, the offender must have the intention to obtain
information relative to the defense of the Philippines.
N.B. It is not necessary that information, etc. is obtained.

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D. Persons liable in two ways of committing espionage.


Under par. 1 of Art. 117, the offender is any person, whether a citizen or a
foreigner, a private individual or a public officer.
Under par. 2, the offender must be a public officer who has in his possession
the article, date, or information by reason of the public office he holds.
E. Acts punishable under CA 616
1. Unlawfully obtaining or permitting to be obtained information affecting
national defense;
2. The unlawful disclosing of information relative to the defense of the
Philippines, committed in time of peace or in time of war;
3. Disloyal acts in time of peace like causing insubordination, disloyalty or
mutiny in the armed forces of the Philippines;
4. Disloyal acts in time of was like conveying false reports with intent to
interfere with the operation of the armed forces of the philippines or
willful obstruction to the recruitment or enlistment of services;
5. Conspiracy to violate any of the said acts;
6. harboring or concealing violators of the law; and
7. Photographing from an aircraft vital military information.
Section Two. Provoking war and disloyalty in case of war
What are the crimes classified as provoking war and disloyalty in case of war?
They are:
1. Inciting to war or giving motives for reprisals.
2. Violation of neutrality.
3. Correspondence with hostile country.
4. Flight to enemys country.
ARTICLE 118
INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS
A. Elements
1. That the offender performs unlawful or unauthorized acts;
2. That such acts provoke or gives occasion for a war involving or liable to
involve the Philippines or exposes Filipino citizens to reprisals on their
persons or property.
N.B.
This is committed in times of peace.
The crime is aggravated if committed by any public officer or employee.
The Intention of the offender is immaterial.
ARTICLE 119
VIOLATION OF NEUTRALITY
A. Neutrality defined
A nation or power which takes no part in a contest of arms going on between
others is referred to as neutral.
B. Elements
1. There is a war in which the Philippines is not involved;

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2.
3.

There is a regulation issued by competent authority for the purpose of


enforcing neutrality;
The offender violates such regulation.

C. There must be a regulation issued by competent authority for the enforcement of


neutrality. It is the violation of such regulation which constitutes the crime.
ARTICLE 120
CORRESPONCE WITH HOSTILE COUNTRY
A. Elements
1. It is in time of war in which the Philippines is involved;
2. Offender makes correspondence with an enemy country or territory
occupied by enemy troops;
3. The correspondence is either:
a. prohibited by the Government;
b. carried on in ciphers or conventional signs; and
c. containing notice or information which might be useful to the
enemy
N.B.
The crime is aggravated if the offender intended to aid the enemy by giving
such notice or information.
ARTICLE 121
FLIGHT TO ENEMYS COUNTRY
A. Elements
1. There is a war in which the Philippines is involved;
2. The offender owes allegiance to the Philippines;
3. Offender attempts to flee or go to an enemy country
4. That going to the enemy country is prohibited by competent authority.

N.B.
o

This felony may also be committed by an alien resident as he owes


allegiance to the Government even though temporary in nature.

Section Three. Piracy and mutiny on the high seas


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 122
PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS
A. Terms defined
1. Piracy

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Piracy is robbery or forcible depredation on the high seas, without


lawful authority and done animo furandi and in the spirit and intention of
universal hostility.
2. Mutiny
Mutiny is unlawful resistance to a superior officer, as the raising of
commotion and disturbances onboard a ship against the authority of the
commander.
3. High Seas
Any part of the sea coast which are without the boundaries of the lowwater mark, although such waters may be in the roadstead or within
jurisdictional limit of a foreign government.
B. Modes of committing piracy under RPC
1. By attacking or seizing a vessel on the high seas.
2. By seizing in the vessel while on the high seas the whole or part of its
cargo, its equipment or personal belongings of its competent passengers.
C. Elements
1. The vessel is on the high seas;
2. Offenders are not members of its complement or passengers of the vessel;
3. That the offender (1) attacks or seizes that vessel, or (2) seizes the whole or
part of its cargo, its equipment or personal belongings of its competent passengers.
D. Piracy distinguished from Robbery on the High Seas
When the offender is a member of the complement or a passenger of the
vessel and there is violence against or intimidation of persons or force upon things in
taking the property in the vessel, it is common robbery, if the offender is an outsider, it
will be piracy.
E. Piracy distinguished from Mutiny
Both are against the law of nations. In piracy, the attack of the vessel comes
from the outside. The offenders are strangers to the vessel, that is, neither passenger
nor members of the crew. Otherwise the felony is mutiny. Intent to gain is material in
piracy and immaterial in mutiny.
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.
Distinction between mutiny and piracy (ORTEGA)
(1)

As to offenders
Mutiny is committed by members of the complement or the passengers of
the vessel.
Piracy is committed by persons who are not members of the complement
or the passengers of the vessel.

(2)

As to criminal intent
In mutiny, there is no criminal intent.
In piracy, the criminal intent is for gain.
F.

PD 532 ANTI-PIRACY AND HIGHWAY ROBBERY LAW OF 1974


Sec. 2. Definition of Terms. - The following terms shall mean and be
understood, as follows:
a. Philippine Waters. - It shall refer to all bodies of water, such as but not
limited to, seas, gulfs, bays around, between and connecting each of the Islands of

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the Philippine Archipelago, irrespective of its depth, breadth, length or dimension,


and all other waters belonging to the Philippines by historic or legal title, including
territorial sea, the sea-bed, the insular shelves, and other submarine areas over
which the Philippines has sovereignty or jurisdiction.
b. Vessel. - Any vessel or watercraft used for transport of passengers and
cargo from one place to another through Philippine Waters. It shall include all
kinds and types of vessels or boats used in fishing.
d. Piracy. - Any attack upon or seizure of any vessel, or the taking away of the
whole or part thereof or its cargo, equipment, or the personal belongings of its
complement or passengers, irrespective of the value thereof, by means of violence
against or intimidation of persons or force upon things, committed by any person,
including a passenger or member of the complement of said vessel, in Philippine
waters, shall be considered as piracy. The offenders shall be considered as pirates
and punished as hereinafter provided.
Sec. 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery/brigandage. - Any person who knowingly and in any manner aids
or protects pirates or highway robbers/brigands, such as giving them information
about the movement of police or other peace officers of the government, or acquires
or receives property taken by such pirates or brigands or in any manner derives any
benefit therefrom; or any person who directly or indirectly abets the commission of
piracy or highway robbery or brigandage, shall be considered as an accomplice of
the principal offenders and be punished in accordance with the Rules prescribed by
the Revised Penal Code.
It shall be presumed that any person who does any of the acts provided in this
Section has performed knowingly, unless the contrary is proven.
Pp v CATANTAN
G.R. No. 118075 Sept. 5, 1997
Accused Catantan was charged with violation of PD 532 for assaulting the
Pilapil brothers (who were fishing) and seizing their boat. Catantan claimed that the
crime was grave coercion. The Supreme Court ruled that the act of the accused in
using force and intimidation in seizing the fishing boat of Pilapil and thereafter
leaving the passengers at sea was in violation of PD 532 and not grave coercion
G. RA 6235 ACTS INIMICAL TO CIVIL AVIATION
Sec. 1. It shall be unlawful for any person to compel a change in the course or
destination of an aircraft of Philippine registry, or to seize or usurp the control
thereof, while it is in flight.
An aircraft is in flight from the moment all its external doors are closed
following embarkation until any of such doors is opened for disembarkation.
It shall likewise be unlawful for any person to compel an aircraft of foreign
registry to land in Philippine territory or to seize or usurp the control thereof while
it is within the said territory.
Sec. 3. It shall be unlawful for any person, natural or juridical, to ship, load
or carry in any passenger aircraft operating as a public utility within the Philippines,
and explosive, flammable, corrosive or poisonous substance or material.
Originally, the crimes of piracy and mutiny can only be committed in the
high seas, that is, outside Philippine territorial waters. But in August 1974,
Presidential Decree No. 532 (The Anti-Piracy and Anti-Highway Robbery Law
of 1974) was issued, punishing piracy, but not mutiny, in Philippine
territorial waters. Thus came about two kinds of piracy: (1) that which is
punished under the Revised Penal Code if committed in the high seas; and
(2) that which is punished under Presidential Decree No. 532 if committed
in Philippine territorial waters.

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Amending Article 122, Republic Act No. 7659 included therein piracy in
Philippine waters, thus, pro tanto superseding Presidential Decree No. 532.
As amended, the article now punishes piracy, as well as mutiny, whether
committed in the high seas or in Philippine territorial waters, and the
penalty has been increased to reclusion perpetua from reclusion temporal.
But while under Presidential Decree No. 532, piracy in Philippine waters
could be committed by any person, including a passenger or member of
the complement of a vessel, 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.
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 of force upon things, the crime of piracy
cannot be committed, but only theft.
Questions & Answers
Could theft be committed on board a vessel?
Yes. The essence of piracy is one of robbery.
ARTICLE 123
QUALIFIED PIRACY
A. Special Qualifying circumstances
1. Seizure of a vessel by boarding or firing upon the same;
2. Abandonment of their victims without means of saving themselves; or
3. Crime is accompanied by murder, homicide, physical injuries or rape.
B. Related Special Laws

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1.
2.

RA 6235 An Act Prohibiting Certain Acts Inimical to Civil Aviation.


(Hijacking)
PD 532 Piracy in Philippine Waters

C. Any person who aids or protects pirates or abets the commission of piracy shall be
considered as an accomplice.
If any of the circumstances in Article123 is present, piracy is qualified. Take note
of the specific crimes involve in number 4 c (murder, homicide, physical injuries or
rape). When any of these crimes accompany piracy, there is no complex crime.
Instead, there is only one crime committed qualified piracy. Murder, rape,
homicide, physical injuries are mere circumstances qualifying piracy and cannot
be punished as separate crimes, nor can they be complexed with piracy.
Although in Article 123 merely refers to qualified piracy, there is also the crime of
qualified mutiny. Mutiny is qualified under the following circumstances:
(1)

When the offenders abandoned the victims without means of saving


themselves; or

(2)

When the mutiny is accompanied by rape, murder, homicide, or physical


injuries.

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

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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 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 hijacking. 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?

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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?
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 hijacking 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.

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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.
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.

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TITLE TWO

CRIMES AGAINST THE FUNDAMENTAL LAWS


OF THE STATE
NOTA BENE:
Q: what are these crimes? There are 10 crimes:
A:
1. arbitrary detention
2. delay in the delivery of detained persons to the proper judicial authority
3. delaying release
4. expulsion
5. violation of domicile
6. search warrants maliciously obtained and abuse in the service of those legally
obtained
7. searching domicile without witnesses
8. prohibition, interruption and dissolution of peaceful meetings
9. interruption of religious worship
10. offending the religious feelings
NOTA BENE:
ALL THE ENUMERATED CRIMES, EXCEPT offending religious feelings, CAN ONLY
BE COMMITTED BY A PUBLIC OFFICER OR EMPLOYEE.
Q: why are these considered as crimes against the fundamental laws of the state?
A: because these acts are VIOLATIONS ON CERTAIN PROVISIONS
CONSTITUTION specifically THE BILL OF RIGHTS

OF

THE

Crimes under this title are those which violate the Bill of Rights accorded to the
citizens under the Constitution. 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.
In its counterpart in Title IX (Crimes Against Personal Liberty and Security), the
offenders are private persons. 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.

Chapter One
ARBITRARY DETENTION, ETC
Section One. Arbitrary detention and expulsion

Classes of arbitrary detention:


1. Arbitrary detention by detaining a person without legal grounds (Art. 124)
2. Delay in thedelivery of detained persons to the proper judicial authorities. (Art.
125)
3. Delaying release. (Art. 126)

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ARTICLE 124
ARBITRARY DETENTION.
A. Terms defined
1. Arbitrary Detention
Deprivation by a public officer of the liberty of person without legal
ground. If the offender is a private individual the offense illegal detention. But
when a private individual connives with a public officer, the crime is arbitrary
detention due to conspiracy and the higher penalty is imposed. The crime of
illegal detention is absorbed in arbitrary detention.
2. Detention
When there is a restraint on his person not restraint of movement.
3. Warrant of arrest
A document issued by the court directing a police officer to put into
custody the person whose name appears therein. An officer armed with a
warrant of arrest cannot be charged under this provision.
A warrant of arrest will not expire unlike a search warrant which
would prescribe within 10 days.
4. In his presence
Sense of sight is not required. Other senses can be used. - When the
arresting officer sees at a distance, or hears the disturbance created nearby
and proceeds at once to the scene thereof.
5. Personal knowledge
Arrest not necessarily be done immediately after the commission of
the crime but may be done later. But the arresting officer must have witnessed
the commission of the crime. E.g. While manning traffic, the arresting officer
(P) saw A snatch the necklace of B. P chased A but was left behind because he
was slow. Later in the afternoon P saw A walking and thus arrested him. The
arrest is considered valid because the time lapsed did not exceed one day or
24 hours.
B. Elements
1. Offender is a public officer or employee (a person who has the authority to
detain the person)
2. He detains a person
3. The detention is without legal grounds
C. Warrantless Arrests when lawful
1. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
2. When the offense has in fact been committed and he has personal
knowledge of the facts that the person to be arrested has committed it; and
3. When the person to be arrested is an escaped prisoner
D. Legal grounds for detention
1. The commission of a crime;
2. Violent insanity or other ailment requiring compulsory confinement of
the patient in a hospital e.g leprosy.

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NOTA BENE:
Q: What is the criminal design in article 124?
A: detaining a person WITHOUT LEGAL GROUNDS
Q: Are there instances or examples where there is no arbitrary detention although there is
detention?
A: yes
1. In unlawful arrest, a person is detained without legal grounds but the purpose of
the detention is to bring him to the police station. The crime committed here is
not arbitrary detention but UNLAWFUL ARREST because the detention is
incidental to some other crime.
2. in forcible abduction, there is also detention but WITH LEWD DESIGN
3. In grave coercion, there is detention forcing the detained person to do something
against his will. There is no arbitrary detention because detention was merely
incidental to some other crime.
Distinction between arbitrary detention and illegal detention
1.

In arbitrary detention -The principal offender must be a public officer. Civilians can 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.

Note that in the crime of arbitrary detention, although the offender is a public
officer, not any public officer can commit this crime. Only those public officers
whose official duties carry with it the authority to make an arrest and detain
persons can be guilty of this crime. So, if the offender does not possess such
authority, the crime committed by him is illegal detention. A public officer who is
acting outside the scope of his official duties is no better than a private citizen.

Questions & Answers


1.
A janitor at the Quezon City Hall was assigned in cleaning the mens
room. One day, he noticed a fellow urinating so carelessly that instead of
urinating at the bowl, he was actually urinating partly on the floor. The janitor
resented this. He stepped out of the mens room and locked the same. He left.

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The fellow was able to come out only after several hours when people from the
outside forcibly opened the door. Is the janitor liable for arbitrary detention?
No. Even if he is a public officer, he is not permitted by his official function
to arrest and detain persons. Therefore, he is guilty only of illegal detention.
While the offender is a public officer, his duty does not include the authority to
make arrest; hence, the crime committed is illegal detention.
2.
A municipal treasurer has been courting his secretary. However, the
latter always turned him down. Thereafter, she tried to avoid him. One afternoon,
the municipal treasurer locked the secretary inside their office until she started
crying. The treasurer opened the door and allowed her to go home. What crime
was committed?
Illegal detention. This is because the municipal treasurer has no authority
to detain a person although he is a public officer.
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.
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
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.

Question & Answer


The offended party was brought to a place which he could not leave
because he does not know where he is, although free to move about. Was
arbitrary or illegal detention committed?
Either arbitrary detention or illegal detention was committed. If a person is
brought to a safe house, blindfolded, even if he is free to move as he pleases, but
if he cannot leave the place, arbitrary detention or illegal detention is 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.

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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 to accuse the offended party of a crime
he did not commit, to deliver the person to the proper authority, and 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.

Question & Answer


A had been collecting tong from drivers. B, a driver, did not want to
contribute to the tong. One day, B was apprehended by A, telling him that he was
driving carelessly.
Reckless driving carries with it a penalty of immediate
detention and arrest. B was brought to the Traffic Bureau and was detained there
until the evening. When A returned, he opened the cell and told B to go home.
Was there a crime of arbitrary detention or unlawful arrest?
Arbitrary detention. The arrest of B was only incidental to the criminal
intent of the offender to detain him. But if after putting B inside the cell, he was
turned over to the investigating officer who booked him and filed a charge of
reckless imprudence against him, then the crime would be unlawful arrest. The
detention of the driver is incidental to the supposed crime he did not commit. But
if there is no supposed crime at all because the driver was not charged at all, he
was not given place under booking sheet or report arrest, then that means that
the only purpose of the offender is to stop him from driving his jeepney because
he refused to contribute to the tong.

Updates in ARBITRARY DETENTION (2006)


Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a
person. The elements of the crime are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.
o That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram,
Samar is not disputed. Hence, the first element of Arbitrary Detention, that the offender is a
public officer or employee, is undeniably present.
o Also, the records are bereft of any allegation on the part of petitioner that his acts were
spurred by some legal purpose. On the contrary, he admitted that his acts were motivated by
his "instinct for self-preservation" and the feeling that he was being "singled out." The
detention was thus without legal grounds, thereby satisfying the third element enumerated
above.
o What remains is the determination of whether or not the team was actually detained. In the
case of People v. Acosta, which involved the illegal detention of a child, we found the
accused-appellant therein guilty of kidnapping despite the lack of evidence to show that any
physical restraint was employed upon the victim. However, because the victim was a boy of
tender age and he was warned not to leave until his godmother, the accused-appellant, had

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returned, he was practically a captive in the sense that he could not leave because of his fear
to violate such instruction.
In the case of People v. Cortez, we held that, in establishing the intent to deprive the victim
of his liberty, it is not necessary that the offended party be kept within an enclosure to
restrict her freedom of locomotion. At the time of her rescue, the offended party in said case
was found outside talking to the owner of the house where she had been taken. She explained
that she did not attempt to leave the premises for fear that the kidnappers would make good
their threats to kill her should she do so. We ruled therein that her fear was not baseless as
the kidnappers knew where she resided and they had earlier announced that their intention in
looking for her cousin was to kill him on sight. Thus, we concluded that fear has been known
to render people immobile and that appeals to the fears of an individual, such as by threats to
kill or similar threats, are equivalent to the use of actual force or violence.
The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of
the victim's liberty need not involve any physical restraint upon the victim's person. If the
acts and actuations of the accused can produce such fear in the mind of the victim sufficient
to paralyze the latter, to the extent that the victim is compelled to limit his own actions and
movements in accordance with the wishes of the accused, then the victim is, for all intents
and purposes, detained against his will.
In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the
witnesses and the complainants were not allowed by petitioner to go home. This refusal was
quickly followed by the call for and arrival of almost a dozen "reinforcements," all armed with
military-issue rifles, who proceeded to encircle the team, weapons pointed at the
complainants and the witnesses. Given such circumstances, we give credence to SPO1
Capoquian's statement that it was not "safe" to refuse Mayor Astorga's orders. It was not just
the presence of the armed men, but also the evident effect these gunmen had on the actions
of the team which proves that fear was indeed instilled in the minds of the team members, to
the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the
departure of the complainants and witnesses against their will is thus clear.

The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear. After a
careful review of the evidence on record, we find no proof that petitioner instilled fear in the minds of the
private offended parties.
o
Indeed, we fail to discern any element of fear from the narration of SPO1 Rufo Capoquian, the
police officer who escorted the DENR Team during their mission. On the contrary, what appears is
that petitioner, being then a municipal mayor, merely extended his hospitality and entertained the
DENR Team in his house.
The testimonial evidence likewise shows that there was no actual restraint imposed on the private
offended parties. SPO1 Capoquian in fact testified that they were free to leave the house and roam around
the barangay. Furthermore, he admitted that it was raining at that time. Hence, it is possible that petitioner
prevented the team from leaving the island because it was unsafe for them to travel by boat
(reconsideration ruling in same 2006 case above)

ARTICLE 125
DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER
JUDICIAL AUTHORITIES
A. Elements
1. Offender is a public officer or employee;
2. He has detained a person for some legal ground;
3. He fails to deliver such person to the proper judicial authority within:
a. 12 hours for light penalties;
b. 18 hours for correctional penalties;
c. 36 hours for afflictive penalties. (As amended by E.O. Nos. 59 and
272, Nov. 7, 1986 and July 25, 1987, respectively)
N.B.
o This article does not apply if the arrest is made with a warrant and it
is lawful. This is a felony by omission.
B. Art 125 distinguished from Art. 124

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In arbitrary detention under Art. 124, the detention is illegal from the
beginning; in arbitrary detention under Art. 125, the detention is legal in the
beginning but the illegality of the detention starts from the expiration of any of the
periods of time specified in Art. 125, without the person detained having been
delivered to the proper judicial authority.
C. Period for delivery
The number of hours mentioned will start to run at the moment the police
officers placed into custody the arrested person and will not stop even when filed at
the prosecutors office. This is a prescriptive period of the custody of the custody and
the time will stop when the information is filed in court.
Therefore, if an accused is arrested on 3 pm, such period will not stop at 5 pm
(closing time) but will continue to run until the following day. But if the accused was
arrested on 5 pm, the period will run at 8 am the following day. This is because
circumstances are considered in determining the liability of the officer detaining the
accused for more then the time prescribed. These circumstances are: (1) the means of
communication as well as the (2) the hour of the arrest and (3) other circumstances
such as the material possibility for the fiscal to make the investigation and file in time
the necessary information.
D. Waiver of Art 125
Before the filing of a complaint or information the person may ask for
preliminary investigation but first has to sign a waiver of Art. 125 with the assistance
of a lawyer. Notwithstanding his application for bail and the investigation must be
terminated within 15 days from its inception.
NOTA BENE:
This article applies only in LAWFUL WARRANTLESS ARREST
If arrest is with a warrant, article 125 does not apply
When a person is arrested without a warrant, it is the duty of the public officer or
employee arresting him to bring him to the nearest police station.
Q: what is delivery contemplated in this article?
A: delivery here is construed not as physical delivery of his person but the making of the
charge or causation, or the filing of case or information against the arrested person with the
corresponding judge or court.
Under our criminal procedure, there will be inquest investigation. If in case of
warrantless arrest, detained person should be brought to the fiscal for inquest investigation.
Inquest investigation is different from preliminary investigation because in
preliminary investigation the respondent is given a chance to answer by filing a counteraffidavit or any evidence within 10 days in inquest investigation, the complainant or the police
officer will make a compliant or an affidavit, the fiscal will conduct an inquest investigation,
and if there probable cause, then file an information in court.
Exemptions here are:
1. when the arrest is by virtue of a valid warrant
2. in Sayo vs. Chief of Police:
a. means of communication
b. hour of arrest
c. other circumstances such as the time of surrender and the material
possibility of the fiscal to make the investigation and file the necessary
information
NOTA BENE:
Reason why the article was incorporated in the RPC because under the old rule, a
person who is not yet charged cannot post bail, he must be charged first before he can post

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bail. But Under the new rules of procedure, even if the person detained has not yet been
charged with a crime (no case filed yet) he can post bail na. Therefore, the effect is that the
reason behind article 125 does not exist anymore because of this new rule.
In article 124, the detention is illegal from the very beginning
In article 125, the detention is legal at the inception but the illegality starts from the
expiration of any of the periods of time specified therein without the person detained having
been delivered to the proper judicial authority.
Illegality of detention is not cured by the filing of the information in court.
Fiscal not generally liable unless he ordered or induced the arresting officer to hold
and not release the prisoner after the expiration of sadi period.
SEE: RA 7438 Act Defining Rights of Persons Under Custodial Investigation
This is a form of arbitrary detention. 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 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.
The period of detention is 12 hours for light offenses, 18 hours for correctional
offences and 36 hours for afflictive offences, where the accused may be detained
without formal charge. But he must cause a formal charge or application to be
filed with the proper court before 12, 18 or 36 hours lapse. Otherwise he has to
release the person arrested.
Note that the period stated herein does not include the nighttime. It is to be
counted only when the prosecutors office is ready to receive the complaint or
information.
This article does not apply if the arrest is with a warrant.
contemplated here is an arrest without a warrant.

The situation

Question & Answer


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?
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.
When a person is arrested without a warrant, it means that there is no case filed in
court yet. If the arresting officer would hold the arrested person there, he is
actually depriving the arrested of his right to bail. As long as there is no charge in
the court yet, the arrested person cannot obtain bail because bail may only be
granted by the court. The spirit of the law is to have the arrested person delivered
to the jurisdiction of the court.

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If the arrest is by virtue of a warrant, it means that there is already a case filed in
court. When an information is filed in court, the amount of bail recommended is
stated. The accused person is not really denied his right to bail. Even if he is
interrogated in the police precinct, he can already file bail.
Note that delivery of the arrested person to the proper authorities does not mean
physical delivery or turn over of arrested person to the court. It simply means
putting the arrested person under the jurisdiction of the court. This is done by
filing the necessary complaint or information against the person arrested in court
within the period specified in Article 125. The purpose of this is for the court to
determine whether the offense is bailable or not and if bailable, to allow him the
right to bail.
Under the Rule 114 of the Revised Rules of Court, the arrested person can demand
from the arresting officer to bring him to any judge in the place where he was
arrested and post the bail here. Thereupon, the arresting officer may release him.
The judge who granted the bail will just forward the litimus of the case to the court
trying his case. The purpose is in order to deprive the arrested person of his right
to post the bail.
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.

Question & Answer


The arrest of the suspect was done in Baguio City. On the way to Manila,
where the crime was committed, there was a typhoon so the suspect could not be
brought to Manila until three days later. Was there a violation of Article 125?
There was a violation of Article 125. The crime committed was arbitrary
detention in the form of delay in the delivery of arrested person to the proper
judicial authority. The typhoon or flood is a matter of defense to be proved by the
accused, the arresting officer, as to whether he is liable. In this situation, he may
be exempt under paragraph 7 of Article 12.
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, not Article 125, will apply. If the arrest is 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.

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ARTICLE 126
DELAYING RELEASE
A. Acts Punishable
1. By delaying the performance of a judicial or executive order for the release
of a prisoner.
2. By unduly delaying the service of the notice of such order to said prisoner
3. By unduly delaying the proceedings upon any petition for the liberation of
such person.
e.g. habeas corpus
B. Elements
1. The offender is a public officer or employee.
- usually, wardens and jailers are the offenders
2. 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.
3. The offender without good reason delays:
a. the service of the notice of such order to the prisoner, or
b. the performance of such judicial or executive order for the release
of such prisoner, or
c. the proceedings upon a petition for the release of such person.
NOTA BENE:
Example:
Once the court issues or renders judgement, a court employee will furnish the jail
warden a copy of the judgment. Once jail warden receives the order of release of the accused, it
is his duty to release the accused because there is already a judgement authorizing the same.
It should be the court employee who must serve or deliver the order, not anyone else.
This is to avoid inconvenience and delay.
NOTA BENE:
In the rules of court, a writ or habeas corpus should be given priority. All courts can issue it,
even the Municipal trial court where there is no RTC.

ARTICLE 127
EXPULSION
A. Acts Punishable
1. By expelling a person from the Philippines
2. By compelling a person to change his residence
B. Elements
1. Offender is a public officer or employee
2. He expels any person form the Philippines, or compels a person to change
his residence
3. Offender is not authorized to do so by law
NOTA BENE:
In the Philippines, it is only the president who can deport or expel an undesirable
alien. It is an act of state.
Q: what are legal grounds or expelling or compelling a person to change residence?
A:
1. ejectment cases
2. expropriation cases

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3.
4.
5.

emergency reasons, like if there is a state of calamity


execution of a writ of possession
writ of demolition

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 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.

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.
committed?

If a Filipino citizen is sent out of the country, what crime is

Grave coercion, not expulsion, because a Filipino cannot be deported. This


crime refers only to aliens.
Section Two. Violation of domicile
ARTICLE 128
VIOLATION OF DOMICILE
A. Acts Punishable
1. By entering the dwelling against the will of the owner
2. By searching papers or other effects found therein without the previous
consent of such owner eventhough the entry was with the consent of the
latter
3. By refusing to leave the premises after having been surreptitiously entered
said dwelling and after having been required to leave the same.
B. Elements
1. Offender is a public officer or employee
- if committed by a private person, crime is trespass to dwelling
2. He is not authorized by judicial order to enter the dwelling and /or to
make a search therein for papers or other effects
C. Circumstances Qualifying Offense
1. If committed at nighttime
2. If any papers and effects not constituting evidence of a crime are not
returned immediately after the search made by the offender
D. Against the will different from without consent.

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The entrance of the public officer must be against the will of the owner either
expressly or impliedly. No crime if only without the consent.
E. Right of officer to break into building or enclosure if refused
admittance thereto.
In order to have that right, the officer must have a valid warrant of arrest or
has one of the grounds enumerated in Sec. 5, ROC, and he has announced his
authority and purpose.
There are three ways of committing the violation of Article 128:
(1)
By simply entering the dwelling of another if such entering is done against
the will of the occupant. 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.
(2)
(3)

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.
Refusing to leave premises after surreptitious entry and being told to leave
the same. The act punished is not the entry but the refusal to leave. If the
offender upon being directed to eave, 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 is already committed because it would fall in number 1.

Questions & Answers


1. It was raining heavily. A policeman took shelter in one persons house.
The owner obliged and had his daughter serve the police some coffee.
The policeman made a pass at the daughter. The owner of the house
asked him to leave. Does this fall under Article 128?
No. It was the owner of the house who let the policeman in. The entering
is not surreptitious.
2. A person surreptitiously enters the dwelling of another. What crime or
crimes were possibly committed?
The crimes committed are (1) qualified trespass to dwelling under Article
280, if there was an express or implied prohibition against entering. This is
tantamount to entering against the will of the owner; and (2) violation of domicile
in the third form if he refuses to leave after being told to.
ARTICLE 129
SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE
OF THOSE LEGALLY OBTAINED
A. Acts punishable
1. By procuring a search warrant without just cause.

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By exceeding his authority or by using unnecessary


severity in executing a search warrant legally procured.
B. Elements
1. That the offender is a public officer or employee.
2. That he procures a search warrant.
3. That there is no just cause.
NOTA BENE:
Q: what is the meaning of just cause?
A: probable cause, this is the legal term
2.

If the applicant lies in order to obtain a warrant, he is liable for:


1. article 129
2. perjury
See STONEHILL v DIOKNO, 20 SCRA 15 (1967) enunciating that a search warrant or a
warrant of arrest must specify only one (1) specific offense.
Acts punished
1.

Procuring a search warrant without just cause;


Elements
1.
Offender is a public officer or employee;
2.
He procures a search warrant;
3.
There is no just cause.

2.

Exceeding his authority or by using unnecessary severity in executing a


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

ARTICLE 130
SEARCHING DOMICILE WITHOUT WITNESSES
A. Elements
1. That the offender is a public officer or employee.
2. That he is armed with search warrant legally procured.
3. That he searches the domicile, papers or other belongings
of any person.
4. That the owner, or any member of his family, OR if none, 2
residents of the same locality.
Crimes under Articles 129 and 130 are referred to as violation of domicile. In
these articles, the search is made by virtue of a valid warrant, but the warrant
notwithstanding, the liability for the crime is still incurred through the following
situations:
(1)

Search warrant was irregularly obtained 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

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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.
(2)

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 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.

(3)

When the public officer employs unnecessary or excessive severity in the


implementation of the search warrant. The search warrant is not a license
to commit destruction.

(4)

Owner of dwelling or any member of the family was absent, or two


witnesses residing within the same locality were not present during the
search.

Section Three. Prohibition, interruption and dissolution of peaceful meetings


ARTICLE 131
PROHIBITION, INTERRUPTION, AN DISSOLUTION OF PEACEFUL MEETINGS
A. Acts punishable
1. By prohibiting or by interrupting, without legal ground,
the holding of a peaceful meeting , or by dissolving the same.
2. By hindering any person from joining any lawful association
or from attending any of its meetings.
3. By prohibiting or hindering any person from adressing ,
either alone or together with other, any petition to the
authorities for the correction of abuses or redress of
grievances.
NOTA BENE:
There is a parallel provision in PD 1829 OBSTRUCTION OF JUSTICE (see this special law)
Offender here must be a stranger not a participant/member of the meeting.
See Pp vs. Calera, CA, 45 O.G. 2576. Here the accused, A POLICE OFFICER, is a
participant in the meeting, he is not guilty of article 131 but guilty of article 287 for unjust
vexation.
If you disrupt the meeting of a municipal council, and you are a public officer, the crime is
against the legislative body, not article 131.
A private individual cannot commit this crime. If he commits any of the acts enumerated in
this section, the crime is disturbance of public order defined in article 153.

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The government has a right to require a permit before any gathering could be
made. Any meeting without a permit is a proceeding in violation of the law. That
being true, a meeting may be prohibited, interrupted, or dissolved without
violating Article 131 of the Revised Penal Code.
But the requiring of the permit shall be in exercise only of the governments
regulatory powers and not really to prevent peaceful assemblies as the public may
desire. Permit is only necessary to regulate the peace so as not to inconvenience
the public. The permit should state the day, time and the place where the
gathering may be held. This requirement is, therefore, legal as long as it is not
being exercised in as a prohibitory power.
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.
At the beginning, it may happen that the assembly is lawful and peaceful. 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.
There are 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.

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.

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Section Four. Crimes against religious worship


ARTICLE 132
INTERRUPTION OF RELIGIOUS WORSHIP
A. Elements
1. That the offender is a public officer or employee
2. That religious ceremonies or manifestations of any
religion are about to take place or are going on .
3. That the offender prevents or disturb the same .
B. Special qualifying aggravating circumstances
1. violence ; and
2. threats
ARTICLE 133
OFFENDING THE RELIGIOUS FEELINGS
A. Elements
1. That the acts complained of were performed
a) in a place devoted to religious worship , or
- in this instance, it is not necessary that there is a religious ceremony
going on
b) during the celebration of any religious ceremony .
2.

That the acts must be notoriously offensive to the feelings of the faithful.

NOTA BENE:
Q: Who may be liable?
A: Any person may be liable.
Q: What are religious ceremonies?
A: they are ceremonies performed outside the church like procession, prayer meeting.
The nature of the act must be directly related or connected with the religious belief of the
offended party.
See: IGLESIA NI CRISTO v CA, 259 SCRA 529 (July 26, 1996)

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TITLE III

CRIMES AGAINST PUBLIC ORDER


NOTA BENE:
Q: what are these crimes? There are 24 crimes:
A:
1. rebellion or insurrection
2. conspiracy and proposal to commit rebellion
3. disloyalty of public officers and employees
4. inciting to rebellion
5. sedition
6. conspiracy to commit sedition
7. inciting to sedition
8. acts tending to prevent the meeting of congress or similar bodies
9. disturbance of proceedings of congress and similar bodies
10. violation of parliamentary immunity
11. illegal assemblies
12. illegal associations
13. direct assaults
14. indirect assaults
15. Disobedience to summons issued by congress, its committees, etc., by the
constitutional commissions, its committees, etc.
16. resistance and disobedience to a person in authority or the agents of such persons
17. tumults and other disturbances
18. unlawful use of means of publication an unlawful utterances
19. alarms and scandals
20. delivering prisoners form jails
21. evasion of service of sentence
22. evasion on occasion of disorder
23. violation of conditional pardon
24. Commission of another crime during service of penalty imposed for another
previous offense.

Chapter One
REBELLION, SEDITION AND DISLOYALTY
ARTICLE 134
REBELLION OR INSURRECTION
A. Elements
1. That there be
a) public uprising AND
b) taking arms against the Government
2. That the purpose of the uprising or movement is either
a) 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 ;
b) to deprive the Chief Executive or Congress , wholly
or partially , or any of their powers or prerogatives .
NOTA BENE: rebellion is a political crime because it is directed against political authority

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Q: is there a complex crime of rebellion with murder and other common crimes?
A: no, rebellion cannot be complex with other crimes. There is none because the
common crimes are absorbed in rebellion as long as committed in furtherance of political
objectives/rebellion. Otherwise, one may be guilty of other crimes. See Pp vs. Hernandez
and Enrile vs. Salazar cases
Characteristics of rebellion:
1. always involve the use of arms
2. is a political crime
3. a crime of the masses or multitude
4. continuous or it is a continuing offense
5. it cannot be complexed with other crimes
Actual clash of arms with the forces of the government is not necessary to convict e accused if
he conspires with those who actually carry on hostilities by means of arms against the govt.
One may be a contributor and the contribution is used in furtherance of rebellion, so you can
be charged with rebellion.
It is not necessary for the purpose of rebellion be accomplished.
Distinction between rebellion and treason:
Rebellion
The levying of war against the govt during
peacetime for any of the purpose mentioned in art.
134 the crime is rebellion

This always involves the taking up arms against the


govt (rising publicly AND taking up arms). QUERY:
If use bolos or stones, is it rebellion? The law does
not specify. This is the question yet to be decided by
the SC
This can be committed in times of war or peace.
Rebellion may be committed by ANY PERSON

treason
The levying of war would be treason if the purpose is
to aid the enemy giving them aid and comfort

Mere Adherence to the enemy giving them aid and


comfort (the two must go together)

War crime. this can only be committed in times of


war
This can be committed by a Filipino citizen or an
alien

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.
Rebellion and insurrection are not synonymous. Rebellion is more frequently used
where the object of the movement is completely to overthrow and supersede the
existing government; while insurrection is more commonly employed in reference
to a movement which seeks merely to effect some change of minor importance, or
to prevent the exercise of governmental authority with respect to particular
matters of subjects (Reyes, citing 30 Am. Jr. 1).

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Rebellion may be committed even without a single shot being fired. No encounter
needed. Mere public uprising with arms enough.
Article 135, as amended, has two penalties: a higher penalty for the promoters,
heads and maintainers of the rebellion; and a lower penalty for those who are only
followers of the rebellion.
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.

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.

Updates in REBELLION (2005-2008)


Rebellion under Article 134 of the Revised Penal Code is committed
[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance
to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any
body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.
The elements of the offense are:
1.
That there be a (a) public uprising and (b) taking arms against the Government; and
2.
That the purpose of the uprising or movement is either
(a)
to remove from the allegiance to said Government or its laws:
(1)
the territory of the Philippines or any part thereof; or
(2)
any body of land, naval, or other armed forces; or
(b)
to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.
o Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action
done in furtherance of a political end.
o The evidence before the panel of prosecutors who conducted the inquest of Beltran for
Rebellion consisted of the affidavits and other documents attached to the CIDG letters. We
have gone over these documents and find merit in Beltran's contention that the same are
insufficient to show probable cause to indict him for Rebellion. The bulk of the documents
consists of affidavits, some of which were sworn before a notary public, executed by members
of the military and some civilians.
o For his part, Cachuela stated that he was a former member of the CPP and that (1) he
attended the CPP's "10th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal
activities; and (3) the arms he and the other CPP members used were purchased partly from
contributions by Congressional members, like Beltran, who represent party-list groups
affiliated with the CPP.
o The allegations in these affidavits are far from the proof needed to indict Beltran for taking
part in an armed public uprising against the government. What these documents prove, at

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best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14
years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that
Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found
in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a
leader of a rebellion. Beltran's alleged presence during the 1992 CPP Plenum does not
automatically make him a leader of a rebellion.
In fact, Cachuela's affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman,
Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran he
does not acknowledge, mere membership in the CPP does not constitute rebellion. As for the
alleged funding of the CPP's military equipment from Beltran's congressional funds, Cachuela's
affidavit merely contained a general conclusion without any specific act showing such funding.
In his Comment to Beltran's petition, the Solicitor General points to Fuentes' affidavit, dated
25 February 2006, as basis for the finding of probable cause against Beltran as Fuentes
provided details in his statement regarding meetings Beltran and the other petitioners
attended in 2005 and 2006 in which plans to overthrow violently the Arroyo government were
allegedly discussed, among others.
Assuming them to be true, what the allegations in Fuentes' affidavit make out is a case for
Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code,
not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to
bring down a government is a mere preparatory step to commit the acts constituting
Rebellion under Article 134. Even the prosecution acknowledged this, since the felony charged
in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to
Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan,
and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati
erred when it nevertheless found probable cause to try Beltran for Rebellion based on the
evidence before it.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a
Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation.
Thus, even assuming that the Information validly charges Beltran for taking part in a
Rebellion, he is entitled to bail as a matter of right since there is no allegation in the
Information that he is a leader or promoter of the Rebellion. However, the Information in fact
merely charges Beltran for "conspiring and confederating" with others in forming a "tactical
alliance" to commit rebellion. As worded, the Information does not charge Beltran with
Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.

THAT THE CRIME WAS POLITICALLY MOTIVATED NOT SUBSTANTIATED. As regards the argument that the
crime was politically motivated and that consequently, the charge should have been rebellion and not
kidnapping, we find the same likewise to be without merit. As held in Office of the Provincial Prosecutor of
Zamboanga Del Norte vs. CA, the political motivation for the crime must be shown in order to justify
finding the crime committed to be rebellion. Merely because it is alleged that appellants were members of
the Moro Islamic Liberation Front or of the Moro National Liberation Front does not necessarily mean that
the crime of kidnapping was committed in furtherance of a rebellion. Here, the evidence adduced is
insufficient for a finding that the crime committed was politically motivated. Neither have the appellants
sufficiently proven their allegation that the present case was filed against them because they are rebel
surrenderees. This court has invariably viewed the defense of frame-up with disfavor. Like the defense of
alibi, it can be just as easily concocted.
Oliva's contention that he should have been charged with and tried for rebellion lacks factual and legal
basis, hence, bereft of merit. True, one can be convicted only of rebellion where the murders, robberies
and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were
not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be
punished separately even if committed simultaneously with the rebellious acts. In the instant case, there
was no evidence at all to show that the killing of Jacinto Magbojos Jr. was in connection with or in
furtherance of their rebellious act. Besides, it was not indubitably proved that Oliva was indeed a member
of the New People's Army.

ARTICLE 134-A
COUP DETAT

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1.

Rebellion
How is the crime committed : by rising publicly AND
taking up arms against the govt

1.

Coup d etat
swift attack accompanied with violence,
intimidation, threat, strategy or stealth
seizing or diminishing state power

2.

Purpose: to remove from the allegiance of govt or its laws

territory of the Philippine


islands or any part thereof
any body of land, naval, or
other armed forces
depriving the chief exec, or
legislative, wholly or
partially of any of its powers
or prerogatives

2.

3.

participants: masses, this is considered as the crime of


the multitude, a mass movement

3.

4.

target: territory, body of land, naval or other armed forces

4.

People from the top, usually government officials


with or without civilian participation = by any
person or persons belonging to the military or
police holding any public office or employment..
not a crime of the multitude because of the phrase
singly or simultaneously
military camp or installation, communications
network, public utilities or other facilities needed
for the exercise and continued possession of power

Distinction of rebellion and insurrection (they are not synonymous):


LEGAL DISTINCTION
Rebellion
Insurrection
The object or purpose of the movement is
COMPLETELY TO OVERTHROW AND
SUPERSEDE THE EXISTING GOVERNMENT

This is a movement which seeks MERELY TO


EFFECT SOME CHANGE OF MINOR
IMPORTANCE, or to PREVENT THE EXERCISE
OF GOVERNMENTAL AUTHORITY WITH
RESPECT TO PARTICULAR MATTERS OR
SUBJECTS

NON-LEGAL DISTINCTION
There is ALWAYS THE USE OF ARMS

Here, no use of arms

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.
Persons liable for rebellion, insurrection or coup d' etat under Article 135
1.

The leaders
a.
Any person who promotes, maintains or heads a rebellion or
insurrection; or

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b.
2.

Any person who leads, directs or commands others to undertake a


coup d' etat;

The participants
a.
Any person who participates or executes the commands of others in
rebellion, insurrection or coup d' etat;
b.
Any person not in the government service who participates,
supports, finances, abets or aids in undertaking a coup d' etat.

ARTICLE 135
PENALTY FOR REBELLION, INSURRECTION OR COUP DETAT
A. Nature
The nature of the crime of rebellion or of inciting is a crime of the masses
, or a multitude . It is a vast movement of men and a complex or intrigue and plots.
It evokes not merely a challenge to the constituted authorities but also civil war on a
bigger or lesser scale .
B. Distinctions
1. Rebellion and sedition
What distinguished rebellion from sedition is not the extent of the
territory but rather the object at which the uprising aims . In rebellion, the
purpose is purely political while in sedition , it is either political or social . The
political purpose of rebellion is to withdraw from the allegiance of the government
on its laws part or the whole of the Philippine territory, or a body of the armed
forces, or to deprive the Chief Executive or Congress , of their powers and
prerogatives. Any other political purpose of an uprising like the prevention of the
execution of the laws or the holding of an election constitutes sedition .
Political crimes and common crimes
Political crimes are these directly aimed against the political order , as
well as such common crimes as maybe committed to achieve a political purpose.
The decisive factor is the intent or motive . If a crime usually regarded as
common , like homicide , is perpetrated for the purpose of removing from the
allegiance to the Government the territory of the Philippjines or any part
thereof , then said offense becomes stripped of its common complexion ,
inasmuch as , being part and parcel of the crime of rebellion , the former ,
acquired the political character of the latter .
2.

ARTICLE 136
CONSPIRACY AND PROPOSAL TO COMMIT COUP DETAT, REBELLION
INSURRECTION
A. How committed
1. Conspiracy to commit rebellion
There is conspiracy to commit rebellion when two or more persons come to an
agreement to rise publicly and take arms against the government for any of the
purposes of rebellion and decide to commit it.
Proposal to commit rebellion
There is proposal to commit rebellion when the person who has decided to
rise publicly and take arms against government, for any of the purposes of rebellion
proposes its execution to some other person or persons.
2.

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ARTICLE 137
DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES
Note: one guilty of the offense is also a violator of the articles of war so you have to report to
the court Marshall.
A. Acts Punishable
1. By failing to resist a rebellion by all the means in their power,
2. By continuing to discharge the duties of their offices under the control of
the rebels,
3. By accepting appointment to office under them
B. Offenders must not be in conspiracy with the rebels
Otherwise, he will be guilty of rebellion not merely disloyalty, because the act
of one is the act of all.
ARTICLE 138
INCITING TO REBELLION OR INSURRECTION
Note: if you incite plus you take up arms and are in open hostilities against the govt, the crime
is not inciting o rebellion or insurrection, but rebellion or insurrection, as the case may be
A. Elements
1. Offender does not take arms or is not in open hostility against the
government;
2. He incites others to the execution of any of the acts of rebellion;
3. The inciting is done by means of speeches, proclamations, writings,
emblems, banners or other representations tending to the same end
B. Distinguished from rebellion and insurrection
1. In both crimes, the offender induces another to commit rebellion.
2. In proposal, the person who proposes has decided to commit rebellion; in
inciting to rebellion, it is not required that the offender has decided to
commit rebellion.
3. In proposal, the person who proposes the execution of the crime uses
secret means; in inciting to rebellion, the act of the inciting is done
publicly.
ARTICLE 139
SEDITION
A. Elements
1. The offender rise:
a. Publicly, and
b. Tumultuously;
2.
3.

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


method;
That the offender employs any of those means to attain any of the
following objects:
a. Preventing the promulgation or execution of any law or the
holding of any popular election;
b. Preventing the National Government, or any provincial or
municipal government or any public officer thereof from freely
exercising its or his functions, or prevent the execution of any
administrative order;

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c.
d.
e.

Inflicting any act of hate or revenge upon the person or property


of any public officer or employee;
Committing any acts of hate or revenge against private persons or
any social class for any political or social end;
Despoiling any person, municipality or province, or the National
Government, of all its property or any part thereof, for any
political or social end.

NOTA BENE:
There are 5 objects of the crime of sedition. If one of the 5 objects are committed but without
taking up of arms, the crime is direct assault.
Distinction between rebellion and sedition:
Rebellion
Purpose of the offenders: it is always political since
rebellion is Always a political crime
How carried or committed: by rising publicly and
taking up arms

Aims to completely overthrow the govt

sedition
Purpose may be political or social

By rising publicly and tumultuously in order to


attain by force
intimidation
other means outside legal methods
to create disturbance or commotion only

Distinctions between treason and sedition


Treason
sedition
May be committed by one person only
Cannot be committed by one person. Cause by
more than 3 persons
Object is political

Object is political or social

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 ad 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.
ARTICLE 140
PENALTY FOR SEDITION
A. Persons Liable
1. The leaders of the sedition
2. Others persons participating
ARTICLE 141
CONSPIRACY TO COMMIT SEDITION
NOTA BENE:
There is no such crime as proposal to commit sedition. This is a non-existing crime.

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ARTICLE 142
INCITING TO SEDITION
A. Acts Punishable
1. Inciting others to the accomplishment of any of the acts which constitute
sedition, by means of speeches, proclamations, writings, emblems,
cartoons, banners, or other representations tending to the same end;
2. Uttering seditious words or speeches which tend to disturb the public
peace;
3. Writing, publishing, or circulating scurrilous libels against the
Government of the Philippines, or any of the duly constituted authorities
thereof, or which tend to disturb the public peace.
4. Knowingly conceal such evil practices
B. Elements
1. Offender does not take direct part in the crime of sedition.
2. He incites others to the accomplishment of any of the acts which
constitute sedition.
3. The inciting is done by means of speeches, proclamations, writings,
emblems, cartoons, banners, or other representations tending to the same
end.
Only non-participant in sedition may be liable.
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.

Chapter Two
CRIMES AGAINST POPULAR REPRESENTATION
Section One. Crimes against legislative bodies and similar bodies
ARTICLE 143
ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY (CONGRESS
OF THE PHILIPPINES) AND SIMILAR BODIES
A. Elements
1. That there be a projected or actual meeting of Congress or any of its
committees or subcommittees, constitutional commissions or committees
or divisions thereof, or of any provincial board or city or municipal
council or board;
2. The offender who may be any person prevents such meeting by force or
fraud.

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NOTA BENE:
This crime is committed in 2 ways:
1. by force
2. by fraud
This is also called crimes against legislative bodies:
1. congress
2. any of its committees
3. subcommittees
4. sanguniang panlalawigan
5. sanguniang panlungsod
6. sanguniang bayan
ARTICLE 144
DISTURBANCE OF PROCEEDINGS
A. Elements
1. That there be a meeting of Congress or any of its committees or
subcommittees, constitutional commissions or committees or divisions
thereof, or of any provincial board or city or municipal council or board;
2. That the offender does any of the following acts:
a. He disturbs any of such meeting
b. He behaves while in the presence of such bodies in such a manner
as to interrupt its proceedings or to impair the respect due it.
NOTA BENE:
The offender may also be held for contempt here.
Q: How committed?
A:
1. He DISTURBS any of such meetings
2. He BEHAVES while in the presence of any of such bodies in such a manner as to
- interrupt its proceedings or
- To impair the respect due it.

Section Two. Violation of parliamentary immunity


ARTICLE 145
VIOLATION OF PARLIAMENTARY IMMUNITY
A. Acts punishable
1. By using force, intimidation, threats, or fraud to prevent any member of
Congress from:
a. attending the meetings of Congress or any of its committees or
subcommittees, constitutional commissions or committees or
divisions thereof,
b. from expressing his opinions or
c. casting his vote
2. By arresting or searching any member thereof while Congress is in regular
or special session, except in case such member has committed a crime
punishable under the Code by a penalty higher than prision mayor.
a. The offender is a public officer or employee,
b. He arrest or searches any member of Congress,

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c.
d.

That Congress is in special or regular session,


That the member arrested or searched has not commited a crime
punishable under the Code by a penalty higher than prision
mayor.

NOTA BENE:
This was amended/modified by section 11, article 6 of the 1987 constitution
While congress is in regular/special session, a member commits a crime which carries with it a
penalty of 6 years or prision correctional, so he cannot be arrested. If he commits a crime with
a penalty of more than 6 years, he cannot enjoy this parliamentary immunity.
Parliamentary immunity:
1. complete freedom to express themselves without fear of civil or criminal prosecution or
liability
2. privilege from arrest by attendance to a regular or special meeting sessions unless they
have committed a crime punishable under RPC with a penalty of more than 6 years

Chapter Three
ILLEGAL ASSEMBLIES AND ASSOCIATIONS
ARTICLE 146
ILLEGAL ASSEMBLIES (should be read as MEETINGS)
A. Acts Punishable
1. Any meeting attended by armed persons for the purpose of committing
any of the crimes punishable under the Code.
a. That there is a meeting, a gathering or group of persons, whether
in a fixed place or moving;
b. The meeting is attended by armed persons,
c. The purpose is to commit any of the crimes punishable under the
Code.
2.

Any meeting in which the audience is incited to the commission of the


crime of treason, rebellion or insurrection, sedition or assault upon a
person in authority or his agents.
a. That there is a meeting, a gathering or group of persons, whether
in a fixed place or moving,
b. The audience, whether armed or not, is incited to the commission
of the crime of treason, rebellion or insurrection, sedition or
direct assault.

B. Persons Liable
1. The organizer or leader of the meeting
2. Persons present at the meeting.
C. A person may be exempt from criminal liability if there is an absence of a common
intent to commit a felony punishable under this Code. Thus, if a person attends a
meeting out of curiosity, he is not liable.
D. Presumption if a person is carrying an unlicensed firearm
a. It is presumed that the purpose of the meeting is to commit acts
punishable under this Code

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b.

He is considered a leader or organizer of the meeting

NOTA BENE:
There must be a meeting here. It is the attendance of such meeting that is punished by law.
There are 2 forms here:
1. In the first form, there must be armed persons for the purpose of committing any
of the crimes punishable under this code. But not all persons present in the first form must
be armed.
Situation: if there is a meeting of 20 persons for the purpose of distributing shabu or
marijuana to Pasil, Tabunok and Pardo, the crime committed is not illegal assembly or
meeting BECAUSE IN LEGAL ASSEMBLY THE PUSPOSE IS TO COMMIT A CRIME UNDER
THE PENAL CODE (referring to the RPC)
2. In the 2nd form there may be armed persons or no persons may be armed as long
as they are incited to the commission of the crime of TREASON, REBELLION,
INSURRECTION, SEDITIONOR ASSAULT UPON THE PERSON IN AUTHORITY OR HIS
AGENTS.
If any person present at the meeting carries an unlicensed firearm, it is presumed
that the purpose of the meeting insofar as he is concerned is to commit acts
punishable under the Revised Penal Code, and he is considered a leader or
organizer of the 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.
ARTICLE 147
ILLEGAL ASSOCIATIONS
A. Kinds of Illegal Association
1. Association totally or partially organized for the purpose of committing
any of the crimes punishable under this Code (RPC).
2. Associations totally or partially organized for some purpose contrary
to public morals (refers to special laws which aims to protect public
morals)
Here, it is not necessary that there be a meeting. It is enough that you are a member.
B. Persons Liable
1. Founders, directors and president of the association
2. Mere members of the association
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

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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.
1.

In illegal association, it is not necessary that there be an actual meeting.


In illegal assembly, it is necessary that there is an actual meeting or
assembly or armed persons for the purpose of committing any of the
crimes punishable under the Code, or of individuals who, although not
armed, are incited to the commission of treason, rebellion, sedition, or
assault upon a person in authority or his agent.

2.

In illegal association, it is the act of forming or organizing and membership


in the association that are punished.
In illegal assembly, it is the meeting and attendance at such meeting that
are punished.

3.

In illegal association, the persons liable are (1) the founders, directors and
president; and (2) the members.
In illegal assembly, the persons liable are (1) the organizers or leaders of
the meeting and (2) the persons present at meeting.

Chapter Four
ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE
TO, PERSONS IN AUTHORITY AND THEIR AGENTS
ARTICLE 148
DIRECT ASSAULT
A. Acts punishable
1. Without public uprising, by employing force or intimidation for the
attainment of any of the purpose enumerated in defining the crimes of
rebellion or sedition.
a. The offender employs force or intimidation,
b. The aim of the offender is to attain any of the purposes of the
crime of rebellion or any of the objects of the crime of sedition
c. That there is no public uprising.
2.

Without public uprising, by attacking, employing force, or by seriously


intimidating or resisting any person in authority or any of his agents,
while engaged in the performance of official duties, or on occasion of such
performance.
a. That the offender:
a.1 makes an attack
a.2 employs force
a.3 makes serious intimidation, or
a.4 makes serious resistance
b. That the person assaulted is a person of authority or his agent
c. That at the time of the assault the person in authority or his
agent:
c.1 is engaged in the actual performance of official duties, or
that he is assaulted
c.2 by reason of the past performance of official duties
d. The offender knows that the one he is assaulting is a person in
authority or his agent in the exercise of his duties

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e.

There is no public uprising.

B. Indirect assault can be committed only when a direct assault is also committed.
C. Art 152, as amended, provides that person who comes to the aid of a PIA, such
person is considered as an agent of a person in authority. Therefore, if one
assaults such person the crime committed is direct assault and not indirect
assault.
NOTA BENE:
Essence of this article: YOU MUST UPHOLD THE MAJESTY OF THE LAW
In the study of direct assault, you refer back to the objects of rebellion and the objects of
sedition, because if there is no public uprising, no taking of arms and you attack a person in
authority, you are liable for direct assault.
There are two ways of committing the crime:
1. Formula:
OBJECTS OF REBELLION/SEDITION
LESS
PUBLIC UPRISING
_______________________________
DIRECT ASSAULT
2. The intimidation or resistance here is serious whether the person or offended party is a
person is authority or his agent
In direct assault, the officer or the person in authority may be in the performance of his official
duty or he may be attacked on the occasion of such performance. This means that the
impelling motive of the attack is the performance of an official duty. Th words on occasion
signifies the because or by reason of the past performance of the duty even if at the very time
of the attack or assault no official duty was being discharged.
In indirect assault, person assault must be in the ACTUAL performance of his official duty
There is self-defense in direct assaults: when the officer or the person in authority or his
agents were the ones who provoked. He acts in legitimate defense.
One important element to consider here:
Knowledge that the person is a person in authority
Lack of knowledge or good faith is a good defense here.
In a case like this, the prosecution should present evidence on what is the motive for the
attack: was it personal or was it due to the past performance of an official duty? If only
personal, then the crime is only physical injuries.
In direct assaults, physical injuries may be inflicted by the offender. If it is slight physical
injuries only, there is only one crime which is direct assault because slight physical injuries is
absorbed or inherent in the crime of direct assault.
But if the injury is less serious or serious physical injuries, the crime is complexed DIRECT
ASSAULT WITH LESS SERIOUS/SERIOUS PHYSICAL INJURIES.

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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.
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.
Person in authority is any person directly vested with jurisdiction, whether as an
individual or as a member of some court or government corporation,
board, or commission. A barangay chairman is deemed a person in
authority.
Agent of a person in authority is 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, such as a barangay councilman, barrio policeman, barangay
leader and any person who comes to the aid of a person in authority.
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.
In direct assault of the first form, the stature of the offended person is immaterial.
The crime is manifested by the spirit of lawlessness.

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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 party
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.
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.

Update in DIRECT ASSAULT (2006)


Direct assault, a crime against public order, may be committed in two ways: first, by any person or
persons who, without a public uprising, shall employ force or intimidation for the attainment of any of
the purposes enumerated in defining the crimes of rebellion and sedition; and second, by any person
or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist
any person in authority or any of his agents, while engaged in the performance of official duties, or on
occasion of such performance.
o Unquestionably, petitioner's case falls under the second mode, which is the more common
form of assault and is aggravated when: (a) the assault is committed with a weapon; or (b)
when the offender is a public officer or employee; or (c) when the offender lays hand upon a
person in authority.
o It is a matter of record that at the time of the assault, Lt. Leygo was engaged in the actual
performance of his official duties. He was wearing the designated police uniform and was on
board a police car conducting a routinary patrol when he first came upon the truck unloading
chicken manure. Because the unloading of chicken dung was a violation of La Trinidad
Municipal Ordinance No. 1-91, the lieutenant ordered the truck driver to return from where
he came, but petitioner, in defiance of such lawful order, commanded the truck driver to
return to Shilan, the place where the truck was first intercepted, and on being informed that
the same truck had returned, the lieutenant had every reason to assume it did return for the
purpose of unloading its cargo of chicken dung, thus stopped it from doing so.
Under the circumstances, it simply defies reason to argue that Lt. Leygo was not in the performance
of his lawful duties as a police officer when the assault upon him was perpetrated by the petitioner.

ARTICLE 149
INDIRECT ASSAULT

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A. Elements
1. That a person in authority or his agent is the victim of any of the forms of
direct assault
2. The person comes to the aid of such authority or his agent
3. That the offender makes use of force or intimidation upon such person
coming to the aid of the authority or his agent.
NOTA BENE:
There is no indirect assault if there is no direct assault.
The offended party in indirect assault may be a private person.
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 person in authority. The victim cannot be the person in authority or his agent.
There is no indirect assault when there is no direct assault.
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.
Due to the amendment of Article 152, without the corresponding amendment in
Article 150, the crime of indirect assault can only be committed when assault is
upon a civilian giving aid to an agent of the person in authority. He does not
become another agent of the person in authority.
ARTICLE 150
DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY
(CONGRESS), ITS COMMITTEES OR SUBCOMMITTEES OR DIVISIONS.
A. Acts punished
1. By refusing, without legal excuse, to obey the summons issued by the
Congress or any of its committees or subcommittees.
2. By refusing to be sworn or placed under affirmation while being before
such legislative or constitutional body or official.
3. By refusing to answer any legal inquiry or to produce any books, papers,
documents, or records in his possession, when required by them to do so
in the exercise of their functions
4. By restraining another from attending as a witness in such legislative or
constitutional body.
5. By inducing disobedience to a summons or refusal to be sworn by any
such body or official.
ARTICLE 151
RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHOIRTY OR AGENTS
OF SUCH PERSONS
A. Elements of resistance and serious disobedience
1. That a person in authority or his agent is engaged in the performance
of official duty or gives a lawful order to the offender
2. That the offender resists or seriously disobeys such persons in authority
or his agent
3. That the act of the offender is not included in the provisions of Art . 148 ,
149 , and 150 .
B. Elements of simple disobedience

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That an agent of a person in authority is engaged in the performance of


official duty or gives a lawful order to the offender .
2. That the offender disobeys such agent of a person in authority .
3. That such disobedience is not a serious nature.
C. Distinguished from direct assault
1. In direct assault , the offended party is assaulted while in the performance
of his duties or by reason thereof .
In resistance or disobedience , the officer must be in the discharge of his
duties.
1.

2.

In direct assault , the resistance must be serious.


In resistance or disobedience , the resistance is not serious , that is ,
without manifest intention to defy the authority of the law.

3.

Direct assault (2nd form) is committed in four ways


a. by attacking ,
b. by employing force ,
c. by seriously intimidating , and
d. by seriously resisting a person in authority or his agent; resistance
or serious disobedience is committed only by resisting or
seriously disobeying a person in authority or his agent

NOTA BENE:
There is a parallel provision in PD 1829 OBSTRUCTION OF JUSTICE (see this special law)
Distinction between resistance or serious disobedience and direct
assault
1.

In resistance, the person in authority or his agent must be in actual


performance of his duties.
In direct assault, the person in authority or his agent must be engaged in
the performance of official duties or that he is assaulted by reason thereof.

2.

Resistance or serious disobedience is committed only by resisting or


seriously disobeying a person in authority or his agent.
Direct assault (the second form) is committed in four ways, that is, (1) by
attacking, (2) by employing force, (3) by seriously intimidating, and (4) by
seriously resisting a persons in authority or his agent.

3.

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 I authority, the use of any kind or
degree of force will give rise to direct assault.

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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
PERSONS IN AUTORITY AND AGENTS OF PERSONS IN AUTHORITY
A. Definition
1. Persons in Authority
any person directly vested with jurisdiction
2. Agent in 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.
NOTA BENE:
Not all public officers or employees are persons in authority
1. treasurer
2. secretaries
3. auditors
Not all persons in authority are public officers/employees

1.

teachers or professors in duly recognized in private schools

Chapter Five
PUBLIC DISORDERS
ARTICLE 153
TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER--TUMULTUOUS DISTURBANCE OR INTERRUPTION LIABLE
DISTURBANCES

TO

CAUSE

A. Acts punishable
1. causing any serious disturbance in a public place, office or establishment
- serious disturbance must be planned or intended, otherwise not
punishable under this article
2. disturbance or interruption of public performances, functions, gatherings
or peaceful meetings, if the act is not included in Art 131 and 132
3. Making an outcry (meaning to shout subversive and provocative words)
tending to incite rebellion or sedition in any meeting, association or public
place
4. Displaying placards or emblems which provoke a disturbance of public
order in such place
5. Burying with pomp the body of a person who has been legally executed

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NOTA BENE:
SITUS OF THE CRIME
IT MAY BE A PRIVATE OR PUBLIC PLACE.
o
o

If committed in a private place, there should be a public function or performance.


If committed in a public place, art 153 is violated provided that the disturbance does
not amount to interruption of religious worship or offending religious feelings.
o

Here there was really no intention to incite rebellion sedition but the
effect of the outcry incites the people to commit the crimes
mentioned.

Difference between Outcry and Displaying of emblems or placards under Art


138 (Inciting to rebellion/sedition) AND Art 153, par 4.
- Under Art 138, it is necessary that the offender should have done the act with the
idea aforethought of inducing his hearers or readers to commit the crime of rebellion or
sedition.
- Under Art 153, outcry is more or less unconscious outburst which, although
rebellious or seditious in nature, is not intentionally calculated to induce others to commit.
Disturbance or Interruption of a tumultuous character qualifies the offense.
Tumultuous defined
Caused by more than three persons who are armed or provided with means if violence
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 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.
ARTICLE 154
UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES
A. Acts punishable

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1.

2.
3.
4.

Any person who by means of printing, lithography, or any other means of


publication shall publish or cause to be published as news any false news
which may endanger the public order, or cause damage to the interest or
credit of the State;
Any person who by the same means, or by words, utterances or speeches
shall encourage disobedience to the law or to the constituted authorities
or praise, justify, or extol any act punished by law;
Any person who shall maliciously publish or cause to be published any
official resolution or document without proper authority, or before they
have been published officially; or
Any person who shall print, publish, or distribute or cause to be printed,
published, or distributed books, pamphlets, periodicals, or leaflets which
do not bear the real printer's name, or which are classified as anonymous.

NOTA BENE:
If this crime is committed by a public officer or employee, he is also liable for R.A. 6713, public
officers or employees are not allowed to disclose confidential matters or matters confidential
in nature.
ARTICLE 155
ALARMS AND SCANDALS
A. Acts punishable
1. Discharging any firearm, rocket, firecracker, or other explosive within any
town or public place, calculated to cause (which produces) alarm or
danger.
2. Instigating, or taking an active part in any charivari or other disorderly
meeting offensively to another or prejudicial to public tranquility.
3. Disturbing the public peace while wandering about at night or while
engaged in any other nocturnal amusements.
4. Causing any disturbance or scandal in public places with intoxicated or
otherwise, provided Art. 153 is not applicable.
N.B.
Purpose of Art. 155 : Maintenance of public tranquility
Discharge of firearm should not be aimed at a person, otherwise it would be DISCHARGE OF
FIREARM (provided there is no intent to kill)
When a person discharges a firearm in public, the act may constitute any
of the possible crimes under the Revised Penal Code:
(1)
(2)
(3)

Alarms and scandals if the firearm when discharged


was not directed to any particular person;
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;
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.

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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.
The crime alarms and scandal is only one crime. Do not think that alarms and
scandals are two crimes.
Scandal here does not refer to moral scandal; that one is grave scandal in Article
200. The essence of the crime is disturbance of public tranquility and public
peace. So, any kind of disturbance of public order where the circumstance at the
time renders the act offensive to the tranquility prevailing, the crime is committed.
Charivari is a mock serenade wherein the supposed serenaders use broken cans,
broken pots, bottles or other utensils thereby creating discordant notes.
Actually, it is producing noise, not music and so it also disturbs public
tranquility. 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, thecrime is unjust vexation.
Even if the persons involved are engaged in nocturnal activity like those playing
patintero at night, or selling balut, if they conduct their activity in such a way that
disturbs public peace, they may commit the crime of alarms and scandals.
ARTICLE 156
DELIVERING PRISONERS FROM JAIL
A. Elements
1. That there is a person confined in a jail or penal establishment
2. That the offender removes therefrom such person or helps the escape of
such person
NOTA BENE:
If the person (jail warden, jail guard, or custodian) who helps in the escape of a prisoner who
is under his custody, the crime is Infidelity in the custody of prisoners.
If the same person is relieved from the job, like if his shift is over and he helped in escaping the
prisoner, the crime is under article 156 and not infidelity in the custody of prisoners because
he was no longer in custody of the prisoner. He is off duty.
In relation to infidelity in the custody of prisoners, 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.
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

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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.

Chapter Six
EVASION OF SERVICE OF SENTENCE
ARTICLE 157
EVASION OF SERVICE OF SENTENCE
A. Elements
1. That the offender is a convict by final judgment.
2. That he is serving his sentence which consists in deprivation of liberty.
3. That he evades the service of his sentence by escaping during the term of
his sentence.
* Applies also to a person sentenced to distierro
B. Circumstances qualifying the offense
1. By means of unlawful entry (this should be by scaling);
2. By breaking doors, windows, gates, walls, roofs or floors;
3. By using picklocks, false keys, disguise, deceit, violence or intimidation; or
4. Through connivance with other convicts or employee of the penal
institution.
NOTA BENE:
THE OFFENDER OR PRISONER WHO ESCAPED MUST BE A PRISONER BY FINAL
JUDGEMENT.
It is qualified evasion if the escape has taken place by means of unlawful entry, breaking
doors..etc (see provision.)
Evasion of service of sentence has three forms:

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(1)
(2)

(3)

By simply leaving or escaping from the penal establishment under Article


157;
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;
Violating the condition of conditional pardon under Article 159.

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.
ARTICLE 158
EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS,
CONFLAGARATIONS, EARTHQUAKES, OR OTHER CALAMITIES.
A. Elements
1. That the offender is a convict by final judgment, who is confined in a
penal institution.
2. That there is disorder, resulting from
a. conflagration;
b. earthquake;
c. explosion; or
d. similar a catastrophe; or
e. mutiny in which he has not participated.
3. That the offender evades the service of his sentence by leaving the penal
institution where he is confine on the occasion of such disorder or during
the mutiny .
4. 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 .
NOTA BENE:
It is the FAILURE TO RETURN that is punished, and if you return, you are given credit.
If you refuse to return, you are given or punished an additional 1/5
But if you return, you are given 1/5 as deduction of your sentence.
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.
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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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.
Mutiny is one of the causes which may authorize a convict serving sentence in the
penitentiary to leave the jail provided he has not taken part in the mutiny.
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.
ARTICLE 159
OTHER CASES OF EVASION OF SERVICE OF SENTENCE
A. Elements
1. That the offender was a convict.
2. That he was granted a conditional pardon by the Chief Executive.
3. That he violated any of the conditions of such pardon.
NOTA BENE:
SUPPOSE Anyone who have been granted conditional pardon by the president of the
Philippines shall violate the conditional pardon, may that person be arrested by the president?
Yes.
But is he liable under 159?
ILLUSTRATION/QUERY:
Here is a convict given conditional pardon, he committed another crime. One of the
conditions contained in the conditional pardon (which is actually a contract between the chief
executive / president and the convict) is not to commit another crime. Later, the said person
committed another crime, say THEFT. Can he be prosecuted and convicted another article 159
before he is convicted of the crime of theft?
ANSWER:
NO. It is a Supreme Court decision. The reason is that suppose the crime of theft (2 nd
offense ALLEGEDLY committed by him) is not true, that it was a trunk up charge, so HE
MUST BE CONVICTED FIRST OF THE 2 ND OFFENSE OR CRIME BEFORE HE CAN
PROSECUTED OR CONVICTED OF OTHER CASES OF AVSION OF SERVICE OF
SENTENCE. (See notes and commentaries of REVISED PENAL CODE ANNOTATED by
MIRIAM DEFENSOR-SANTIAGO and the cases thereof.)
The provisions extend to special laws.

TORRES vs. GONZALES, BOARD OF PARDONS AND PAROLE, and


BUREAU OF PRISONS
G.R. No. 76872. July 23, 1987

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The status of our case law on the matter under consideration may be summed up in
the following propositions:
1.
The grant of pardon and the determination of the terms and
conditions of a conditional pardon are purely executive acts which are not subject to
judicial scrutiny.
2.
The determination of the occurrence of a breach of a condition of a
pardon, and the proper consequences of such breach, may be either a purely
executive act, not subject to judicial scrutiny under Section 64 (i) of the Revised
Administrative Code; or it may be a judicial act consisting of trial for and conviction
of violation of a conditional pardon under Article 159 of the Revised Penal Code.
Where the President opts to proceed under Section 64 (i) of the Revised
Administrative Code, no judicial pronouncement of guilt of a subsequent crime is
necessary, much less conviction therefor by final judgment of a court, in order that a
convict may be recommended for the violation of his conditional pardon.
3.
Because due process is not semper et ubique judicial process, and
because the conditionally pardoned convict had already been accorded judicial due
process in his trial and conviction for the offense for which he was conditionally
pardoned, Section 64 (i) of the Revised Administrative Code is not afflicted with a
constitutional vice.
We do not believe we should depart from the clear and well understood rules
and doctrine on this matter.
It may be emphasized that what is involved in the instant case is not the
prosecution of the parolee for a subsequent offense in the regular course of
administration of the criminal law. What is involved is rather the ascertainment of
whether the convict has breached his undertaking that he would "not again violate
any of the penal laws of the Philippines" for purposes of reimposition upon him of
the remitted portion of his original sentence. The consequences that we here deal
with are the consequences of an ascertained breach of the conditions of a pardon.
A convict granted conditional pardon, like the petitioner herein, who is
recommitted must of course be convicted by final judgment of a court of the
subsequent crime or crimes with which he was charged before the criminal penalty
for such subsequent offense(s) can be imposed upon him. Again, since Article 159 of
the Revised Penal Code defines a distinct, substantive, felony, the parolee or convict
who is regarded as having violated the provisions thereof must be charged,
prosecuted and convicted by final judgment before he can be made to suffer the
penalty prescribed in Article 159.
Succinctly put, in proceeding against a convict who has been conditionally
pardoned and who is alleged to have breached the conditions of his pardon, the
Executive Department has two options:
(i) to proceed against him under Section 64 (i) of the Revised Administrative
Code; or
(ii) to proceed against him under Article 159 of the Revised Penal Code which
imposes the penalty of prision correccional, minimum period, upon a convict who
"having been granted conditional pardon by the Chief Executive, shall violate any of
the conditions of such pardon."
Here, the President has chosen to proceed against the petitioner under
Section 64 (i) of the Revised Administrative Code. That choice is an exercise of the
President's executive prerogative and is not subject to judicial scrutiny.

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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.
As a rule, if the condition of the pardon is violated when the
remaining unserved portion of the sentence has already lapsed, there will
be no more criminal liability for the violation. However, the convict
maybe required to serve the unserved portion of the sentence, that is,
continue serving original penalty.
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.
In order that the conditional pardon may be violated, it is conditional that the
pardonee received the conditional pardon. If he is released without conformity to
the conditional pardon, he will not be liable for the crime of evasion of service of
sentence.
Question & Answer
Is the violation of conditional pardon a substantive offense?
Under Article 159, there are two situations provided:
There is a penalty of prision correccional minimum for the violation of the
conditional pardon;
(2)
There is no new penalty imposed for the violation of the conditional pardon.
Instead, the convict will be required to serve the unserved portion of the
sentence.
If the remitted portion of the sentence is less than six years or up to six
years, there is an added penalty of prision correccional minimum for the violation
of the conditional pardon; hence, the violation is a substantive offense if the
remitted portion of the sentence does not exceed six years because in this case a
new penalty is imposed for the violation of the conditional pardon.
But if the remitted portion of the sentence exceeds six years, the violation
of the conditional pardon is not a substantive offense because no new penalty is
imposed for the violation.
In other words, you have to qualify your answer.
The Supreme Court, however, has ruled in the case of Angeles v. Jose that
this is not a substantive offense. This has been highly criticized.
(1)

Chapter Seven
COMMISSION OF ANOTHER CRIME DURING
SERVICE OF PENALTY IMPOSED FOR ANOTHER
PREVIOUS OFFENSE
ARTICLE 160
COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED
ON OTHER PREVIOUS OFFENSE.

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A. Elements
1. That the offender was already convicted by final judgment of one offense .
2. That he committed a new felony before beginning to serve such sentence
or while serving the same
* 1st crime need not be a felony, 2nd crime must be a felony
NOTA BENE:
This is also called QUASI-RECIDIVISM, a special aggravating circumstance.
Q: a person is convicted of a crime. After final judgement, he committed another crime a
violation of BP 22.is he a quasi-recidivist or not?
A: NO because the 2nd crime, in order for article 160 to be applicable, must be a crime
punishable under the REVISED PENAL CODE. It must be a FELONY (A FELONY IS AN ACT
OR OMMISSION VILATIVE OF THE RPC). BUT THE FIRST CRIME UPON WHICH HE
WAS CONVICTED BY FINAL JUDGEMENT NEED NOT BE A FELONY. It may be a violation
of a special law.

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TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST
NOTA BENE:
Crimes against public interest is a crime against the public in general. It is fraud directed
against the public. If the crime or fraud is directed against an individual, the crime is ESTAFA
(usually in estafa the private person is the offended party)

Chapter One
FORGERIES
Section One. Forging the seal of the Government of the Philippine
Islands, the signature or stamp of the Chief Executive
ARTICLE 161
COUNTERFEITING THE GREAT SEAL OF THE GOVT OF THE PHIL., FORGING
THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE.
A. Acts punishable
1. Forging the Great Seal of the Government of the Phils.
2. Forging the signature of the President .
3. Forging the stamp of the President .
NOTA BENE:
This is a special crime of forgery. This is not any ordinary forgery.
If you forge the signature of the president purportedly in his official capacity, you will NOT be
charge with FORGERY. The crime is FORGING THE SIGNATURE OF THE PRESIDENT.
That is the correct designation of the crime. but if you forge the signature of the president
purportedly done in his private capacity(not in his official capacity as chief executive),the
crime is falsification, not forgery, making it appear that a person participated in an act or
procedure when he did not in fact so participated.
GOOD FAITH is a defense.
ARTICLE 162
USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP
A. Elements
1. That the Great Seal of the Republic is counterfeited or the signature or
stamp of the Chief Executive was forged by another person .
2. That the offender knew of the counterfeiting or forgery .
3. That he used the counterfeit seal or forged signature or stamp .
Section Two. Counterfeiting Coins
ARTICLE 163
MAKING,IMPORTING AND UTTERING FALSE COINS
A. Elements
1. That there be false or counterfeited coins
2. That the offender either made, imported or uttered such coins
3. That in case of uttering such false or counterfeited coins, he connived with
the counterfeiter or importers
NOTA BENE:

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In uttering there MUST be CONNIVANCE with counterfeiters or importers. Otherwise, there


is no crime under article 163. But there is another crime in the other provisions of the RPC but
not article 163. (take note that it is very important that in an information for uttering false
coins there be an allegation that there is connivance with counterfeiters or importers
otherwise, case will be dismissed because there is no crime.)
The meaning of import is to bring in to the port false coins
To utter is to pass, to circulate or to deliver counterfeited coins
ARTICLE 164
MUTILATION OF COINS
A. Acts Punishable
1. Mutilating coins of legal currency, with intent to damage or defraud another
2. Importing or uttering mutilated coins, in connivance with the mutilator or
importer in case
of uttering
NOTA BENE:
Remember that the coins mutilated must be a coin of LEGAL TENDER.
If you mutilate coins which are not Philippine coins, no crime
Here there must also be connivance with counterfeiters and/or importers/mutilator.
Coins of foreign currency is NOT INCLUDED.
Mutilation is taking off part of the metal either by filing it or substituting it for another metal
of inferior quality.
The first acts of falsification or falsity are
(1)
(2)
(3)

Counterfeiting refers to money or currency;


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;
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 the crime
of counterfeiting, the law wants to prevent people from trying their ingenuity in
their imitation of the manufacture of money.
It is not necessary that the coin counterfeited be legal tender. So that even if the
coin counterfeited is of vintage, the crime of counterfeiting is committed. The
reason is to bar the counterfeiter from perfecting his craft of counterfeiting. The
law punishes the act in order to discourage people from ever attempting to gain
expertise in gaining money. This is because if people could counterfeit money
with impunity just because it is no longer legal tender, people would try to

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counterfeit non-legal tender coins. Soon, if they develop the expertise to make
the counterfeiting more or less no longer discernible or no longer noticeable, they
could make use of their ingenuity to counterfeit coins of legal tender. From that
time on, the government shall have difficulty determining which coins are
counterfeited and those which are not. It may happen that the counterfeited coins
may look better than the real ones. So, counterfeiting is penalized right at the
very start whether the coin is legal tender or otherwise.

Question & Answer


X has in his possession a coin which was legal tender at the time of
Magellan and is considered a collectors item. He manufactured several pieces of
that coin. Is the crime committed?
Yes. It is not necessary that the coin be of legal tender. The provision
punishing counterfeiting does not require that the money be of legal tender and
the law punishes this even if the coin concerned is not of legal tender in order to
discourage people from practicing their ingenuity of imitating money. If it were
otherwise, people may at the beginning try their ingenuity in imitating money not
of legal tender and once they acquire expertise, they may then counterfeit money
of legal tender.
(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.

Mutilation is being regarded as a crime because the coin, being of legal tender, it
is still in circulation and which would necessarily prejudice other people who may
come across the coin. For example, X mutilated a P 2.00 coin, the octagonal one,
by converting it into a round one and extracting 1/10 of the precious metal dust
from it. The coin here is no longer P2.00 but only P 1.80, therefore, prejudice to
the public has resulted.
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 the coin
whose metal content has been depreciated through scraping, scratching, or filing
the coin and the offender collecting the precious metal dust, even if he would use
the coin after its intrinsic value had been reduced, nobody will accept the same. If
it is not legal tender anymore, no one will accept it, so nobody will be defrauded.

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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.
In the example, if the offender has collected 1/10 of the P 2.00 coin, the coin is
actually worth only P 1.80. He is paying only P1.80 in effect defrauding the seller
of P .20. Punishment for mutilation is brought about by the fact that the intrinsic
value of the coin is reduced.
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.
Presidential Decree No. 247 (Defacement, Mutilation, Tearing, Burning or
Destroying Central Bank Notes and Coins)
It shall be unlawful for any person to willfully deface, mutilate, tear, burn, or
destroy in any manner whatsoever, currency notes and coins issued by the Central
Bank.
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
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.
3.
Sometime before martial law was imposed, the people lost
confidence in banks that they preferred hoarding their money than depositing it in
banks. Former President Ferdinand Marcos declared upon declaration of martial
law that all bills without the Bagong Lipunan sign on them will no longer be
recognized. Because of this, the people had no choice but to surrender their
money to banks and exchange them with those with the Bagong Lipunan sign on
them. However, people who came up with a lot of money were also being charged
with hoarding for which reason certain printing presses did the stamping of the
Bagong Lipunan sign themselves to avoid prosecution. Was there a violation of
Presidential Decree No. 247?

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Yes. This act of the printing presses is a violation of Presidential Decree No.
247.
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 onecentavo 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.
ARTICLE 165
SELLING OF FALSE OR MUTILATED COINS WITHOUT CONNIVANCE
A. Elements
1. Possession of coin, (counterfeited or mutilated)
a. Possession
b. With intent to utter, and
c. Knowledge that coin is false
2.

Actually uttering such false or mutilated coin


a. Actually uttering, and
b. Knowledge that coin is false
*does not require that the counterfeited coin is legal tender

NOTA BENE:
Acts punished:

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1.
2.
3.

Possession of coins mutilated or counterfeited by another person with intent to


utter the same knowing that it is mutilated.
Actually uttering such false or mutilated coins knowing the same to be false or
mutilated
Forging treasury or bundles, obligations and securities, importing and uttering
ports, notes obligations and securities.

4.
Take note: a coin collector cannot be held liable under article 164 and 165.
Section Three. Forging treasury or bank notes, etc
ARTICLE 166
FORGING TREASURY OR BANK NOTES, or OTHER DOCUMENTS PAYABLE TO
BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND
DOCUMENTS
Three acts punished:
1.
forging or falsification of treasury or bank notes or other documents payable to bearer
2. importation of such false or forged obligations or notes
3. uttering of such false or forged obligations or notes in connivance with the forgers or
importers
ARTICLE 167
COUNTERFEITING, IMPORTING,
PAYABLE TO BEARER

OR

UTTERING

INSTRUMENTS

NOT

A. Elements
1. That there be an instrument payable to order or other document of credit
not payable to bearer
2. That the offender either forged , imported or uttered such instrument
3. 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 INSTRUMENTS OF CREDIT
A. Elements
1. That any treasury or bank note of 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
2. That the offender knows that any of those instruments is forged or
falsified
3. That he performs any of these acts
a. using any of such forged or falsified instruments ; or
b. possessing with intent to use any of such forged or falsified
instruments.
Any person who shall knowingly use or have in his possession, WITH INTENT TO
USE, any of the false or falsified documents referred to in this section is punished
Remember that in possession there must be intent to use, because intent to possess is
not intent to use.
ARTICLE 169
HOW FORGERY IS COMMITTED

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1.
2.

BY GIVING TO A TREASURY OR BANK NOTE OR ANY INSTRUMENT PAYABLE TO


BEARER OR TO ORDER MENTIONED THEREIN, THE APPEARANCE OF A TRUE
AND GENUINE DOCUMENT
BY ERASING, SUBSTITUTING, COUNTERFEITING, OR ALTERING BY ANY MENAS
THE FIGURES, LETTERS, WORDS, OR SIGN CONTAINED THEREIN.

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.
The Revised Penal Code defines forgery under Article 169. 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?
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 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-

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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.
Section Four. Falsification of legislative, public, commercial, and private
documents, and wireless, telegraph, and telephone message.
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.
Five classes of falsification:
(1)
(2)
(3)
(4)
(5)

Falsification
Falsification
Falsification
individual;
Falsification
Falsification

of legislative documents;
of a document by a public officer, employee or notary public;
of a public or official, or commercial documents by a private
of a private document by any person;
of wireless, telegraph and telephone messages.

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.
ARTICLE 170
FALSIFICATION OF LEGISLATIVE DOCUMENTS
A. Elements
1. That there be a bill , resolution or ordinance enacted or approved or
pending approval by the Congress of any provincial board or municipal
council
2. That the offender alters the same
3. That he has no proper authority thereof

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4.

That the alteration has changed the meaning of the document

NOTA BENE:
This is also a special kind of falsification, as distinguished from falsification of public, official,
commercial and private documents.
In falsification of legislative documents, the documents should be genuine. You cannot falsify a
fake legislative document but it does not mean that there is no crime committed, there is. it is
ordinary falsification. It false under feigning or imitating.
Q: DISTINGUISH FORGERY FROM FALSIFICATION
A: In FORGERY used in article 169 refers to the falsification and counterfeiting of treasury
and bank notes or any instruments payable to bearer or order
In falsification, it is the commission of any of the 8 acts mentioned in article 171 on
legislative, public, official, commercial, or private documents or wireless or telegraph
messages.
ARTICLE 171
FALSIFICATION BY PUBLIC
ECCLESISTICAL MINISTER

OFFICER,

EMPLOYEE;

OR

NOTARY

OR

A. Elements
1. That the offender is a public officer , employee , or notary or ecclesiastical
minister
2. That he took advantage of his official position
3. That he falsifies a document by committing any of the following acts :
a. Counterfeiting or imitating any handwriting, signature or rubric;
b. Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
c. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
d. Making untruthful statements in a narration of facts;
e. Altering true dates;
f. Making any alteration or intercalation in a genuine document
which changes its meaning;
g. Issuing in an authenticated form a document purporting to be a
copy of an original document when no such original exists, or
including in such a copy a statement contrary to, or different
from, that of the genuine original; or
h. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book.
This should be read together with ARTICLE 172 FALISIFICATION BY PRIVATE
INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS.
Q: who are the offenders / persons penalized here?
A:
1. public officers
2. public employees
3. notary
4. ecclesiastical minister
Note: in the case of a public officer, he must take advantage of his official position. If he
falsified the document without taking advantage of his official position, it is not falsification
under article 171 but falsification under article 172.

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Q: what is the meaning of taking advantage of official position?


A: the offender takes advantage of his official position when he has the duty to make or to
prepare or otherwise intervene in the preparation of a document of he has the official custody
of the document which he falsifies.
Q; must there be a genuine document in falsification?
A: yes, in two cases only:
1. making alteration or intercalation or
2. including in a copy different statements
In falsification the documents may be simulated or fabricated; the falsification of a public
document need not be made in an official form. It is sufficient that the document is given the
appearance of, or made to appear similar to, the official form. Meaning you can make your
own document which is false. As a matter of fact this is the essence of falsification.
For example, a customer in a hotel did not write his name on the registry book,
which was intended to be a memorial of those who got in and out of that hotel.
There is no complete document to speak of. The document may not extinguish or
create rights but it can be an evidence of the facts stated therein.
Note that a check is not yet a document when it is not completed yet.
somebody writes on it, he makes a document out of it.

If

The document where a crime was committed or the document subject of the
prosecution may be totally false in the sense that it is entirely spurious. This
notwithstanding, the crime of falsification is committed.
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.

Questions & Answers


1.
A is one of those selling residence certificates in Quiapo. He was
brought to the police precincts on suspicion that the certificates he was selling to
the public proceed from spurious sources and not from the Bureau of Treasury.
Upon verification, it was found out that the certificates were indeed printed with a
booklet of supposed residence certificates. What crime was committed?
Crime committed is violation of Article 176 (manufacturing and possession
of instruments or implements for falsification). A cannot be charged of falsification
because the booklet of residence certificates found in his possession is not in the
nature of document in the legal sense. They are mere forms which are not to be
completed to be a document in the legal sense. This is illegal possession with
intent to use materials or apparatus which may be used in counterfeiting/forgery
or falsification.
2.
Public officers found a traffic violation receipts from a certain
person. The receipts were not issued by the Motor Vehicle Office. For what crime
should he be prosecuted for?

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It cannot be a crime of usurpation of official functions. It may be the


intention but no overt act was yet performed by him. He was not arrested while
performing such overt act. He was apprehended only while he was standing on
the street suspiciously. Neither can he be prosecuted for falsification because the
document is not completed yet, there being no name of any erring driver. The
document remains to be a mere form. It not being completed yet, the document
does not qualify as a document in the legal sense.
4.

Can the writing on the wall be considered a document?

Yes. It is capable of speaking of the facts stated therein. Writing may be


on anything as long as it is a product of the handwriting, it is considered a
document.
5.
In a case where a lawyer tried to extract money from a spinster by
typing on a bond paper a subpoena for estafa. The spinster agreed to pay. The
spinster went to the prosecutors office to verify the exact amount and found out
that there was no charge against her. The lawyer was prosecuted for falsification.
He contended that only a genuine document could be falsified. Rule.
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.
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.
For example, a customer in a hotel did not write his name on the registry book,
which was intended to be a memorial of those who got in and out of that hotel.
There is no complete document to speak of. The document may not extinguish or
create rights but it can be an evidence of the facts stated therein.
Note that a check is not yet a document when it is not completed yet.
somebody writes on it, he makes a document out of it.

If

The document where a crime was committed or the document subject of the
prosecution may be totally false in the sense that it is entirely spurious. This
notwithstanding, the crime of falsification is committed.

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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.

Questions & Answers


1.
A is one of those selling residence certificates in Quiapo. He was
brought to the police precincts on suspicion that the certificates he was selling to
the public proceed from spurious sources and not from the Bureau of Treasury.
Upon verification, it was found out that the certificates were indeed printed with a
booklet of supposed residence certificates. What crime was committed?
Crime committed is violation of Article 176 (manufacturing and possession
of instruments or implements for falsification). A cannot be charged of falsification
because the booklet of residence certificates found in his possession is not in the
nature of document in the legal sense. They are mere forms which are not to be
completed to be a document in the legal sense. This is illegal possession with
intent to use materials or apparatus which may be used in counterfeiting/forgery
or falsification.
2.
Public officers found a traffic violation receipts from a certain
person. The receipts were not issued by the Motor Vehicle Office. For what crime
should he be prosecuted for?
It cannot be a crime of usurpation of official functions. It may be the
intention but no overt act was yet performed by him. He was not arrested while
performing such overt act. He was apprehended only while he was standing on
the street suspiciously. Neither can he be prosecuted for falsification because the
document is not completed yet, there being no name of any erring driver. The
document remains to be a mere form. It not being completed yet, the document
does not qualify as a document in the legal sense.
4.

Can the writing on the wall be considered a document?

Yes. It is capable of speaking of the facts stated therein. Writing may be


on anything as long as it is a product of the handwriting, it is considered a
document.
5.
In a case where a lawyer tried to extract money from a spinster by
typing on a bond paper a subpoena for estafa. The spinster agreed to pay. The
spinster went to the prosecutors office to verify the exact amount and found out
that there was no charge against her. The lawyer was prosecuted for falsification.
He contended that only a genuine document could be falsified. Rule.
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.
There are four kinds of documents:

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(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.
I]
COUNTERFEITING OR IMITATING (FEIGNING) ANY HANDWRITING,
SIGNATURE OR RUBRIC
Requisites of counterfeiting:
1. intent to imitate or attempt to imitate
2. the two signatures or handwritings, the genuine and the forged, bear some
resemblance to each other
II]
CAUSING IT TO APPEAR THAT A PERSON HAS PARTICIPATED IN ANY
ACT OR PROCEEDING WHEN THEY DID NOT IN FACT SO PARTICIPATED
Illustration: a lawyer prepares a deed of sale where X sold a parcel of land to Y where in fact
there was no sale.
In falsification under article 171 (2), the document need not be an authentic
official paper and the signatures thereof need not necessarily be forged. Simulation
is the essence of falsification in this section.
NIZURTADO vs. SANDIGANBAYAN and PEOPLE
G.R. No. 107383. December 7, 1994
Petitioner was able to encash the check on 18 October 1988 on the basis of a
resolution of the Barangay Council, submitted to the KKK Secretariat, to the effect
that a livelihood project, i.e., "T-shirt manufacturing," had already been identified
by the council. The money, however, instead of its being used for the project, was
later lent to, along with petitioner, the members of the Barangay Council.
Undoubtedly, the act constituted "misappropriation" within the meaning of the law.
Accused-appellant was charged with having committed the crime through the
falsification of a public document punishable under paragraph 2 of Article 171 of the
Revised Penal Code.
In falsification under Art 171, par 2, the document need not be an authentic
official paper since its simulation, in fact, is the essence of falsification. So, also, the
signatures appearing thereon need not necessarily be forged.
In concluding that the Barangay Council resolution, Exhibit "D," was a
falsified document for which petitioner should be held responsible, the
Sandiganbayan gave credence to the testimonies of Barangay Councilman Santos A.

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Gomez and Barangay Treasurer Manuel P. Romero. The two testified that no
meeting had actually taken place on 25 August 1983, the date when "T-shirt
manufacturing" was allegedly decided to be the barangay livelihood project. The
Sandiganbayan concluded that Nizurtado had induced Romero and Gomez to sign
the blank resolution, Exhibit "J" on the representation that Romero's proposal to
build a barangay service center would so later be indicated in that resolution as the
barangay livelihood project.
In falsification under article 171 (2), the document need not be an authentic
official paper and the signatures thereof need not necessarily be forged.
III] ATTRIBUTING TO PERSONS WHO HAVE PARTICIPATED IN ANY ACT OR
PROCEEDING STATEMENTS OTHER THAN IN FACT MADE BY THEM
SEE case of U.S. vs CAPULE
IV]

MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS


Here the offender has a legal obligation to disclose the truth of the facts narrated by
him. The facts narrated by the offender are absolutely false and that the perversion of truth in
the narration of facts was made with wrongful intent of injuring a third person.
Case in Sandiganbayan which reached the SC: a municipal mayor who issued a
certification to the effect that there is available funds for a certain position in that municipality
when in fact there were no funds appropriated for the purpose and when in fact also the
position did not exist (so all the requisites under paragraph 4 are present). Certification is a
statement in the narration of facts. The mayor has an obligation to disclose the facts. What he
did was falsification because there was No position and no funds available because there was
no appropriation for the purpose by the council.
Q: what is legal obligation?
A: there is a law which requires the disclosure of the truth of facts narrated.
Example: if you apply for a position in the police force, you have to state that you have
no criminal record, either conviction or pending.
The person making the narration must be aware of the falsity of the facts narrated by him. in
that case of the municipal mayor he was aware of the falsity of the facts narrated in the
certification which was absolutely false.
Q: why is it that WRONGFUL INTENT is not essential when the document falsified is a public
document?
Reason:
Because it is the interest of the community which is intended to be guaranteed by the
strictest faithfulness of officials.
People should trust a public document. There should be full faith and
credit on public documents.
No Falsification if the correction is done to speak the truth and provided that there
is no legal obligation to disclose the same
CABIGAS vs. PEOPLE
G.R. No. L-67472. July 3, 1987
"The question now is, who caused the alterations and what was the
purpose behind them."

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It is a settled doctrine that in falsification by an employee under par. No. 4 of


Article 171, which reads "by making untruthful statements in a narration of facts,"
the following elements must concur
(a)
That the offender makes in a document untruthful statements in a
narration of facts;
(b)
That he has a legal obligation to disclose the truth of the facts
narrated by him;
(c)
That the facts narrated by the offender are absolutely false; and
(d)
That the perversion of truth in the narration of facts was made with
the wrongful intent of injuring a third person.
Herein petitioner contends that the foregoing elements are not present in the
case at bar. The correction of the figure from 1,539 to 1,533 pieces to conform to the
actual number of treasury under custody is not falsification because it was made to
speak the truth.
The placing of an asterisk sign after the figure "1,533" and writing the words,
"Adjustment on erroneous entry (incoming) dated 3/09/82" as legend of the
asterisk sign, contrary to the ruling of the respondent court, was not effected to hide
or conceal the fact that the missing 6 treasury bills were lost. It would be far more
difficult to detect or discover the loss if there was no asterisk or footnote in the DR
SDUC, Exh. G. In fact, the evidence discloses that immediately upon discovery of
the loss on March 29, 1982, petitioner reported the matter to his immediate
supervisor, Estela L. Espiritu and Branch Manager of the Securities Section, Aurora
Pigram. This shows good faith and lack of motive on the part of petitioner to conceal
the said loss.
The Honorable Solicitor General recommends that the accused be acquitted
because
"There is nothing to show the DR SDUC dated March 30, 1982, Exh. G, for the
alleged falsification of which petitioner was convicted in Criminal Case No. 6938 is
a form the submission of which was or is required by law. In the petition for review,
petitioner points out that as testified by him the form was not an official form of the
Land Bank. The form was his own initiative adopted 'for our own convenience and
also for reference purposes.' Petitioner therefore, was not under legal obligation to
disclose or reveal the truth by said DR SDUC. In the absence of such obligation and
of the alleged wrongful intent, defendant cannot be legally convicted of the crime of
falsification of public document with which he is charged.
SC acquitted the accused.
Erroneous conclusion of law cannot be considered as falsification in a narration of
facts
PEOPLE vs. TUGBANG and SETIAS
G.R. No. 76212. April 26, 1991
FALSIFICATION OF COMMERCIAL DOCUMENTS; WORD "STATEMENTS"
IN ARTICLE 171 OF REVISED PENAL CODE REFERS TO STATEMENT MADE IN
DOCUMENTS. Article 172 of the Revised Penal Code punishes any private
individual who shall commit any of the falsification enumerated in Article 171 in any
public or official document or letter of exchange or any other kind of commercial
document. One of the acts of falsification enumerated in Article 171 under which,
based on the above quoted portion of the decision, the accused were convicted of is
by making "untruthful statements in a narration of facts." The word "statements"
under the Article, however, refers to statements made in a document and not oral
recitations of facts.

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This is clear enough from the wordings of Article 172 when it mentions
falsifications in "public or official document" or "letter of exchange" or in
"commercial document." Being so, it is erroneous to consider the failure of the
accused to disclose to Gloria de los Santos that her money was to be invested at
Rochel General Merchant and not at SouthWest Development Corporation as
constituting falsification by false narration of facts.
DRAWING CHECKS WHICH HAVE NO CORRESPONDING DEPOSIT TO
COVER IT IS NOT FALSIFICATION. Equally clear is the error of the trial court to
consider the act of the accused in drawing checks which have no corresponding
deposit to cover it in the drawee bank as falsification. The amount written on a
check is not a narration of facts made by the drawer representing that he has money
in the bank but rather a check is an order in writing addressed to the drawee bank
to pay the "holder" of the check the amount written thereon (See Sections 126 and
185, Negotiable Instruments Law). The untruthful statement must refer to a
narration of facts and by narration of facts is meant a recital of things accomplished,
of deeds, occurrence or happening. Thus, a statement expressing an erroneous
conclusion of law cannot be considered as falsification and more certainly, as in
this case, neither is an "order" to pay a narration of facts.
V]

ALTERING TRUE DATES


In altering true dates the date altered must be essential.

VI]
MAKING ALTERATION OR INTERCALATION IN GENUINE DOCUMENT
WHICH CHANGES ITS MEANING
There is falsification if the intention is for the document to speak falsehood. If the
purpose of the person is to speak the truth, there is no falsification. Illustration: if you have
a residence certificate, the date of birth was mistakenly placed therein, you changed it, and it is
not falsification because you want the truth to be reflected on your tax certificate. It is
falsification and not correction, which the law punishes. Falsification carries with it the
elements of DECEIT AND FRAUD upon the public.
It is falsification and not correction that the law punishes.
The intention of falsification is for the document to speak falsely and this is an essential
element of the act of falsification.
VII] ISSUING IN AUTHENTICATED FORM A DOCUMENT PURPORTING TO BE
A COPY OF AN ORIGINAL DOCUMENT WHEN NO SUCH ORIGINAL EXISSTS,
OR INCLUDING IN SUCH A COPY A STATEMENT CONTRARY TO, OR
DIFFERENT FROM, THAT OF THE GENUINE ORIGINAL.
Intent to gain or prejudice is not necessary. It will be noted that in article 171 it is the
official character of the offender which may be taken into consideration, the idea
of gain or intent to cause damage to another person is not necessary because it is
the interest of the community which is intended to be guaranteed by the strictest
faithfulness by the official charged with the preparation and the preservation of
the acts in which they intervene.

ARTICLE 172
FALSIFICATION
DOCUMENTS

BY

PRIVATE

INDIVIDUALS

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AND

USE

OF

FALSIFIED

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There are 3 acts punished:


1.

falsification of public, official or commercial document by a private individual ( this can


also be committed by a public officer or employee who did the act of falsification in his
private or personal capacity, meaning he did it in his own capacity and he did not take
advantage of his official position. What is punished here is the violation of public faith. As
said before we should rely more on public documents. The destruction of the truth as
therein solemnly proclaimed is penalized. So lack of malice or criminal intent is a defense
of falsification of a public document. So if the offender is not aware of the falsified
character of the document then he is not liable. Remember that this is the Revised Penal
Code and not a special law/mala prohibita where intent is not necessary or it is material,
in RPC intent is necessary. in mala prohibita, what is necessary or material is intent to
perpetrate the crime)

2. falsification of private documents by any person


(requirement:
a. that the offender committed any of the acts of falsification except those in
paragraph 7 enumerated in article 171
b. the falsification is committed in a private document
c. that there is intent to cause damage to a 3 rd party or at least the falsification was
committed with intent to cause such damage)
Here INTENT TO CAUSE DAMAGE is necessary. mere falsification is not enough.
Q: what is meant by with intent to cause such damage?
A: it means that the offender performs some other independent act in order to make use of
it, an act which while it does not cause prejudice to a third party, has been done
nevertheless with the intention to cause such damage or prejudice.
It is not necessary that the offender profited or hoped to profit from such falsification.
Falsification may be a necessary means to commit the crime of estafa, theft, or
malversation. The two crimes form a complex crime under article 148, where one crime is
a necessary means of committing the another crime. but the document in this complex
crime must be public, official or commercial document. The falsification of a public,
official or private document may be a means of committing estafa because before the
falsified document was actually utilized to defraud another the crime of falsification has
already been consummated. Damage or intent to cause damage not being an element of
the crime of falsification of public, official or commercial document. But if the falsified
document is a private document, there is no crime, unless another fact independent of that
falsifying the document, is proved-DAMAGE OR INTENT TO CAUSE DAMAGE.
NOTA BENE: TAKE NOTE: VERY IMPORTANT:
THERE ARE COMPLEX CRIMES SUCH AS:
1. ESTAFA THRU FALSIFICATION OF A PUBLIC DOCUMENT
2. THEFT THRU FALSIFICATION OF OFFICIAL DOCUMENT
3. ESTAFA THRU FALSIFICATIONOF COMMERCIAL DOCUMENT BY
RECKLESS IMPRUDENCE
4. MALVERSATION THRU FALSIFICATION OF PUBLIC DOCUMENT
BUT THERE IS NO COMPLEX CRIME OF ESTAFA THRU FALSIFICATION

OF A PRIVATE DOCUMENT because the immediate effect of

falsification of a private document is the same as that of estafa.


The falsification of a private document cannot be said to be a
means of committing estafa
because the fraudulent gain
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obtained thru deceit in estafa is nothing more than the very


damage caused by the falsification of such document.
Estafa thru falsification of public document (notarized SPA)
Villalon versus De Guzman
G.R. No. 43659. December 21, 1990
The falsification of a public document may be a means of committing estafa
because before the falsified document is actually utilized to defraud another, the
crime of falsification has already been consummated, damage or intent to cause
damage not being an element of the crime of falsification of public, official or
commercial documents. The damage to another is caused by the commission of
estafa, not by the falsification of the document, hence, the falsification of the public,
official or commercial document is only a necessary means to commit the estafa.
x
x
x
The document which was allegedly falsified was a notarized special power of
attorney registered in the Registry of Deeds of Dagupan City on February 13, 1964
authorizing private respondent to mortgage a parcel of land covered by Transfer
Certificate of Title No. 47682 in order to secure a loan of P8,500.00 from the
People's Bank and Trust Company. The information for estafa thru falsification of a
public document was filed only on March 29, 1974. We reject petitioner's claim that
the ten-year period commenced when complainant supposedly discovered the crime
in January, 1972 by reason of the ejectment suit against him.
3. use of falsified document
Mere blank form of an official document is not in itself a document. It becomes a document
only when it is accomplished or filled up.
DAVA vs. PEOPLE, ET AL
G.R. No. 73905 September 30, 1991
CRIMINAL LAW; USE OF FALSIFIED DOCUMENTS; ELEMENTS. The
elements of the crime of using a falsified document in any transaction (other than as
evidence in a judicial proceeding) penalized under the last paragraph of Article 172
are the following: (a) the offender knew that a document was falsified by another
person; (b) the false document is embraced in Article 171 or in any of subdivisions
Nos. 1 and 2 of Article 172; (c) he used such document (not in judicial proceedings),
and (d) the use of the false document caused damage to another or at least it was
used with intent to cause such damage.
DRIVER'S LICENSE CONSIDERED PUBLIC DOCUMENT. A driver's license is a
public document within the purview of Articles 171 and 172. The blank form of the
driver's license becomes a public document the moment it is accomplished. Thus,
when driver's license No. 2706887 was filled up with petitioner's personal data and
the signature of the registrar of the San Fernando LTC agency was affixed therein,
even if the same was simulated, the driver's license became a public document.
INTENT TO CAUSE DAMAGE; IMMATERIAL. The driver's license being a
public document, proof of the fourth element of damage caused to another person
or at least an intent to cause such damage has become immaterial. In falsification of
public or official documents, the principal thing being punished is the violation of
the public faith and the destruction of the truth proclaimed therein.

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Introduction of falsified document in judicial proceedings = the offender introduces in


evidence the falsified document in any judicial proceedings, here must be an element of
damage or intent to cause damage.
If use in any other proceedings other than judicial, there must be also an element of damage or
intent to cause damage.
Suppose you are prosecuted for falsification of public document, you cannot be charged of
USE of falsified public document. But if a person is charged with a public or commercial
document and he is acquitted, he can now be charged of Use of Falsified document if he was
aware at the time when he use the document that such document is falsified.
If you falsify a document for the purpose of obstructing the prosecution of a criminal offender,
you can also be liable under PD 1829 OBSTRUCTION IN THE PROSECUTION OF CRIMINAL
OFFENDERS
***********
There is a principle in jurisprudence that the possessor of a falsified document is presumed to
be the author of the falsification.
Alonzo vs.IAC
G.R. No. L-68624. June 30, 1987
The fact that the petitioner prepared the voucher, considering it was his official duty to
prepare the payroll, vouchers, and other documents assigned to him is not a sufficient reason for
the respondent court to conclude that "there is no doubt that the forgery or falsification was
effected by the appellant." Unfortunately, the respondent court mistakenly applied the rule that:
"one found in possession of and who used a forged document is the forger or the one who caused
the forgery and, therefore, is guilty of falsification. The accused is entitled to the constitutional
presumption of innocence especially where the evidence on the alleged forged voucher is extremely
doubtful.
PECHO vs. SANDIGANBAYAN and PEOPLE
G.R. No. 111399. November 14, 1994
x
x
x
There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were the
authors of the falsification. Nevertheless, since it was shown with moral certainty from the
testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents
and personally delivered them to Dennis Calica and that they showed extraordinary personal
interest in securing the release of the cargoes for a fictitious importer, then the petitioner and
Catre are presumed to be the authors of the falsified documents.
A rule, well-buttressed upon reason, is that in the absence of satisfactory explanation one
found in possession of and who used a forged document is the forger and therefore guilty of
falsification. It is, however, essential that the use must be so closely connected in time with the
forging such that the utterer or user may be proved to have the capacity of forging, or such close
connection with the forger that it becomes, when so accomplished, probable proof of complicity in
the forgery.
x
x
x
In People vs. Sendaydiego, this Court reiterated the rule thus:
"The rule is that if a person had in his possession a falsified document and he made use of it
(uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material
author of the falsification. This is especially true if the use or uttering of the forged documents was
so closely connected in time with the forgery that the user or possessor may be proven to have the
capacity of committing the forgery, or to have close connection with the forgers, and, therefore,
had complicity in the forgery.
In the absence of a satisfactory explanation, one who is found in possession of a forged
document and who used or uttered it is presumed to be the forger

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CAUBANG vs. PEOPLE


G.R. No. 62634. June 26, 1992
CRIMINAL LAW; FALSIFICATION OF PUBLIC DOCUMENTS; POSSESSOR AND USER
THEREOF; PRESUMED THE FORGER THEREOF. We are satisfied that the court a quo and
the respondent court did not err in relying upon the presumption that the possessor and user of a
falsified document is presumed to be the forger. The evidence conclusively shows that the
statement of assets and liabilities was net among those brought by the petitioner from Davao to
Manila. The statement was not an authentic representation of the assets and liabilities of the
BCASSI. It was surreptitiously signed by someone who imitated the signature of Baltazar
Pagaduan. Indeed, no forger could ever do this in the open. Forgery could easily be consummated
only by the forger alone or in the confidence of persons in connivance with him. The filing of the
previously inexistent document subjects the accused-petitioner to the inference that he used it as
part of the registration papers. In the absence of a credible and satisfactory explanation of how the
document came into being and then filed with the SEC, the accused is presumed to be the forger of
the signature of Pagaduan, and the one who prepared doubtful information on the financial status
of the proposed corporation The Court has similarly ruled in U.S. v. Castillo, 6 Phil. 453 [1906]
regarding the utterance of a check: "The utterance of such an instrument, when unexplained is
strong evidence tending to establish the fact that the utterer either himself forged the instrument
or caused it to be forged, and that this evidence, taken together with the further evidence set
out . . . and brought out on the trial of the case establishes the guilt of the accused with which he
was charged beyond a reasonable doubt."
In the case at bar, the filing of the statement of assets and liabilities remained unexplained.
This fact, together with other proofs presented by the prosecution, is strong evidence tending to
show that the accused Adolfo Caubang either himself forged the statement or caused it to be forged
by someone else. Worthy of note is the willingness of the accused to accomplish all that were
necessary to acquire a certificate of incorporation.
FALSE ENTRIES IN THE DOCUMENT; NOT MATERIAL TO THE PROSECUTION
THEREOF. The petitioner contends that there were absolutely no false entries in the statement
of assets and liabilities as to make its execution injurious or damaging to the government or third
parties. The claim is without merit. In the falsification of a public document such as Exhibit "B-2",
it is immaterial whether or not the contents set forth therein were false. What is important is the
fact that the signature of another was counterfeited.
INTENT TO GAIN OR TO INJURE; IMMATERIAL TO THE PROSECUTION THEREOF.
This is not to say that Exhibit "B-2" is a public document the falsification of which must have the
effect of damage that must first be proven. The Court is of the view that mere falsification by
forging the signature of Baltazar Pagaduan as to cause it to appear that Pagaduan has participated
in the execution of Exhibit "B-2," when he did not in fact so participate, makes the accusedpetitioner criminally liable. In a crime of falsification of a public or official document, the principal
thing punished is the "violation of the public faith and the destruction of the truth as therein
solemnly proclaimed." Thus, intent to gain or to injure is immaterial. Even more so, the gain or
damage is not necessary.
SABINIANO vs. CA and PEOPLE
G.R. No. 76490. October 6, 1995
CRIMINAL LAW; ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS; MERE
SIGNATURE OF APPROVAL APPEARING ON A VOUCHER, CHECK ON WARRANT NOT
ENOUGH TO SUSTAIN A FINDING OF CONSPIRACY; CASE AT BAR. Apart from petitioner's
signature on the treasury warrant, nothing else of real substance was submitted to show
petitioner's alleged complicity in the crime. A mere signature or approval appearing on a voucher,
check or warrant is not enough to sustain a finding of conspiracy among public officials and
employees charged with defraudation. Proof, not mere conjectures or assumptions, should be
proffered to indicate that the accused had taken part in, to use this Court's words in Arias vs.
Sandiganbayan, the "planning, preparation and perpetration of the alleged conspiracy to defraud
the government" for, otherwise, any "careless use of the conspiracy theory (can) sweep into jail
even innocent persons who may have (only) been made unwitting tools by the criminal minds"
really responsible for that irregularity. In the recent case of Magsuci V. Sandiganbayan, (240
SCRA 13) involving an accusation for estafa through falsification of public documents, where the
accused not only co-signed a check but also noted an accomplishment report and signed the
disbursement voucher with the usual certification on the lawful incurrence of the expenses to be
paid, the Court held: "Fairly evident, however, is the fact that the actions taken by Magsuci
involved the very functions he had to discharge in the performance of his official duties. There has

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been no intimation at all that he had foreknowledge of any irregularity committed by either or both
Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in
placing too much reliance on the official reports submitted by his subordinate (Engineer
Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to
commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of
cohorts." Here, in fact, the two vouchers supporting the treasury warrant bore what appeared to
petitioner to be the legitimate signatures of both Cresencio T. Balasbas, the Assistant Chief of the
Administrative Services Division of the Bureau of Lands, and Laureano Romero, in the office of the
Secretary of Agriculture and Natural Resources. Petitioner had no reason to doubt the authenticity
of the authorization given by two senior officials imprinted on the vouchers. Conformably with
Lands Memorandum Order No. 261-5 on the routing of vouchers for payment either by cash, PNB
check or treasury warrant, he signed the warrant after the chief accountant and the auditor had
affixed their own signatures.
ABSENCE OF SATISFACTORY EXPLANATION OF POSSESSION AND USE OF FORGED
DOCUMENT; RAISES PRESUMPTION OF GUILT; CASE AT BAR. It is settled that in the
absence of satisfactory explanation, one who is found in possession of, and who has used, a forged
document is the forger and therefore guilty of falsification. Petitioner's self-serving allegation that,
after encashing the warrant, he turned the money over to Balasbas, has not been corroborated, let
alone independently established.
Falsification and not correction that the law punishes
Not necessary that intent to gain is present
Good faith is a defense
SAREP vs. SANDIGANBAYAN
G.R. No. 68203. September 13, 1989
CRIMINAL LAW; FALSIFICATION OF PUBLIC DOCUMENT; GOOD FAITH, A DEFENSE;
NEGATED BY FACTS ON RECORD. The Court does not accept petitioner's defense of good
faith. He admitted that he knew that Director Pahm was not only uninclined to extend him a
permanent appointment due to his lack of civil service eligibility but he also did not authorize him
(Sarep) to follow up his appointment with the Civil Service Commission in Manila. More
importantly, he knew that if the falsified document had been presented before the CSC Regional
Office, it would have surely been attested as temporary only. Hence, he purposely avoided filing
the appointment paper with the CSC Regional Office, which is the practice and standard procedure
in the regional office of the Bureau of Soils and, instead, personally brought it to Manila where
somehow he was able to have it stamped approved as permanent.
FALSIFICATION, NOT CORRECTION, ESSENCE OF THE CRIME. We agree with the
respondent court that "(I)t is falsification, and not a correction, which the law punishes (People vs.
Mateo, 25 Phil. 324 Arriola vs. Republic, 103 Phil. 730)."
INTENT TO GAIN, NOT AN ELEMENT; RATIONALE. (I)n the falsification of public or
official documents, whether by public officials or by private persons, it is not necessary that there
be present the idea of gain or the intent to injure a third person, for the reason that, in
contradiction to private documents, the principal thing punished is the violation of the public faith
and the destruction of the truth as therein solemnly proclaimed
POSSESSION OF FALSIFIED DOCUMENT GIVES RISE TO A PRESUMPTION OF
AUTHORSHIP OF FALSIFICATION. Since petitioner is the only person who stood to benefit by
the falsification of the document that was found in his possession, it is presumed that he is the
material author of the falsification. Petitioner has failed to convince the Court that a person other
than himself made the erasures, alterations and superimpositions on the questioned appointment
paper.
GAMIDO vs. CA and PEOPLE
G.R. Nos. 111962-72. December 8, 1995
Petitioner was accused in 11 cases of forging the signature of the President of the Philippines
in the following documents and making it appear that the documents were genuine official
documents of the Republic of the Philippines.
x
x
x
Petitioner said that he was the Executive Director of the Presidential Regional Assistant
Monitoring Services, or PRAMS, having been appointed by then President Marcos and that his

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appointment and the related documents, subject of the prosecution, had been signed by the former
President in petitioner's presence.
x
x
x
However, the Director of the Malacaang Records Office, testified that his office did not
have a record of the documents. For his part Executive Secretary Juan C. Tuvera declared the
Presidential Regional Assistant Monitoring Services as nonexistent and its alleged Executive
Director, herein petitioner, as not in any capacity connected with the Office of the President.
From these premises it is rational to conclude that the documents in question, which
purport to have been signed by then President Marcos, are bogus documents. The trial court and
Court of Appeals correctly found petitioner to be the author of the forgery. The presumption is that
the possessor and user of a falsified document is the forger thereof.

If a person sign for another but the former is authorized by the latter there is no falsification.
The crime of falsification carries the elements deceit and fraud upon the public.
If the act done in the instrument is to speak the truth or correct, there is no crime of
falsification. If the accused acted in good faith and there is no damaged caused nor prejudice,
although the accused altered the document, there is no crime.
The existence of an unlawful intent to injure another is not necessary if the falsified document
is a public document. The principle is that in falsification of a public or official document
whether by a public officer or a private person, intent and damage not necessary. This is
because the principal thing punished is the violation of the public faith and the destruction of
the truth as therein proclaimed. The act of falsification itself in a private or official document is
penalized to maintain faith to those documents. Reason also is that public interest is involved.
In private document, unlawful intent and damage and injury to another is necessary. So have
to prove damage because it is an essential element I prosecuting falsification of a private
document. Private interest is involved.
When we speak of counterfeiting, we refer to money.
When we speak of forgeries, we refer to obligations and securities or credit
Q: how do we distinguish forgeries and falsification?
A:
- There are two ways of committing forgeries and eight ways of committing
falsifications.
- Forgeries refer to treasuries and bank notes or similar instruments while falsification
apply to public, private, commercial or official documents.
Q: is there estafa through falsification of private document?
A: NO!
Remember that in falsification of private documents, there is an element of damage. In estafa,
also there is an element of damage. So you can see that in both crimes, in falsification of a
private document and in estafa there is a common element which is damage, it is well settled
in jurisprudence that you cannot use 1 element in two crimes, you can only use 1 element in 1
crime. Otherwise, you will be violating the provisions on double jeopardy.

Updates in FALSIFICATION (2003-2008)


Under Article 171, par. 2, a person may commit falsification of a private document by causing it to appear in a
document that a person or persons participated in an act or proceeding, when such person or persons did not in
fact so participate in the act or proceeding. On the other hand, falsification under par. 4 of Article 171 is
perpetrated by a person who, having a legal obligation to disclose the truth, makes in a document statements in a
narration of facts which are absolutely false with the wrongful intent of injuring a third person.

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In order that petitioner may be convicted of falsification under par. 2 of Article 171, it is essential that it
be proved beyond reasonable doubt that he had caused it to appear that Mr. Vicente Liwag had
authorized the issuance of said certification, when in truth, Mr. Liwag did not partake in said issuance of
the certificate. Stated differently, for petitioner to be convicted of falsification under par. 2, the
allegation in the Information that he "willfully, unlawfully, and feloniously prepare a document, to wit: a
certification dated July 10, 1986, by stating and making it appear in said document . . . that the same
was executed and signed by the President of Titan Construction Corporation, when in truth and in fact, as
said accused well knew that said certification was not issued nor authorized to be issued by Titan
Construction Corporation . . . and that the signature appearing in said certification as being that of Titan
Construction Corporation's President, . . ." must be clearly established.
The threshold issue then is whether the signature of Mr. Vicente Liwag was forged. Contrary to the
findings of the trial court, as affirmed by the appellate court, this Court deems that the testimonies of
the prosecution witnesses, Atty. Jaime Linsangan and Jose Caneo, failed to prove with moral certainty
that Mr. Liwag did not authorize the issuance of the certification.
By and large, there was no competent evidence to prove the allegation of the officers of Titan
Construction Corporation that the signature affixed on the certification was not that of Vicente Liwag,
thus making the issuance of the certification unauthorized. The prosecution did not present Mr. Vicente
Liwag, or any other knowledgeable witness to testify whether the signature appearing on said
certification was indeed not by Mr. Liwag, thus establishing the fact that the certification was falsified by
making it appear that the issuance was actually consented to by the president of Titan Construction
Corporation. Absent clear proof that Vicente Liwag did not sanction the issuance of said certification, the
Information that petitioner has committed falsification of private document under Article 172, in relation
to par. 2, Article 171, cannot be considerably proved.

With respect to par. 4 of Article 171, what is sought to be penalized is the act of making in a document of utterly
false narration of facts by a person who has a legal obligation to disclose the truth of said facts, thereby
causing injury to a third party. And in the case at bar, in order that petitioner may be penalized under par. 4, it is
necessary that the allegations in the Information that ". . . accused, with intent to damage Titan Construction
Corporation, did then and there willfully, unlawfully, and feloniously prepare a document, to wit: a certification
dated July 10, 1986, by stating and making it appear in said document that the First United Construction
Corporation has undertaken building construction, sewage, water, and other civil works when in truth and in fact,
as said accused well knew . . . that it is false because First United Construction Corporation never had any
participation of the projects listed therein which were undertaken by Titan Construction Corporation . . ., to the
damage and prejudice of Titan Construction Corporation" be proved.
o
The trial court concluded that the elements of the crime of falsification under par. 4 of Article 171
necessary to convict petitioner, particularly that a) the offender makes in a document statements in a
narration of facts; b) that he has a legal obligation to disclose the truth of the facts narrated by
him; c) that the fact narrated by the offender are absolutely false; and d) that the perversion of
the truth in the narration of fact was made with the wrongful intent of injuring a third person are
present in the instant case.
o
This Court is not convinced. In the case at bar, the circumstances relied upon by the trial court do not
lead to an inference exclusively consistent with the guilt of the petitioner beyond reasonable doubt. The
prosecution failed to prove that it was indeed petitioner who prepared the document nor that he was the
one who provided the facts contained in the certification. Even from the admissions of both petitioner
and his father, what can only be established is that petitioner requested his father to secure a
certification that they had done some construction work for Titan Construction Corporation. Nothing in
said testimony indicates that petitioner had asked his father to commit any falsification. Petitioner did
not provide nor even suggest what detailed information will be included in said certification.
In Criminal Case No. 3627, the trial court convicted petitioner Batulanon for falsifying Dennis Batulanon's signature
in the cash voucher based on the Information charging her of signing the name of her 3 year old son, Dennis. The
records, however, reveal that in Cash Voucher No. 374A, petitioner Batulanon did not falsify the signature of
Dennis. What she did was to sign: "by: lbatulanon" to indicate that she received the proceeds of the loan in behalf
of Dennis. Said act does not fall under any of the modes of falsification under Article 171 because there in nothing
untruthful about the fact that she used the name of Dennis and that as representative of the latter, obtained the
proceeds of the loan from PCCI. The essence of falsification is the act of making untruthful or false statements,
which is not attendant in this case. As to whether, such representation involves fraud which caused damage to PCCI
is a different matter which will make her liable for estafa, but not for falsification. Hence, it was an error for the
courts below to hold that petitioner Batulanon is also guilty of falsification of private document with respect to
Criminal Case No. 3627 involving the cash voucher of Dennis.
The offender under Article 172 must be a private individual or may be a public officer, employee or notary public
who does not "take advantage of his official position." Under Article 171, an essential element of the crime is that
the act of falsification must be committed by a public officer, employee or notary who "takes advantage of his
official position."

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The offender "takes advantage of his official position" in falsifying a document when (1) he has the
duty to make or to prepare or otherwise intervene in the preparation of the document; or (2) he
has the official custody of the document which he falsifies.

POSSESSOR OF FALSIFIED DOCUMENT IS PRESUMED TO BE THE MATERIAL AUTHOR OF THE FALSIFICATION IF HE


IS THE ONLY PERSON WHO STOOD TO BE BENEFITED BY THE FALSIFICATION; CASE AT BAR. The petitioner
admits that the deed of sale that was in his possession is a forged document as found by the trial and appellate
court. Petitioner, nonetheless, argues that notwithstanding this admission, the fact remains that there is no proof
that the petitioner authored such falsification or that the forgery was done under his direction. This argument is
without merit. Under the circumstance, there was no need of any direct proof that the petitioner was the author
of the forgery. As keenly observed by the Solicitor General, "the questioned document was submitted by petitioner
himself when the same was requested by the NBI for examination. Clearly in possession of the falsified deed of sale
was petitioner and not Caridad Dorol who merely verified the questioned sale with the Provincial Assessor's Office
of Sorsogon." In other words, the petitioner was in possession of the forged deed of sale which purports to sell the
subject land from the private complainant to him. Given this factual backdrop, the petitioner is presumed to be
the author of the forged deed of sale, despite the absence of any direct evidence of his authorship of the forgery.
Since the petitioner is the only person who stood to benefit by the falsification of the document found in his
possession, it is presumed that he is the material author of the falsification. As it stands, therefore, we are unable
to discern any grave abuse of discretion on the part of the Court of Appeals.
USE OF FALSIFIED DOCUMENTS; ELEMENTS; PERSONAL DATA SHEETS ARE OFFICIAL DOCUMENTS REQUIRED IN
CONNECTION WITH PROMOTION TO HIGHER POSITION AND CONTENDERS FOR PROMOTION HAVE LEGAL
OBLIGATION TO DISCLOSE THE TRUTH. All the elements of falsification through the making of untruthful
statements in a narration of facts are present: (a) That the offender makes in a document statements in a
narration of facts; (b) That he has a legal obligation to disclose the truth of the facts narrated by him; (c) That the
facts narrated by the offender are absolutely false; and, (d) That the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person. In People v. Po Giok To the Court held that "in the
falsification of public or official documents, whether by public officials or by private persons, it is unnecessary that
there be present the idea of gain or the intent to injure a third person, for the reason that, in contradistinction to
private documents, the principal thing punished is the violation of the public faith and the destruction of the truth
as therein solemnly proclaimed." Hence, the last requisite need not be present. Also, petitioners themselves have
affirmed in their petition that their Personal Data Sheets were not sworn to before any administering officer
thereby taking their case away from the confines of perjury. Nonetheless, they argue that they have no legal
obligation to disclose the truth in their PDS since these are not official documents. We disagree. In Inting v.
Tanodbayan the Court held that "the accomplishment of the Personal Data Sheet being a requirement under the
Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful
statement therein was, therefore, intimately connected with such employment . . . " The filing of a Personal Data
Sheet is required in connection with the promotion to a higher position and contenders for promotion have the
legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will
prejudice other qualified aspirants to the same position.

ARTICLE 173
FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE
MESSAGES AND USE OF SAID FALSIFIED MESSAGES
The public officer to be liable must be engaged in the service of sending or receiving wireless
cable telegraph and telephone messages.
Section Five. Falsification of medical certificates, certificates
of merit or services and the like.
ARTICLE 174
FALSE MEDICAL CERTIFCATES, FALSE CERTIFICATES OF MERIT OR
SERVICE, ETC.
A. Persons Liable:
1. Physician or surgeon who, in connection with the practice of his profession,
shall issue a false certificate.
2. Public officer who shall issue a false certificate of merit or service, good
conduct or similar circumstances. (example, certificate of good conduct)

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3. Private individual who falsified a certificate falling in the classes mentioned


in 1 & 2.
ARTICLE 175
USING FALSE CERITFICATES
A. Elements
1. Person (liable under Art. 174) issued the certificate
2. Offender knew that the certificate is false
3. That he used the same
Illustration: if a doctor issues a false certificate, the patient who uses the false certificate is
liable under this article, knowing the same to be falsified.

Section Six. Manufacturing, importing and possession of instruments


or implements intended for the commission of falsification.
ARTICLE 176
MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS
FOR FALSIFICATIONS
A. Acts Punishable
1. Making or introducing into the Philippines any stamps, dyes, marks or
other instruments for counterfeiting or falsification
2. Possessing with intent to use the instruments for counterfeiting or
falsification made or introduced into the Philippines by another person

Chapter Two
OTHER FALSIFICATIONS
Sec. One. Usurpation of authority, rank, title, and improper
use of names, uniforms and insignia.
ARTICLE 177
USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS
A. Acts Punished
1. 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.
2. By performing any act pertaining to any person in authority or public
officer of the Philippine Govt or of a Foreign Govt under the pretense of official
position, and without being entitled to do so.
Important words to take note: KNOWINGLY and FALSELY
GOOD FAITH or lack of intent to commit the crime is a defense here because supposed a
person really thought he was vested with authority.
See Republic Act No. 75
Republic Act no. 10 is obsolete.

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REPUBLIC ACT NO. 75


AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER
OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES
OF THE IMMUNITIES, RIGHTS, AND PRIVILEGES OF DULY ACCREDITED
FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES
Sec. 1. Any person who shall falsely assume and take upon himself to act as a
diplomatic, consular, or any other official of a foreign government duly accredited as such to
the Government of the Republic of the Philippines with intent to defraud such foreign
government or the Government of the Philippines, or any person, or in such pretended
character shall demand or obtain, or attempt to obtain from any person or from said foreign
government or the Government of the Philippines, or from any officer thereof, any money,
paper, document, or other thing, of value, shall be fined not more than five thousand pesos, or
shall be imprisoned for not more than five years, or both, in addition to the penalties that may
be imposed under the Revised Penal Code.
Sec. 2. Any person, other than a diplomatic or consular officer or attache, who shall
act in the Republic of the Philippines as an agent of a foreign government without prior
notification to, and registration with, the Secretary of Foreign Affairs shall be fined not more
than five thousand pesos, or imprisoned not more than five years, or both, aside from other
penalties that may be imposed by law.
Sec. 3. Any person, who with intent to deceive or mislead, within the jurisdiction of
the Republic, wear any naval, military, police, or other official uniform, decoration, or regalia
of any foreign State, nation or government with which the Republic of the Philippines is at
peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated
to deceive, unless such wearing thereof be authorized by such State, nation, or government,
shall, upon conviction, be punished by a fine not exceeding two hundred pesos or
imprisonment not exceeding six months, or by both such fine and imprisonment.
Sec. 4. Any writ or process sued out or prosecuted by any person in any court of the
Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador
or public minister of any foreign State, authorized and received as such by the President, or
any domestic or domestic servant of any such ambassador or minister is arrested or
imprisoned, or his goods or chattels are distrained, seized, or attached, shall be deemed void,
and every person by whom the same is obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it, shall, upon conviction, be punished by
imprisonment for not more than three years and a fine of not exceeding two hundred pesos in
the discretion of the court.
Sec. 5. The provisions of section four hereof shall not apply to any case where the
person against whom the process is issued is a citizen or inhabitant of the Republic of the
Philippines, in the service of an ambassador or a public minister, and the process is founded
upon a debt contracted before he entered upon such service; nor shall the said section apply to
any case where the person against whom the process is issued is a domestic servant of an
ambassador or a public minister, unless the name of the servant has, before the issuing
thereof, been registered in the Department of Foreign Affairs, and transmitted by the
Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt
thereof post the same in some public place in his office. All persons shall have resort to the list
of names so posted in the office of the Chief of Police, and may take copies without fee.
Sec. 6. Any person who assaults, strikes, wounds, imprisons or in any other manner
offers violence to the person of an ambassador or a public minister, in violation of the law of
nations, shall be imprisoned not more than three years, and fined not exceeding two hundred
pesos, in the discretion of the court, in addition to the penalties that may be imposed under
the Revised Penal Code.
Sec. 7. The provisions of this Act shall be applicable only in cases where the country
of the diplomatic or consular representative adversely affected has provided for similar
protection to duly accredited diplomatic or consular representatives of the Republic of the

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Philippines by prescribing like or similar penalties for like or similar offenses herein
contained.
ARTICLE 178
USING FICTITIOUS NAME AND CONCEALING TRUE NAME
ELEMENTS I:
1. THE OFFENDER USES A NAME OTHER THAN HIS REAL NAME
2. HE USES THAT FICTITIOUS NAME PUBLICLY
3. PURPOSE OF THE OFFENDER IS:
A. TO CONCEAL A CRIME
B. TO EVADE THE EXECUTION OF A JUDGEMENT

C.

TO CAUSE DAMAGE TO PUBLIC INTEREST


- damage means public damage

Element of publicity is important in terms of using the fictitious name.


ELEMENTS II:
1. THAT THE OFFENDERS CONCEALSA. HIS TRUE NAME, AND
B. ALL OTHER PERSONAL CIRCUMSTANCES
2. THAT THE PURPOSE IS ONLY TO CONCEAL HIS IDENTITY
VERY IMPORTANT!!!
PD 1829 Obstruction of Justice
Sec. 1 x x x any person who knowingly or wilfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:
x
x
x
(d) publicly using a fictitious name for the purpose of concealing a crime, evading
prosecution or the execution of a judgment, or concealing his true name and other
personal circumstances for the same purpose or purposes;
x
x
x
A person who uses a fictitious name or conceals a true name for the purpose of
preventing the apprehension and prosecution of criminal offender is not only liable under the
revised penal code but also under PD 1829 (d).
Commonwaelth Act No. 142
ANTI-ALIAS LAW, as amended by RA 6085
Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other
entertainment purposes and in athletic events where the use of pseudonym is a normally
accepted practice, 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 baptized for the
first time, or, in case of an alien, 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:
Provided, That persons, whose births have not been registered in any local civil registry and
who have not been baptized, have one year from the approval of this act within which to

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register their names in the civil registry of their residence. The name shall comprise the
patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias shall apply for authority therefor in
proceedings like those legally provided to obtain judicial authority for a change of name, and
no person shall be allowed to secure such judicial authority for more than one alias. The
petition for an alias shall set forth the person's baptismal and family name and the name
recorded in the civil registry, if different, his immigrant's name, if an alien, and his
pseudonym, if he has such names other than his original or real name, specifying the reason or
reasons for the use of the desired alias. The judicial authority for the use of alias the christian
name and the alien immigrant's name shall be recorded in the proper local civil registry, and
no person shall use any name or names other, than his original or real name unless the same is
or are duly recorded in the proper local civil registry.
Sec. 3. No person having been baptized with a name different from that with which
he was registered at birth in the local civil registry, or in case of an alien, registered in the
bureau of immigration upon entry, or any person who obtained judicial authority to use an
alias, or who uses a pseudonym, shall represent himself in any public or private transaction or
shall sign or execute any public or private document without stating or affixing his real or
original name and all names or aliases or pseudonym he is or may have been authorized to
use.
Sec. 4. Six months from the approval of this act and subject to the provisions of
section 1 hereof, all persons who have used any name and/or names and alias or aliases
different from those authorized in section one of this act and duly recorded in the local civil
registry, shall be prohibited to use such other name or names and/or alias or aliases.
Sec. 5. Any violation of this Act shall be punished with imprisonment of from one
year to five years and a fine of P5,000 to P10,000.
URSUA v CA AND Pp
G.R. No. 112170. April 10, 1996
Accused is a client of Atty. Palmones. The latter requested the accused to ask
for a document in the Office of the Ombudsman because the law firms messenger
was on leave.
Upon reaching the office, the accused was advised to register in the logbook
and instead of writing his own name, the latter wrote the messengers name. The
truth was later found out and the accused was charged and convicted by the trial
court of violating Sec. 1 of CA 142. CA affirmed the decision.
However, the Supreme Court reversed the decision of the trial court, to wit:
x
x
x
For a bit of history, the enactment of C.A. No. 142 as amended
was made primarily to curb the common practice among the Chinese of
adopting scores of different names and aliases which created
tremendous confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which for obvious
reasons could not be successfully maintained against the Chinese who,
rightly or wrongly, claimed they possessed a thousand and one names.
C.A. No. 142 thus penalized the act of using an alias name, unless such
alias was duly authorized by proper judicial proceeding and recorded in
the civil register.
Clearly therefore an alias is a name or names used by a person or
intended to be used by him publicly and habitually usually in business
transactions in addition to his real name by which he is registered at
birth or baptized the first time or substitute name authorized by a
competent authority. A man's name is simply the sound or sounds by
which he is commonly designated by his fellows and by which they
distinguish him but sometimes a man is known by several different

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names and these are known as aliases. Hence, the use of a fictitious
name or a different name belonging to another person in a single
instance without any sign or indication that the user intends to be
known by this name in addition to his real name from that day forth
does not fall within the prohibition contained in C.A. No. 142 as
amended. This is so in the case at bench.
It is not disputed that petitioner introduced himself in the Office of the
Ombudsman as "Oscar Perez," which was the name of the messenger of his lawyer
who should have brought the letter to that office in the first place instead of
petitioner. He did so while merely serving the request of his lawyer to obtain the
copy of the complaint in which petitioner was a respondent. There is no question
then that "Oscar Perez" is not an alias name of petitioner. There is no evidence
showing that he had used or was intending to use that name as his second name in
addition to his real name. The use of the name "Oscar Perez" was made by
petitioner in an isolated transaction where he was not even legally
required to expose his real identity. For, even if he had identified himself
properly at the Office of the Ombudsman, petitioner would still be able to get a copy
of the complaint as a matter of right, and the Office of the Ombudsman could not
refuse him because the complaint was part of public records hence open to
inspection and examination by anyone under the proper circumstances.
While the act of petitioner may be covered by other provisions of law, such
does not constitute an offense within the concept of C.A. No. 142 as amended under
which he is prosecuted. The confusion and fraud in business transactions which the
anti-alias law and is related statutes seek to prevent are not present here as the
circumstances are peculiar and distinct from those contemplated by the legislature
in enacting C.A. No. 142 as amended.
ARTICLE 179
ILLEGAL USE OF UNIFORM OR INSIGNIA
A. Elements
1. The offender makes use of the insignia, uniform, or dress
2. The insignia, uniform, or dress pertains to:
a. an office not held by the offender or
b. to a class of person of which he does not belong
3. The insignia, uniform or dress is used publicly or improperly
Section Two. False testimony
ARTICLE 180
FALSE TESTIMONY AGAINST A DEFENDANT
A. Elements
1. There is a criminal proceeding
2. Offender testifies falsely under oath against the defendant
3. Offender knows that the testimony is false
4. Defendant against whom the false testimony is given is either acquitted or
convicted in a
final judgement
FALSE TESTIMONY = committed by a person who, being under oath and required to testify
as to the truth of a certain matter at a hearing before a competent authority, shall deny the
truth or say something contrary to it.
Three forms of false testimony:

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1. false testimony in criminal cases


2. false testimony in civil cases
3. false testimony in other cases ( also called PERJURY in SOLEMN AFFIRMATION)
ARTICLE 181
FALSE TESTIMONY FAVORABLE TO THE DEFENDANT
A. Elements
1. There is a criminal proceeding
2. Offender testifies falsely under oath in favor of the defendant
3. Offender knows the testimony is false
NOTA BENE:
The accused himself may be held liable under this article
False testimony by negative statement is in favor of the defendant.
Remember: conviction or acquittal of the accused/defendant in the principal case is not
necessary
ARTICLE 182
FALSE TESTIMONY IN CIVIL CASES
A. Elements
1. The testimony must be given in a civil case
2. The testimony must relate to the issue presented in the said case
3. It must be false
4. Offender knows that the testimony is false
5. Testimony must be malicious and given with an intent to affect the issues
presented in
the civil case
The testimony given in the civil case must be false then the testimony must be given by the
defendant knowing the same to be false and malicious and given with the intent to affect the
issues presented in the civil case. Otherwise, no criminal liability. This does not apply in false
testimony in special proceedings.
Q: distinguish civil action and special proceedings:
A: Civil action = there is a cause of action
Special proceeding = do not talk about cause of action. The purpose is to establish the status
or right of a person.
ARTICLE 183
FALSE TESTIMONY
AFFIRMATION

IN

OTHER

CASES

AND

PERJURY

IN

SOLEMN

A. Two ways of committing:


1. falsely testifying under oath
2. making a false affidavit.
B. Elements
1. The accused made a statement under oath or executed an affidavit upon a
material matter
2. The statement or affidavit was made before a competent authority
authorized to receive and administer oath
3. The accused made a deliberate and willful assertion of falsehood

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- therefore, no perjury through negligence or imprudence


4. The sworn statement containing the falsity is required by law
GOOD FAITH is a good defense here. You might honestly believe that what you said or
testified was, for you, the real truth when in fact it was not. GOOD FAITH.
Q: What is a material matter?
A: Main fact which is the subject of the inquiry or any circumstance which tends to prove that
fact,
or any fact or circumstance which tends to corroborate or strengthen the testimony
relative of the subject of inquiry,
or which legitimately affects the credit of any witness who testifies
Q: are two contradictory statements sufficient to convict forgery?
A: NO. THE COURT MUST ASCERTAIN WHICH OF THE TWO CONTRADICTORY
STATEMENTS OR TESTIMONY IS FALSE.
Burgos vs Aquino
A.M. No. P-94-1081. October 25, 1995
Whether or not the immoral relationship still subsist is no longer material. Documents
submitted by a government employee to form part of his/her personal file are official
documents. Any alteration or material changes in the content thereof without a valid
justification is tantamount to, falsification which is likewise penalized by DISMISSAL from
the service. It could be added that in these official documents, the employee declares under
the penalty of perjury that all statements given in the document are true and correct to the
best of his knowledge and belief. It appears from these documents and in the record of the
case that no doubt, herein respondent is guilty of immorality and committed an act of
falsifying her own records and therefore, guilty of perjury, which merit a severe punishment."
x
x
x
Likewise, the records reveal that when respondent applied in the judiciary she filled up
the prescribed personal information sheet, Civil Service Form 212, dated October 26, 1982
and did not disclose the existence of her daughter. The form itself gives this warning: "I
declare under penalties of perjury that the answers given above are true and correct to the
best of my knowledge and belief. "Despite the warning, she professed that her statements
were true. Under Article 183 of the Revised Penal Code, perjury is the deliberate making of
untruthful statements upon any material matter before a competent person authorized to
administer an oath in cases in which the law so requires. The required Civil Service Form 212
submitted by respondent to form part of her personal file is an official document. Her
deliberate omission to disclose her child without a valid justification makes her liable for
perjury.

Jurisprudential trend in PERJURY (2003-2007)


As can be gleaned from the foregoing, the elements of perjury are as follows:
(a) That the accused made a statement under oath or executed 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 the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal
purpose.
o
The third element of perjury requires that the accused had willfully and deliberately asserted a
falsehood. A mere assertion of a false objective fact is not sufficient. The assertion must be
deliberate and willful.
o
In the instant case, the petitioners failed to establish the fact that the private respondents made a
willful and deliberate assertion of falsehood in their counter-affidavits dated 11 June 1998.
o
Private respondent Ramon H. Monfort had sufficiently and reasonably explained the circumstances
surrounding the preparation and his signing of the erroneous statements in the 1996 GIS of the
MHADC. He narrated that as Vice-President of the MHADC, he signed and certified the same under
oath; that he was not, however, aware of the erroneous statements therein at the time when he

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signed it; that it was LDA as MHADC's corporate accountant which had solely prepared the 1996 GIS
of the MHADC; that he always relied on the accuracy of LDA; that he hastily signed it since, at that
time, the LDA representative was in a hurry to beat the deadline in submitting the same to the
SEC; that after being informed of the erroneous statements, the LDA sent a letter to the SEC
informing the latter of the mistakes and supplying the correct informations therein; that the
erroneous statements were due to the oversight of the LDA; and, that he admitted that he was
negligent in not carefully reading and analyzing the statements therein.
The nave reliance of the private respondents on the foregoing circumstances in executing their
respective counter-affidavits dated 11 June 1998 negates willful and deliberate assertion of
falsehood. Perjury being a felony by dolo, there must be malice on the part of the accused.
Willfully means intentionally, with evil intent and legal malice, with consciousness that the alleged
perjurious statement is false with the intent that it should be received as a statement of what was
true in fact. It is equivalent to" knowingly." "Deliberately" implies "meditated" as distinguished from
"inadvertent acts." It must appear that the accused knows his statement to be false or is
consciously ignorant of its truth.

Perjury is an obstruction of justice; its perpetration may affect the earnest concerns of the parties before a
tribunal. The felony is consummated when the false statement is made.
o
A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be
deliberate and willful. Perjury being a felony by dolo, there must be malice on the part of the
accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness
that the alleged perjurious statement is false with the intent that it should be received as a
statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated
as distinguished from inadvertent acts. It must appear that the accused knows his statement to
be false or as consciously ignorant of its truth.
o
Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false
statement of a belief is not perjury. Bona fide belief in the truth of a statement is an adequate
defense. A false statement which is obviously the result of an honest mistake is not perjury.
o
There are two essential elements of proof for perjury: (1) the statement made by the defendants
must be proven false; and (2) it must be proven that the defendant did not believe those
statements to be true.
o
Knowledge by the accused of the falsity of his statement is an internal act. It may be proved by his
admissions or by circumstantial evidence. The state of mind of the accused may be determined by
the things he says and does, from proof of a motive to lie and of the objective falsity itself, and
from other facts tending to show that the accused really knew the things he claimed not to know.
o
A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of
the accused. The prosecution must prove which of the two statements is false and must show the
statement to be false by other evidence than the contradicting statement. The rationale of this
principle is thus:
. . . Proof that accused has given contradictory testimony under oath at a different time will not
be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply
one oath of the defendant as against another, and it would not appear that the testimony charged
was false rather than the testimony contradictory thereof. The two statements will simply
neutralize each other; there must be some corroboration of the contradictory testimony. Such
corroboration, however, may be furnished by evidence aliunde tending to show perjury
independently of the declarations of testimony of the accused.
The term "material matter" is the main fact subject of the inquiry, or any circumstance which tends to
prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony related
to the subject of the inquiry, or which legitimately affects the credence of any witness who testified. In this
case, a matter is material if it has a material effect or tendency to influence the Commission in resolving
the motion of HTC one way or the other. The effects of the statement are weighed in terms of
potentiality rather than probability. The prosecution need not prove that the false testimony actually
influenced the Commission.
On the Element of Materiality
In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry,
or any circumstance which tends to prove that fact . . . ." To hold private respondents liable, there must
be evidence that their assailed statements in OMB-ADM-1-99-0387 were the subject of inquiry in that case.
Petitioner has presented no such evidence.
o
What is before the Court is a portion of respondent Pascua's counter-affidavit in that case as
quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible

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from this quoted material, namely, that the basis of petitioner's complaint in OMB-ADM-1-99-0387
is that respondent Pascua prevented her from taking part in the 16 July 1998 meeting. However, it
would be improper for the Court to rely on such inference because the element of materiality must
be established by evidence and not left to inference.
o
At any rate, petitioner's complaint for perjury will still not prosper because respondent Pascua's
statement that OMB-ADM-1-99-0387 is significantly the same as petitioner's and Yabut's
administrative complaint against respondent Pascua before the DECS is immaterial to the
inferred issue.
On the Element of Deliberate Assertion of Falsehood
The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good
faith or lack of malice is a valid defense. Here, the Court finds that respondent Pascua's statement in his
counter-affidavit in OMB-ADM-1-99-0387 that he called the 16 July 1998 meeting does not constitute a
deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested
a dialogue with respondent Pascua, it was respondent Pascua's consent to their request which led to the
holding of the meeting. Thus, respondent Pascua's statement in question is not false much less malicious. It
is a good faith interpretation of events leading to the holding of the meeting.
PERJURY; ELEMENTS; PRESENT IN CASE AT BAR. All these elements are present in the instant case.
Petitioner willfully and deliberately alleged false statements concerning his "residence" and "moral
character" in his petition for naturalization. This was sufficiently proven by the prosecution, as succinctly
noted by the Court of Appeals in its assailed Decision. The petition for naturalization was duly subscribed
and sworn to by petitioner before Notary Public Filomino B. Tan, Jr., a person competent and authorized by
law to receive and administer oath. Also, petitioner started testifying under oath on his false allegations
before the trial court. The allegations in the petition regarding "residence" and "moral character" are
material matters because they are among the very facts in issue or the main facts which are the subject of
inquiry and are the bases for the determination of petitioner's qualifications and fitness as a naturalized
Filipino citizen. The necessity of declaring a truthful and specific information on the "residence" and "moral
character" in the petition for naturalization has been underscored by this Court in Chua Kian Lai vs.
Republic. Fully cognizant of the truth surrounding his moral character and residence, petitioner instead
declared falsely in his verified petition for naturalization that "he has all the qualifications and none of the
disqualification under C.A. No. 473." Clearly, he willfully asserted falsehood under oath on material matters
required by law.

WITHDRAWAL OF PETITION CONTAINING FALSE MATERIAL STATEMENTS DID NOT


EXTINGUISH CULPABILITY FOR PERJURY ALREADY COMMITTED; CASE AT BAR. We cannot go
along with the submission of the petitioner and the Solicitor General that petitioner could no
longer be prosecuted for perjury in view of the withdrawal of the petition for naturalization
containing his false material statements. In this jurisdiction, it is not necessary that the proceeding
in which the perjury is alleged to have been committed be first terminated before a prosecution
for the said crime is commenced. At the time he filed his petition for naturalization, he had
committed perjury. As discussed earlier, all the elements of the crime were already present then.
He knew all along that he wilfully stated material falsities in his verified petition. Surprisingly, he
withdrew his petition without even stating any reason therefor. But such withdrawal only
terminated the proceedings for naturalization. It did not extinguish his culpability for perjury he
already committed. Indeed, the fact of withdrawal alone cannot bar the State from prosecuting
petitioner, an alien, who made a mockery not only of the Philippine naturalization law but the
judicial proceedings as well. And the petition for naturalization tainted with material falsities can
be used as evidence of his unlawful act.

ARTICLE 184
OFFERING FALSE TESTIMONY IN EVIDENCE
A. Elements
1. The offender offered in evidence a false witness or false testimony
2. That the accused knew that the witness or the testimony was false
3. The offer was made in a judicial or official proceeding
Here, no inducement. THE OFFER IS VOLUNTARILY DONE.

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The offender here KNOWINGLY offered in evidence a FALSE WITNESS or a FALSE


TESTIMONY in any judicial or official proceeding.

Chapter Three
FRAUDS
Section One. Machinations, monopolies and combinations
ARTICLE 185
MACHINATIONS IN PUBLIC AUCTIONS
A. Acts Punishable
1. Soliciting any gift or promise as a consideration for refraining from taking part in
any public
auction
a. There is a public auction
b. The accused solicited any gift or promise from any of the bidders
c. That such gift or promise was the consideration for his refraining from
taking part in that
public auction
d. That the accused had intent to cause the reduction of the price of the thing
auctioned
2. By attempting to cause bidders to stay away from an auction by threats, gifts,
promise or any
other artifice (artifice: cunning, ingenuity)
a. There is a public auction
b. The accused attempted to cause the bidders to stay away from the public
auction
c. That it was done by threats, gifts, promise or any other artifice
d. That the accused had intent to cause the reduction of the price of the thing
auctioned
The purpose is to reduce the price.
Machinations- purpose is to reduce the price. If the purpose is to increase the price, there is no
crime
The crime is consummated by mere act of solicitation of gift or promise.
Mere attempt is punishable.
CASE:
OUANO vs. CA and ECHAVEZ
G.R. No. 40203. August 21, 1990
x
x
x
These acts constitute a crime, as the Trial Court has stressed. Ouano and
Echavez had promised to share in the property in question as a consideration for
Ouano's refraining from taking part in the public auction, and they had attempted
to cause and in fact succeeded in causing another bidder to stay away from the
auction in order to cause reduction of the price of the property auctioned. In so
doing, they committed the felony of machinations in public auctions defined and
penalized in Article 185 of the RPC.
ARTICLE 186
MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

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A. Acts Punished
1. Combination to prevent free competition in the market
2. Monopoly to restrain free competition in the market
3. Manufacturer, producer, or processor or importer combining, conspiring or
agreeing with
any person to make transaction prejudicial to lawful commerce or
to increase the market
price of the merchandise
Q: What is the essence of the law?
A: the object is to increase the price!
Please take note that this is an exception to the general rule that conspiracy is not punishable
by law, but here, mere conspiracy is punishable.
Q: What is the theory of the law in penalizing monopolies and combination?
A: Competition and not combination should be the law of trade.
Section Two. Frauds in commerce and industry
ARTICLE 187
IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR
MERCHANDISE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR
ALLOYS
A. Elements
1. The offender imports, sells or disposes of any of those articles or
merchandise
2. The stamps, brands or marks of these article fails to indicate the actual
fineness or quality
of the said metal or alloy
3. The offender knows that the stamps, brands, or marks fail to indicate the
actual fineness
or quality of the metals or alloys
Take note that the metals are specified.
ARTICLE 188 & ARTICLE 189
Substitution or altering trademarks, trade names and service marks AND Unfair
competition, fraudulent registration of trademark, tradename etc.
Repealed by the REPUBLIC ACT 8293 the INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES
R.A. 8293
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
SECTION 155. Remedies; Infringement. Any person who shall, without the consent of the
owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation
of a registered mark or the same container or a dominant feature thereof in connection with
the sale, offering for sale, distribution, advertising of any goods or services including other
preparatory steps necessary to carry out the sale of any goods or services on or in connection
with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a
dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation
to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used

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in commerce upon or in connection with the sale, offering for sale, distribution, or advertising
of goods or services on or in connection with which such use is likely to cause confusion, or to
cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant
for the remedies hereinafter set forth: Provided, That the infringement takes place at the
moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless
of whether there is actual sale of goods or services using the infringing material. (Sec. 22, R.A.
No 166a)
x
x
x
SECTION 168. Unfair Competition, Rights, Regulation and Remedies.
168.1. A person who has identified in the mind of the public the goods he
manufactures or deals in, his business or services from those of others, whether or not a
registered mark is employed, has a property right in the goodwill of the said goods, business or
services so identified, which will be protected in the same manner as other property rights.
168.2. Any person who shall employ deception or any other means contrary to good
faith by which he 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 such goodwill, or who shall
commit any acts calculated to produce said result, shall be guilty of unfair competition, and
shall be subject to an action therefor.
168.3. In particular, and without in any way limiting the scope of protection against
unfair competition, the following shall be deemed guilty of unfair competition:
(a)
Any person, who is selling his goods and gives them the general
appearance of goods of another manufacturer or dealer, either as to the goods
themselves or in the wrapping of the packages in which they are contained, or the
devices or words thereon, or in any other feature of their appearance, which would
be likely to influence purchasers to believe that the goods offered are those of a
manufacturer or dealer, other than the actual manufacturer or dealer, or who
otherwise clothes the goods with such appearance as shall deceive the public and
defraud another of his legitimate trade, or any subsequent vendor of such goods or
any agent of any vendor engaged in selling such goods with a like purpose;
(b)
Any person who by any artifice, or device, or who employs any other
means calculated to induce the false belief that such person is offering the services
of another who has identified such services in the mind of the public; or
(c)
Any person who shall make any false statement in the course of trade
or who shall commit any other act contrary to good faith of a nature calculated to
discredit the goods, business or services of another.
168.4. The remedies provided by Sections 156, 157 and 161 shall apply mutatis
mutandis. (Sec. 29, R.A. No. 166a)
x
x
x
SECTION 169. False Designations of Origin; False Description or Representation.
169.1. Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false or misleading description of fact,
or false or misleading representation of fact, which:
(a)
Is likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person; or
(b)
In commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person's
goods, services, or commercial activities, shall be liable to a civil action for damages
and injunction provided in Sections 156 and 157 of this Act by any person who
believes that he or she is or is likely to be damaged by such act.

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x
x
x
SECTION 170. Penalties. Independent of the civil and administrative sanctions imposed by
law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging
from Fifty thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be
imposed on any person who is found guilty of committing any of the acts mentioned in Section
155, Section 168 and Subsection 169.1. (Arts. 188 and 189, Revised Penal Code)
See REPUBLIC ACT 455
UNLAWFUL IMPORTATION OF MERCHANDISE (TARIFF AND CUSTOMS CODE)
Smuggling; when importation begins
RODRIGUEZ, ET AL vs. CA and PEOPLE
G.R. No. 115218. September 18, 1995
Under Section 3601 of the Tariff and Customs Code, smuggling is committed
by any person who:
(1) fraudulently imports or brings into the Philippines or assists in importing
or bringing into the Philippines any article, contrary to law; or
(2) receives, conceals, buys, sells, or in any manner facilitates the
transportation, concealment or sale of such article after importation, knowing the
same to have been imported contrary to law.
Importation begins when the carrying vessel or aircraft enters the jurisdiction
of the Philippines with intention to unload and is deemed terminated upon payment
of the duties, taxes and other charges due upon the articles and the legal permit for
withdrawal shall have been granted. If the articles are free of duties, taxes and other
charges, importation is terminated until the articles shall have legally left the
jurisdiction of the customs.
After importation, the act of facilitating the transportation, concealment or
sale of the unlawfully imported article must be with the knowledge that the article
was smuggled. However, if upon trial the defendant is found to have been in
possession of such article, this shall be sufficient to authorize conviction unless the
defendant explains his possession to the satisfaction of the court.

TITLE FIVE
CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
ARTICLES 190-194
CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS
REPEALED BY REPUBLIC ACT 6425, as amended
THE DANGEROUS DRUGS ACT OF 1972 as amended
Sec. 2. Definitions
(a)
"Administer" refers to the act of introducing any dangerous drug into the
body of any person, with or without his knowledge, by injection, ingestion or other means
or of committing any act of indispensable assistance to a person in administering a dangerous
drug to himself;
x
x
x

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(d)
"Cultivate or culture" means the act of knowingly planting, growing,
raising or permitting the planting, growing or raising of any plant which is the source of a
prohibited drug;
(e)
"Dangerous drugs" refers to either:
(1)
"Prohibited drug," which includes opium and its active components
and derivatives, such as heroin and morphine; coca leaf and its derivatives,
principally cocaine, alpha and beta eucaine, hallucinogenic drugs, such as
mescaline, lysergic acid diethylamide (LSD) and other substances producing similar
effects; Indian hemp and its derivatives; all preparations made from any of the
foregoing; and other drugs and chemical preparations, whether natural or synthetic,
with the physiological effects of a narcotic or a hallucinogenic drug; or" (As
amended by BP 179)
(2)
"Regulated drug" which includes self-inducing sedatives, such as
secobarbital, phenobarbital, pentobarbital, amobarbital and any other drug which
contains a salt or a derivative of a salt of barbituric acid; any salt; isomer or salt of
anisomer, of amphetamine, such as bensedrine or dexedrine, or any drug which
produces a physiological action similar to amphetamine; and hynotic drugs, such as
methaqualone, nitrazepam or any other compound producing similar physiological
effects; (As amended by PD 1683)
(f)
"Deliver" refers to a person's act of knowingly passing a dangerous drug to
another, personally or otherwise, and by any means, with or without consideration;
(g)
"Drug dependence" means a state of psychic or physical dependence, or
both, on a dangerous drug, arising in a person following administration or use of that drug on
a periodic or continuous basis;
(h)
"Employee" of a prohibited drug den, dive or resort includes the caretaker,
helper, watchman, lookout and other persons employed by the operator of a prohibited drug
den, dive or resort where any prohibited drug is administered, delivered, distributed, sold or
used, with or without compensation, in connection with the operation thereof;
x
x
x
(j)
"Manufacture" means the production, preparation, compounding or
processing of a dangerous drug either directly or indirectly or by extraction from substances of
natural origin, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis, and shall include any packaging or repackaging of such
substance or labeling or relabeling of its container; except that such term does not include the
preparation, compounding, packaging, or labeling of a drug or other substance by a duly
authorized practitioner as an incident to his administration or dispensing of such drug or
substance in the course of his professional practice;
x
x
x
(m)
"Pusher" refers to any person who sells, administers, delivers, or gives away
to another, on any terms whatsoever, or distributes, dispatches in transit or transports any
dangerous drug or who acts as a broker in any of such transactions, in violation of this Act;
x
x
x
(o)
"Sell" means the act of giving a dangerous drug, whether for money or any
other material consideration;
(p)
"Use" refers to the act of injecting, intravenously or intramuscularly, or of
consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking, or otherwise
introducing into the physiological system of the body, any of the dangerous drugs.
NOTA BENE:
Shabu (methylamphetamine hydrochloride) is a regulated drug!
In drugs cases there is no need to establish the negative element because as a general rule, no
one is authorized to sell drugs

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EXCEPTION: in order to be acquitted, you must prove that you are authorized to sell drugs.
You must fall under the mantle of protection.
Take note also that in sale, there must be exchange of the drug for a material consideration or
for money. Otherwise, there is no sale. But the accused here may be charged for delivery.
Barter is included in the definition of sale.
Q: what is drug dependence?
A: a state of psychic or physical dependence, or both, on a dangerous drug, arising in a person
following administration or use of that drug on a periodic or continuous basis
Dangerous drugs are classified into two:
1. prohibited drugs
2. regulated drugs
SC ruling:
Prohibited drugs are distinguish from regulated drugs in that the former being
prohibited are in themselves being interdicted whereas the latter are merely controlled or
directed by the rule in order to systematized their use. Prohibition necessarily embraces or
contemplates regulation but regulation does not necessarily results in prohibition. On the
other hand, regulation may refer to both permissive use and prohibition.

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PROHIBITED DRUG
Importation (Sec 3)
Any person who, unless authorized by law, shall import or bring into the Philippines any
prohibited drug.
Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs
(Sec 4)
Acts punishable:
1. sale
2. administration
3. delivery
4. distribution
5. transportation
6. acting as broker

Penalty of death is imposed if:


1. minor is involved in the sale, admin,
delivery, etc.
2. a person dies and it is the proximate

cause of death

Maintenance of a Den, Dive or Resort for Drug Users (Sec. 5)


Any person or group of persons who shall maintain a den, dive or resort where any
prohibited drug is used in any form or where such prohibited drugs in quantities specified in
Section 20, Paragraph 1 of this Act are found.
Penalty of death is imposed if:
1. minor is involved in the sale, admin,
or delivery
2. a person dies and it is the proximate

cause of death

Employees and Visitors of Prohibited Drug Den (Sec. 6)


Persons liable:
(a)
Any employee (see Sec. 2 (h)) of a prohibited drug den, dive or resort; and
(b)
Any person who, not being included in the provisions of the next preceding,
paragraph, shall knowingly visit any prohibited drug den, dive or resort.
Manufacture of Drugs (Sec. 7)
Any person who, unless authorized by law, shall engage in the manufacture of any
prohibited drug.
Possession or Use of Drugs (Sec. 8)
Any person who, unless authorized by law, shall possess or use any prohibited drug subject
to the provisions of Section 20 hereof.

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REGULATED DRUG
Importation (Sec 14)
Any person who, unless authorized by law, shall import or bring any regulated drug in the
Philippines.
Sale, Administration, Dispensation, Delivery, Transportation and Distribution of
Regulated Drugs (Sec. 15)
Acts punishable:
1. sale
2. administration
3. dispensation
4. delivery
5. distribution
6. transportation
Penalty of death is imposed if:
1. minor is involved in the sale, admin,
delivery, etc.
2. a person dies and it is the proximate

cause of death

Maintenance of a den, dive or resort for drug users (Sec. 15-A)


Any person or group of persons who shall maintain a den, dive or resort where any
regulated drugs is used in any form, or where such regulated drugs in quantities specified in
Section 20, paragraph 1 of this Act are found.
Penalty of death is imposed if:
1. minor is involved in the sale, admin,
delivery, etc.
2. a person dies and it is the proximate

cause of death

(No counterpart provision)


Manufacture of Drugs (Sec. 14-A)
Any person who, unless authorized by law, shall engage in the manufacture of any
regulated drug.
Possession or Use of Drugs (Sec. 16)
Any person who shall possess or use any regulated drug without the corresponding license
or prescription, subject to the provisions of Section 20 hereof.
Cultivation of Plants which are Sources of Prohibited Drugs (Sec. 9)
Any person who shall plant, cultivate or culture any medium Indian hem(marijuana),
opium poppy, or any other plant which is or may hereafter be classified as dangerous drug or from
which any dangerous drug may be manufactured or derived.

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The land or portions hereof, and/or greenhouses on which any of 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 such cultivation or culture despite the exercise of due diligence on his part.
Penalty of death is imposed if it is done on public domain.
Records of Prescriptions, Sales, Purchases, Acquisitions and/or Deliveries (Sec. 10)
Any pharmacist, physician, dentist, veterinarian, manufacturer, wholesaler, importer,
distributor, dealer or retailer who violates or fails to comply with the provisions of Section 25 of this
Act, if the violation or failure involves a prohibited drug.
Additional penalty:
1. practitioner - revocation of license
2. proprietor (manufacturer, wholesaler,
etc) - revocation of business license

Unlawful Prescription (Sec. 11)


Any person who, unless authorized by law, shall make or issue a prescription or any other
writing purporting to be a prescription for any prohibited drug.
Unnecessary Prescription (Sec. 12)
A. Persons liable
Any:
1. physician, or
2. dentist
- who shall prescribe any prohibited drug for any person whose physical or physiological
conditions does not require the use thereof
B. Penalty imposed
1. imprisonment
2. revocation of license to practice
Possession of Opium Pipe and Other Paraphernalia for Prohibited Drugs (Sec. 13)
Any person who, unless authorized by law, shall possess or have under his control any
opium, pipe, equipment, instrument, apparatus or other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting or otherwise using opium or any other prohibited
drug.
(No counterpart provision)
Records of Prescriptions, Sales, Purchases, Acquisitions and/or Deliveries (Sec. 17)
Any pharmacist, physician, dentist, veterinarian, manufacturer, wholesaler, importer,
distributor, dealer or retailer who violates or fails to comply with the provisions of Section 25 of this
Act, if the violation or failure involves a regulated drug.
Unlawful Prescription (Sec. 18)
Any person who, unless authorized by law, shall make or issue a prescription for any
regulated drug.

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Unnecessary Prescription (Sec. 19)


A. Persons liable
Any:
1. physician, or
2. dentist
- who shall prescribe any prohibited drug for any person whose physical or physiological
conditions does not require the use thereof
B. Penalty imposed
1. imprisonment
2. revocation of license to practice
(No counterpart provision)
N.B. But if in paraphernalia for regulated drug (e.g. toter) the thing has traces of shabu/drugs, then
possessor may be charged of USE of regulated drug.
Importation of Prohibited Drugs (Sec. 3 and Sec 14)
Any person who, unless authorized by law, shall import or bring into the Philippines any
prohibited drug.
Q: what is the act punished?
A: any person who unless authorized by law, shall import into the Philippines any prohibited
drugs.
Q: when is importation authorized? When is it legal?
A: under section 36, the dangerous drugs board is empowered to authorized the importation of
dangerous drugs of such kind and quantity as it may deem necessary according to the medical and
research needs of the country. It is also the power of the DDB to determine the quantity to be
imported. (SEE SECTION 36 letter L)
Note: an authorized importer should get authority or authorization from DDB MANILA not in the
Region, otherwise, according to Judge Paredes, the said importer might be prosecuted for illegal
importation.
Importation of prohibited drugs authorized by law must therefore be understood to mean
importation authorized by the:
1. dangerous drugs board
2. a person so authorized by the board
3. A person so authorized must have complied with the registration and fee requirement.
4. It must be according to the medical and research needs of the country as determined by the
DDB
If the quantity of the authorized importation exceeds the quantity so authorized or allowed, you will
be charged for the illegal importation for the excess.
If you are authorized but the authority has lapsed/expired or has been cancelled and you still
import, you will be charged of illegal importation.
Q: what is the meaning of importation/elements of importation?
A:

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1.
2.

importation or bringing into the Philippines any prohibited or regulated drugs


without authority of law

Q: what constitutes importation?


A: the word import connotes the bringing into the Philippines
SALE (Sec 4 and Sec 15)
In sale, ownership is not a defense
Pp vs.Madarang
G.R. No. 70569. January 7, 1987
That the marijuana leaves may have belonged to Juan is of no moment.
Ownership and possession are not indispensable elements of the crime under
consideration. The mere act of selling or even acting as broker in a sale of marijuana and
other prohibited drugs consummates the crime under Section 4. When Madarang
negotiated the sale without authority of Juan's marijuana leaves to Villoria who posed as
a buyer, he took a direct and active part in the crime. His guilt has been established
beyond reasonable doubt.
PEOPLE VS. MARCOS
G.R. No. 83325. May 8, 1990
It must be pointed out that ownership and possession are not indispensable
elements of the crime. The mere act of selling or even acting as broker in the sale of
marijuana and other prohibited drugs consummates the crime.
INSTIGATION AND ENTRAPMENT DISTINGUISHED; ENTRAPMENT LEGAL;
It must be noted that in instigation, where the officers of the law or their agents
incite, induce, instigate or lure an accused into committing an offense, which he
otherwise would not commit and has no intention of committing, the accused cannot be
held liable. But in entrapment, where the criminal intent or design to commit the offense
charged originates from the mind of the accused and law enforcement officials merely
facilitate the commission of the offense, the accused cannot justify his conduct.
Instigation is a "trap for the unwary innocent." Entrapment is a trap for the unwary
criminal
In entrapment, the entrapper resorts to ways and means to trap and capture a
lawbreaker while executing his criminal plan. On the other hand, in instigation the
instigator practically induces the would-be defendant into committing the offense, and
himself becomes a co-principal. Entrapment is no bar to prosecution and conviction
while in instigation, the defendant would have to be acquitted
The difference in the nature of the two lies in the origin of the criminal intent. In
entrapment, the means originates from the mind of the criminal. The idea and the
resolve to commit the crime come from him. In instigation, the law enforcer conceives
the commission of the crime and suggests to the accused who adopts the idea and carries
it into execution. The legal effects of entrapment do not exempt the criminal from
liability. Instigation does. The mere fact that the authorities deceived the appellants into
believing that the former were buyers of heroin does not exculpate the latter from
liability for selling the prohibited drugs. The police can legitimately feign solicitation to
catch criminals who habitually engage in the commission of the offense
CASE AT BAR;

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The mere fact that the authorities deceived the appellants into believing that the
former were buyers of heroin does not exculpate the latter from liability for selling the
prohibited drugs. The police can legitimately feign solicitation to catch criminals who
habitually engage in the commission of the offense (Pp. v. Natipravat, 145 SCRA 483
[1986]).
SC: in sale of prohibited drugs contemplated under section 4, ownership of the drugs by
the seller is not indispensable for the consummation of her committing the prohibited
transaction.
In proving sale, the prosecution must present evidence of the exchange of the
prohibited or regulated drugs for money or for any material consideration.
Bartering Prohibited Drug with thing Of Value
PEOPLE VS.PERIODICA JR
G.R. No. 73006. September 29, 1989
The law does not expressly mention barter as a prohibited transaction but in a case
where the accused had in fact delivered to the PC informer a box containing marijuana
leaves in return of a 45 caliber pistol found in his possession, and this not being refuted
by the accused. The conviction for sale must stand.
PEOPLE VS. FIDER
G.R. No. 105285. June 3, 1993
CASE AT BAR. In the case at bar, the evidence for the State consisted solely of
the testimony of the arresting NBI agents (i.e., the two [2] NBI agents who had waited
outside the house of Ma. Sarah F.G. Domondon) and the NBI Forensics specialist. The
two (2) handguns which were allegedly bartered or exchanged for 100 grams of "shabu",
and which were supposedly obtained from the NBI itself, were not presented in evidence
by the prosecution; no explanation was offered for this obvious hiatus in the
prosecution's case.
For reasons which also do not appear on the record of this case, the two (2) NBI
agents who had acted as poseur-buyers were not presented before the trial court. The
result was that important questions bearing upon the specific culpability of appellant
Renato Fider vis-a-vis the other accused Ma. Sarah Domondon, remained unanswered:
e.g., was appellant Renato Fider actually present in the room during the consummation
of the guns-for-shabu transactions between co-accused Ma. Sarah Domondon and the
poseur-buyers? What was the precise participation of appellant Fider in respect of the
guns-for-shabu transactions? Did he physically receive the guns? Did he hand over the
"shabu" to the poseur-buyers? Or was appellant Fider, albeit a drug user, essentially an
innocent house guest of co-accused Ma. Sarah Domondon, being merely in the wrong
place at the wrong time?
PROOF OF FACT OF SALE OR POSSESSION OF PROHIBITED OR REGULATED
DRUG; WHEN TESTIMONY OF POSEUR-BUYER BECOMES MATERIAL AND WELLNIGH INDISPENSABLE. We have held in many cases that the testimony of the
poseur-buyer becomes material and well-nigh indispensable when the accused denies
having committed the prohibited act. Without the testimony of the poseur-buyer, more
often than not, there is not convincing evidence that the accused did sell or possess the
prohibited or regulated drug.

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*Motorcycle for shabu was also held as sale. Exchange of drugs for anything of value is
sale.
ADMINISTRATION (Sec 4 and Sec 15)
Refers to the act of introducing into the body of any person, any dangerous drug, with or
without knowledge by INJECTION, INGESTION, or any other means of committing any act of
indispensable assistance to a person in administering a dangerous drug to himself.
DELIVERY (Sec 4 and Sec 15)
Q: WHAT IS TO DELIVER?
A: a persons act of knowingly passing a dangerous drug to another personally or otherwise with or
without consideration.
BAR exam: there was a buy-bust operation, the posseur buyer said I wanna score ice so he
was given shabu, after he got the shabu he ran away he did not pay. The person was charged with
sale of prohibited drug he was convicted but he appealed to the SC. The SC said there was no sale
but he is still convicted not by the act of selling but conviction is for delivery of prohibited drug. It is
the giving or passing drugs without consideration.
BAR exam: a person is just walking on the street, he saw and picked up 7 packs of shabu. He had no
intention to use, no intention to possess but he brought it, and he saw his friend who is an addict so
he gave the packs to his friend. Liable? Yep, for delivery!
DISTRIBUTION AND TRANSPORTATION (Sec 4 and Sec 15)
In the Act, there is no definition of to transport but there is a judicial definition which
says that to transport is to carry or convey from 1 place to another, and the fact that there is
conveyance suffices to support that the act of transporting has been committed. (PEOPLE vs. LO
HO WING). In this case, he said there was no transportation because he did not reach his
destination but the SC said NO! It does not matter if you did or did not reach your destination. In
transporting, there is the use of a conveyance, like certain vehicle, airplane, or taxi. . In delivery,
none, it is done manually.
BROKERING is punishable; ownership is not a defense.
MAINTENANCE OF A DEN, DIVE OR RESORT (Sec 5 and Sec 15-A)
A penalty of reclusion perpetua to death shall be imposed on any person or group of
persons who shall maintain a den, dive or resort where any prohibited drug is used in any form or
where such prohibited drugs in quantities specified in section 20paragraph 1 of the Act
EMPLOYEES AND VISITORS OF PROHIBITED DRUG DEN (Sec. 6)
(There is no counterpart provision in articles III in regulated drug)
Q: who are employees?
A: it includes caretaker, helper, watchmen, lookout, and other persons employed BY THE
OPERATOR (not employed by the user) of a prohibited drug den, dive, resort where any prohibited
drug is administered, delivered, distributed sold or used with or without compensation, in
connection with the operation thereof. [Here, note that the employee must be employed by the
operator. Illustration: you and your personal bodyguard went to the drug den, you entered, and

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you told the bodyguard to stay and be the look out for me. Is the personal bodyguard liable? NO,
HE IS NOT LIABLE BECAUSE THE LAW SAYS THAT THE EMPLOYEE MUST BE A PERSON
EMPLOYED BY THE OPERATOR, NOT THE USER. Here, the personal bodyguard was not
employed by the operator but by the user. THE LAW SHOULD BE STRICTLY CONSTRUED. THE
LAW IS LIKEWISE CLEAR, THERE IS NO ROOM FOR INTERPRETATION.]

ANY PERSON WHO, NOT BEING INCLUDED IN THE TERM EMPLOYEE SHALL
KNOWINGLY VISIT ANY PROHIBITED DRUG DEN, DIVE OR RESORT SHALL ALSO BE
PENALIZED.

TAKE NOTE: if you visit a drug den dive or resort for shabu users, YOU ARE NOT LIABLE. Why?
Because there is NO LAW which punishes it. Look at article III, there is none.
MANUFACTURE (Sec. 7 and Sec. 14-A)
Committed by any person who, unless authorized by law, shall engaged in the manufacture of any
prohibited drug.
Q: why is it that in the law, you always find the phrase UNLESS AUTHORIZED BY LAW?
A: let us review our criminal procedure
GENERAL RULE: if a negative allegation is an ingredient of a criminal offence it must be alleged
in the information. Example in illegal possession of firearm, it must be allege that the accused has
no permit or authority form the govt (firearms and explosive section). It must be alleged and it
must be proved. Even if it is allege but it is not proved, then the accused must be acquitted for
Failure to prove the negative element.
EXCEPTIONS TO THE GENERAL RULE:
Where the negative allegation will not be buttress by the evidence. In the case of illegal
possession of firearm, the general rule is present evidence of lack of license. But in many cases the
SC said that if the firearm is importing an armalite the prosecution need not prove that this guy has
no authority because no civilian is allowed to possess this kind of firearm. Therefore, the defense
has to prove that the person falls within the exception. The same is true in dangerous drug cases.
The prosecution need not prove that the person has no authority from the dangerous drugs board
because it is now incumbent upon the accused that he falls under the exception, that he is an
authorized importer, or authorized to prescribed and authorized to administer like doctor,
pharmacists etc
Definition : RA 6425, Sec 2.
x
x
x
(j)
"Manufacture" means the production, preparation, compounding or processing
of a dangerous drug either directly or indirectly or by extraction from substances of natural origin,
or independently by means of chemical synthesis or by a combination of extraction and chemical
synthesis, and shall include any packaging or repackaging of such substance or labeling or
relabeling of its container; EXCEPT that such term does not include the preparation,
compounding, packaging, or labeling of a drug or other substance by a duly authorized practitioner
as an incident to his administration or dispensing of such drug or substance in the course of his
professional practice;
POSSESSION AND USE (Sec. 8 and Sec 16)
Elements of possession:
1. actual or constructive possession

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2.

1.
2.
3.

Animus possidendi or intent to possess (this is important because it may be a set-up or a


planted evidence. This is a defense - no intent to possess.)

DEFENSES in Dangerous Drugs cases:


Defense of frame-up in cases falling under the provisions of DDA must be proved by strong
and convincing evidence.
Defense of lack of intent to posses or lack of animus possidendi may be used as a defense
Defense of lack of knowledge or awareness of the prohibited nature of the drug.

Although as a general rule, in acts mala prohibita criminal intent is not required, but in other cases
by jurisprudence, lack of knowledge or animus possedendi is a defense.
*Ownership is not a defense
A person charged with use of a prohibited drug will not be charged with possession because
possession is inherent in use, you cannot use if you do not possess the drug PROVIDED it is the
same drug.
Illustration:
BAR EXAM: buy-bust operation: Mr. x has in his hands shabu and another pack found in
his pocket. He sells the one in his hands. HELD: there are two crimes that have been committed.
SALE and POSSESSION of illegal drugs. Why? Because the subject of the sale is different from the
subject of possession. So two crimes.
But it is different if only 1 and the same drug is involved because only one crime, e.g. if you are
charged with selling, you will no longer be charged with possession.
CASES:
PEOPLE VS. DE JESUS
G.R. Nos. 71942-43. November 13, 1986
The essence of these cases: the acts punished are the acts of possession and use.
Use necessarily absorbs possession. However, possession does not necessarily include
use. Possession incident to sale of prohibited drug is not a separate offense from the sale
thereof. Possession is inherent in the sale.
Since possession of prohibited drugs is inherent in the crime of selling them, it is to
be assumed that, in punishing selling, the legislature took into account the need to
possess them first. The penalty for selling - life imprisonment to death is already quite
harsh.
PEOPLE VS. ANDIZA
G.R. Nos. L-71986-87. August 19, 1988
Possession of marijuana is inherent in the crime of selling them.
PEOPLE VS. RAMOS
G.R. Nos. 85401-02. June 4, 1990
POSSESSION OF PROHIBITED DRUGS; PROVED BEYOND REASONABLE
DOUBT IN CASE AT BAR. This Court quotes with approval the following arguments
of the Solicitor-General: "Appellant's defense falls against the categorical testimony of
the NARCOM agents that the trash can was found under the table where her legitimate

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wares were being sold. This fact was not denied by appellant. Therefore, she was the only
person who had access to the trash can. The same was under her immediate physical
control. She had complete charge of the contents of the trash can under the table to the
exclusion of all other persons.
In law, actual possession exists when the thing is in the immediate occupancy and
control of the party. But this is not to say that the law requires actual possession. In
criminal law, possession necessary for conviction of the offense of possession of
controlled substances with intent to distribute may be constructive as well as actual. It is
only necessary that the defendant must have dominion and control over the contraband.
These requirements are present in the situation described, where the prohibited
drugs were found inside the trash can placed under the stall owned by appellant. In fact,
the NARCOM agents who conducted the search testified that they had to ask appellant to
stand so that they could look inside the trash can under the papag' of the appellant.
Hence the trash can was positioned in such a way that it was difficult for another person
to use the trash can. The trash can was obviously not for use by her customers.
"Appellant's arguments are inherently weak and improbable and cannot stand against
the clear evidence pointing to her actual possession of the prohibited drug. The raw facts
testified to by the NARCOM agents were corroborated by appellant and their conclusion
that she had possession of the marijuana sticks found in the trash can is consistent
with law and reason.
PEOPLE VS. CATAN
G.R. No. 92928. January 21, 1992
CRIMINAL LAW; DANGEROUS DRUGS ACT; POSSESSION OF MARIJUANA,
INHERENT IN THE CRIME OF SELLING THEM; QUALIFICATION. Possession of
marijuana is generally inherent in the crime of selling them and that conviction for both
offenses is not feasible.
However, as held also in People v. Manalansan, L-76369-70, 14 September 1990,
the rule that the possession of marijuana is absorbed in the sale thereof is true only with
respect to the marijuana delivered to the poseur buyer and not to the marijuana found in
the seller's possession, not covered by the sale and probably intended for a different
purpose like another sale, or its direct use by the possessor.
Consequently, Appellant can be convicted separately of the offense of selling a
prohibited drug in connection with the marijuana sold by him to the poseur-buyers
under Section 4 of Rep. Act No. 6425, as amended, and of the crime of possession
of marijuana under Section 8 of the same law, with respect to the marijuana found in
his premises after this arrest.
Sale absorbs possession if both refer to the same drug but if what was sold was different from what
was found in the accuseds possession then there are two offenses.
CULTIVATION OF PLANTS WHICH ARE SOURCES OF PROHIBITED DRUGS (Sec 9)
What is punished here is the cultivation or culture of plants which are sources of prohibited
drugs. So that if the person cultivates or cultures plant which are sources of regulated drugs, he is
not penalized, coz there is no law which punishes it. (TAKE NOTE BECAUSE YOU MIGHT BE
CONFUSED ESPECIALLY IF GIVEN A PROBLEM IN THE BAR)
Cultivate or culture means the act of knowingly planting, growing, raising or permitting the
planting growing, or raising of any plant which is the source of a prohibited drug. (Take note of the
word KNOWINGLY) illustration I: if you saw a plant and like it a lot so you place it on a pot and

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place on your table as ornamental plant, and you have no knowledge that such plant is a source of a
prohibited drug. You cannot be convicted. Illustration II: when you have say 5 hectares of land
and you plant there also 5 hectares worth of plants which are sources of prohibited drugs, that
cannot be taken as ornamental, it might be that it is for commercial purposes.
Q: What is penalized here?
A: any person who shall plant, cultivate, or culture on any medium Indian hemp, opium poppy or
any other plant which is or may hereafter be classified as dangerous drug or from which any
dangerous drug may be manufactured or derived.
Q: what happens if the land upon which they are planted is a public land?
A: the penalty will be the maximum coz it cannot be confiscated coz the subject land belongs to the
government.
RECORDS OF PRESCRIPTION, SALES, PURCHASES, ACQUISITIONS AND/OR
DELIVERIES
(Sec 10 and Sec 17)
Refer to Section 25 RECORDS REQUIRED OF PHARMACISTS, OHYSICIANS,
VETERINARIANS, OR DENTISTS DISPENSING OR PRESCRIBING DANGEROUS DRUGS AND
OF IMPORTERS, MANUFACTURERS, WHOLESALERS, DISTRIBUTORS, DEALERS, AND
RETAILERS OF DANGEROUS DRUGS. They should keep their records as required by and in
accordance with law otherwise, they will be charged for violation of section 10.
The license of the pharmacists, physician etc who is found to have violated this provision will be
revoked.
UNLAWFUL PRESCRIPTION OF DRUGS (Sec 11 and Sec 18)
Elements of Unlawful Prescription:
1. The making or issuance of any prescription or any other writing purporting to be a
prescription for prohibited drug.
2. The maker or issuer is not authorized by law.
UNNECESSARY PRESCRIPTION OF DRUGS (Sec 12 and Sec 19)
If the sickness is mild and you prescribe a dangerous drug, you will be liable for unnecessary
prescription.
Who are liable?
1. Physician or
2. Dentist
Who shall prescribe any prohibited drug for any person whose physical and physiological
condition does not require the use of such.
Elements of Unnecessary Prescription:
1. The prescription is made by a physician or a dentist.
- If prescribed by other persons, it will not be unnecessary prescription, but
unlawful prescription.

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2. That the physical or physiological condition of the person to whom the prescription is given
does not require the use of prohibited drug.
If the sickness is mild and you prescribe a dangerous drug, you will be liable for unnecessary
prescription.
POSSESSION OF OPIUM PIPE AND OTHER PARAPHERNALIA FOR PROHIBITED
DRUGS (Sec 13)
x x x any person who, unless authorized by law, shall possess or have under his control any
opium pipe, equipment, instrument, apparatus or other paraphernalia fit or intended for
smoking, consuming, administering, injecting, ingesting or otherwise using opium or any other
prohibited drug.
The possession of such opium pipe, equipment, instrument, apparatus or other
paraphernalia fit or intended for any of the purposes enumerated. shall be prima facie evidence
that the possessor has smoked, consumed, administered to himself, injected, ingested or used a
prohibited drug.
Possession of paraphernalia is prima facie evidence of use.
Sec. 20. Application of Penalties, Confiscation and
Forfeiture of the Proceeds or Instruments of the Crime
(SEE: Pp v MARTIN SIMON, for graduating of penalties.)
Every penalty imposed shall carry with it the confiscation and forfeiture, in favor of the
Government, of all the proceeds of the crime unless they are the property of a third person not
liable for the offense, but those which are not of lawful commerce shall be ordered destroyed
without delay.
Dangerous drugs and plant sources of such drugs as well as the proceeds or instruments of
the crime so confiscated and forfeited in favor of the Government shall be turned over to the Board
for proper disposal without delay.
Any apprehending or arresting officer who misappropriates or misapplies or fails to
account for seized or confiscated dangerous drugs or plant-sources of dangerous drugs or proceeds
or instruments of the crime as are herein defined shall after conviction be punished by the penalty
of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos."
Mother of all cases relating to drugs cases PEOPLE versus SIMON
PEOPLE vs. MARTIN SIMON
G.R. No. 930280 July 29, 1994
CRIMINAL PROCEDURE; ENTRAPMENT; WHEN MAY BE RELIED UPON BY THE COURT.
The Court is aware that the practice of entrapping drug traffickers through the utilization of poseurbuyers is susceptible to mistake, harassment, extortion and abuse. Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation
was effected. No ill motive was or could be attributed to them, aside from the fact that they are presumed
to have regularly performed their official duty. Such lack of dubious motive coupled with the
presumption of regularity in the performance of official duty, as well as the findings of the trial court on
the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of
having been framed, erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was
caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to
controvert the charge, he does not appear to have plausibly done so.

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VIOLATION OF DANGEROUS DRUGS ACT; ELEMENT; PRESENT IN CASE AR BAR.


Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament from his predicament since his criminal participation in the illegal sale of
marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs
requires merely the consummation of the selling transaction which happens the moment the buyer
receives the drug from the seller. In the present case, and in light of the preceding discussion, this sale
has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable
that he would sell marijuana to a total stranger. We take this opportunity to once again reiterate the
doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that class of
crimes that may be committed at any time and in any place. It is not contrary to human experience for a
drug pusher to sell to a total stranger, for what matters is not an existing familiarity between the buyer
and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves.
While there may be instances where such sale could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted
on that occasion, we can safely say that those exceptional particulars are not present in this case.
REPUBLIC ACT NO. 6425, AS AMENDED BY REPUBLIC ACT NO. 7659; PENALTY;
CONSTRUED; CASE AT BAR. Probably through oversight, an error on the matter of imposable
penalties appears to have been committed in the drafting of the aforesaid law, thereby calling for and
necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of
Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and
a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell,
administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750
grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall
range from prision correccional to reclusion perpetua depending upon the quantity. In other words,
there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its
dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and
also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error
has been committed with respect to the other prohibited and regulated drugs provided in said Section
20. To harmonize such conflicting provisions in order to give effect to the whole law, we hereby hold that
the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in
the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion
perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be
construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous
drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of
Section 20, as now modified, the law provides that the penalty shall be taken from said range
"depending upon the quantity" of the drugs involved in the case. The penalty in said second paragraph
constitutes a complex one composed of three distinct penalties, that is, prision correccional, prision
mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period,
with the lightest of them being the minimum, the next as the medium, and the most severe as the
maximum period. Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating
circumstances determine which period of such complex penalty shall be imposed on the accused. The
peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that
the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction.
Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of
Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal
imposable penalty depending on the quantity of the drug involved. Thereby, the modifying
circumstances will not altogether be disregarded. Since each component penalty of the total complex
penalty will have to be imposed separately as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period of that component penalty, as shall
hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of
our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities
of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively quotient, and double or treble the same, to be respectively
the bases for allocating the penalty proportionately among the three aforesaid periods according to the
severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be
prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal.
Parenthetically, fine is imposed as a conjuncture penalty only if the penalty is reclusion perpetua to
death. Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of
prision correccional is consequently indicated but, again, another preliminary and cognate issue has first
to be resolved.
RULE FOR GRADUATING PENALTIES; APPLICATION IN SPECIAL LAWS, WHEN
ALLOWED; RATIONALE; CASE AT BAR. Prision correccional has a duration of 6 months and 1 day

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to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated
in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty
to be imposed, which is here to be taken from the penalty of prision correccional, the presence or
absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken
into account. The Court is not unaware of cases in the past wherein it was held that, in imposing the
penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the
Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said
cases, however, reveals that the reason therefor was because the special laws involved provided their
own specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum periods, it would consequently be
impossible to consider the aforestated modifying circumstances whose main function is to determine the
period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for
the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees
could not be given supplementary application to special laws, since the penalties in the latter were not
components of or contemplated in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former,
cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law
against, such supplementary application. The situation, however, is different where although the offense
is defined in and ostensibly punished under special law, the penalty therefor is actually taken from the
Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and
legal effects under the system of penalties native to said Code. When, as in this case, the law involved
speaks of prision correccional, in its technical sense under the Code, it would consequently be both
illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case
the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision
correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal
Code, there being no attendant mitigating or aggravating circumstance.
MODIFYING CIRCUMSTANCES; APPLICATION IN SPECIAL LAW, CONSTRUED; CASE AT
BAR. While not squarely in issue in this case, but because this aspect is involved in the discussion on
the role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of the
penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and
consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code
as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of
the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more
ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one
degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can
reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68
should not apply in toto in the determination of the proper penalty under the aforestated second
paragraph of Section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a
penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts
shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or
two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of
as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and
since the complex penalty in this case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and public
censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower
than prision correccional. It is for this reason that the three component penalties in the second
paragraph of Section 20 shall each be considered as an independent principal penalty, and that the
lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of
drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficiency rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly
addressed to Congress.
INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. The final query is whether or
not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since
drug offenses are not included in nor has appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The

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more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that
Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term prescribed by the same" We hold that this
quoted portion of the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the "offense is punished" under that law. There can
be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special
laws was necessary because of the nature of the former type of penalties under said laws which were not
included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no
minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as
is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified
under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms,
hence with their technical signification and effects. In fact, for purposes of determining the maximum of
said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in the effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1
which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be properly imposed under
the rules of said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would
not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret
in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act No. 4103 by a
mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting
from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we
have held that what is considered is the penalty actually imposed and not the penalty imposable under
the law, and that reclusion perpetua is likewise embraced therein although what the law states is "life
imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is that under the
concurrence of the principles of literal interpretation, which have been rationalized by comparative
decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and
related to contemporaneous legislation; and of structural interpretation, considering the interrelation of
the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to
that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of
Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation.
CONSTRUED; APPLICATION IN CASE AT BAR. The Indeterminate Sentence Law is a legal
and social measure of compassion, and should be liberally interpreted in favor of the accused. The
"minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right,
the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. It
does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of
his sentence under set conditions. That minimum is only the period when the convict's eligibility for
parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy
thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum
sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of
the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months
of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could
thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial
teapot.

Q: In dangerous drugs cases, what happens to the shabu, marijuana, tooter, opium pipe, etc.? Why?
A: The shabu, etc., will be confiscated in favor of the government and destroyed. This is so to
prevent its recycling.

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Section 20-A Plea-Bargaining Provision


Any person charged under any provision of RA 6425 where the imposable penalty is
reclusion perpetua to death shall not be allowed to avail of the provision on pleabargaining. (as added by Sec. 18, RA 7659.)
In criminal procedure, the accused should plead guilty to a lesser offense. If the crime is murder,
plead guilty to homicide. If the crime is frustrated homicide, plead guilty to less serious physical
injuries. Illegal possession of firearm, plead guilty to erasing the serial number.
But in dangerous drugs cases, there will be NO PLEA-BARGAINING if the penalty imposable is
reclusion perpetua to death.
GENERAL RULE in Criminal law Jurisprudence:
Conspiracy is not punishable.
Attempt is not punishable.
Section 21 Attempt and Conspiracy
The same penalty prescribed by RA 6425 for the commission of the offense shall be
imposed in case of any attempt or conspiracy to commit the same in the following cases:
(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 drug users;
(d) Manufacture of dangerous drugs; and
(e) Cultivation or culture of plants which are sources of prohibited drugs.
Section 22 Additional Penalty if Offender is an Alien
Any alien who violates any of the provisions of Articles II and III of RA 6425 shall be
deported without further proceedings immediately after service of sentence.
Section 23 Criminal Liability of Officers of Partnerships,
Corporations, Associations and Other Juridical Persons;
Criminally liable as a co-principal.
Section 24 Penalties for Government Officials and Employees and Officers and
Members of Police Agencies and the Armed Forces; Planting of Evidence
The maximum penalties shall be imposed if those found guilty of any of the said offenses
are government officials, employees of officers including members of police agencies and the armed
forces.
Section 24-A -- Laboratory Examination/Test on Apprehended Users of Dangerous
Drugs
Any person apprehended or arrested for violating the provisions of this Act shall,
immediately upon his arrest/apprehension, be subjected to laboratory examinations/test, if the
apprehending/arresting officer has reasonable ground to believe that the person

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arrested/apprehended, on account of physical signs or symptoms or other visible or outward


manifestation, is under the influence of dangerous drugs, and if found to be positive of such drugs,
the results of the laboratory examination/test shall be prima facie evidence that such person has
used dangerous drugs.
If found negative, the suspect shall immediately be released, unless there be other evidence
indicative of such violation.
Section 25 -- Records Required of
a. Pharmacists,
b. Physicians, Veterinarians or Dentists Dispensing or Prescribing Dangerous Drugs, and
Importees,
c. Manufacturers, Wholesalers, Distributors, Dealers and Retailers of Dangerous Drugs
Section 26 Penalty for a Person Importing
Dangerous Drugs by Making Use of Diplomatic Passport
Any person who, unless authorized under this Act, shall import or bring into the
Philippines any dangerous drug by making use of a diplomatic passport, diplomatic facilities, or
any other means involving his official status intended to facilitate the unlawful entry of dangerous
drugs. In addition, the diplomatic passport shall be confiscated and cancelled.
Section 27 Criminal Liability of Possessor or Use of Dangerous Drugs During Social
Gatherings
Any person found possessing or using any dangerous drug during a party or at a social
gathering or in a group of at least five persons possessing or using such drugs.

ARTICLE VI -- Rehabilitative Confinement and Suspension Sentence


Two Kinds of Rehabilitation:
(1) Compulsory
(2) Voluntary
Section 30 Voluntary Submission of a Drug Dependent to Confinement, Treatment
and Rehabilitation by the Dependent Himself of Through his Parent, Guardian or
Relative
First time
If a drug dependent voluntarily submits himself for confinement, treatment and rehabilitation
in a center and complies with such conditions therefore as the Board may by rules and regulations
prescribe, he shall not be criminally liable for any violation of Section 8, Article II and Section 16,
Article III of RA 6425.
Second time
Should the drug dependent, having voluntarily submitted himself for confinement, treatment
and rehabilitation in, or having been committed to a center upon petition of the proper party,
escape therefrom, he may resubmit himself for confinement (no prosecution) within 1 week from
the date of his escape, or his parent, guardian or relative may, within the same period surrender
him for recommitment.

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If, however, the drug dependent does not resubmit himself for confinement or he is not
surrendered for recommitment, as the case may be, the Board may apply with the court for the
issuance of a recommitment order.
Third time
If, subsequent to such recommitment, he should escape again, he shall no longer be exempt
from criminal liability for use of possession of any dangerous drugs.
Voluntary Rehabilitation:

If you are a drug dependent, you will file a petition with the RTC.
-- Petition for Confinement, Treatment and Rehabilitation

Even if you are already 50 or 60 years old, or 37 or 26, it does not matter. If you file a Petition
for Voluntary Confinement, Treatment and Rehabilitation, you will not be prosecuted for use.

Why is it that you should file the Petition with the RTC?
Because it is a court of general jurisdiction.

You must attach to your Petition the Drug Dependency Examination Report, issued by a duly
accredited DPB physician.
Note: Not all physicians are credited.
Then you will appear personally before the court. You will be asked questions:
Q: Are you a drug dependent?
A: Yes.
Q: What dangerous drugs are you using? Etc.

If you escape while in confinement, one chance. Recommitment. The third time, no more.

Section 31 Compulsory Submission of a Drug Dependent to Treatment and


Rehabilitation
Compulsory Rehabilitation:

A person is charged with the commission of a crime is on trial. The fiscal of the court or
counsel for accused found that the accused is a drug dependent. There will be compulsory
rehabilitation. Trial will be suspended and he will stay in a rehabilitation center.

In some cases, his stay in the drug rehabilitation center is considered as sentence. It is
considered service of sentence.

Section 32 Suspension of Sentence for First Offense of a Minor


If an accused under 18 years of age at the time of the commission of the offense but not
more than 21 years at the time when the judgment should have been promulgated..if found guilty,
then the sentence will be suspended but upon application of the accused..

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Re: Apprehension and prosecution of violators of RA 6425.


BUY-BUST OPERATION
PEOPLE VS. RAMOS
G.R. Nos. 85401-02. June 4, 1990
Among the most known and frequently employed police practice in going after
suspected drug offenders is the so called BUY BUST OPERATION. A Buy-bust operation
is a method employed by police authorities to catch malefactors in the act of committing
the crime of drug vending. It is essentially a form of entrapment, a procedure not
prohibited by the RPC.
Pp vs. VALMORES
122 SCRA 922
Entrapment has proven to be an effective means of apprehending drug peddlers.
Pp vs. DEL PILAR 188 SCRA 37
And it has received judicial sanction as long as it is carried out with
constitutional and legal circumspection.
Pp vs. LAGASCA 148 SCRA 264
Entrapment is no bar to prosecution and conviction. It is not contrary to law.
Pp vs. FERNANDO 145 SCRA 151
Buy-bust operation is a recognized means of entrapment for the apprehension of
drug pushers. It does not always commend itself as the most reliable way to go after
the violators of The Dangerous Drugs Act as it is susceptible to mistake, as well as to
harassment, extortion and abuse.
Mechanics of BUY-BUST OPERATION:

Usually preceded by an informant. Usually informants work clandestinely. In the course


of the trial their names will not be disclosed.

After information given by the informant, the police authorities (usually the NARCOM)
will conduct a SURVEILLANCE.

Sometimes, a surveillance is followed by a TEST-BUY.


They will buy, but they will not arrest the pusher.
Then they will send the stock to the PNP crime laboratory for
examination.
The PNP crime laboratory will issue a physical science report. Findings
that this is a regulated drug containing or found positive for met
amphetamine hydrochloride.

After the test-buy, they will form a buy-bust team usually composed of 3 members.
One will act as a decoy or poseur buyer and the other will act as guard or
back-up.
The decoy or poseur buyer will buy from the pusher or peddler.
There will be exchange of money and shabu. The transaction is
consummated.

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As soon as the transaction is consummated.


The poseur buyer will flash the prearranged signal.
Then they will rush to the suspect.
The officers will get the shabu and if possible, the buy money. But
usually, but not necessarily, the agents will use marked money or money
laced with fluorescent powder.

In accordance with the rules of court, the confiscated or the seized properties will be
inventoried and duly presented.
In many cases they will compel the drug peddler to issue a receipt that
these are the items, these are the pounds of shabu taken from the peddler.
Supreme Court --- You are violating his right. It is same as
custodial interrogation. Without counsel you have him issue a
receipt, it is like making him confess. The officer who confiscated the
drug should be the one to issue the receipt, not that the peddler will
be the one who will issue the receipt.

Then this is usually followed but not necessarily followed by a FIELD TEST, among
themselves. To ensure if the confiscated drug is really a dangerous drug.

To deliver the specimen to the chemist or the forensic analyst.


PNP and NBI crime laboratories.
Specimen will be examined. There will be 3 tests that will be conducted.
If found positive for the presence of met amphetamine hydrochloride
(shabu) or other dangerous drug, then they will issue a chemical science
or physcal science report.
This is a very important piece of evidence because in possession and sale,
the corpus delicti is the drug itself. If you fail to present the drugs in
court, the accused should be acquitted.
Why? Because you have to prove that this is really a prohibited drug
or regulated drug.

If the prosecution fails to present the buy money, it does not necessarily mean that the accused
should be acquitted.
WHY?
All the prosecution has to do is to prove that there was exchange of shabu for
money. Because there are instances where these drug peddlers will throw away the
money or even swallow it, believing that if there is no buy money shown in court, they will
be acquitted of the case.

In one decision of the SC, the accused argued that there was no buy-bust because there was no
surveillance.
SC -- That is not necessary in buy-bust. With or without surveillance, if the
prosecution can proof sale.
Exchange for money and the drug plus the corpus delicti. Thats all.

In one case, the accused argued before the SC that there was no buy-bust, there was no sale
because they failed to present the informant.
SC -- No, because the testimony of the informant is only corroborative. If you prove
all the elements of sale, tapos, convicted.

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In another SC case, the accused argued, there was no field test. Probably the shabu delivered to
the forensic chemist is not the one which was taken from the accused.
SC -- Even if there was no field test, for as long as all the elements of sale are proven,
the accused is convicted.

INFORMER vs. DECOY


INFORMER -- is one who communicates knowledge of someone having committed or about to
commit a crime to the proper authorities, who, by themselves, acting independently may obtain the
evidence necessary for the prosecution of the offender.
DECOY -- did something more.
-- he played a substantial part in the act complained of and is in fact is claimed by the
appellant as the real owner of the subject marijuana.
-- is one who participates in buy-bust, an informer may or may not participate.
Re: Whether or not it is indispensable to present the informer or to identify the witness
GENERAL RULE: It is therefore clear that in determining whether a witness identity must be or
must not be revealed during a trial, 2 important considerations must be considered:
(2) If the witness was merely an informer, and his testimony is not material to the accuseds
defense, then the prosecution has the privilege of withholding his identity.
(3) If the witness was not merely an informer, but was also the decoy or the poseur buyer, then
his identity may not be withheld in the face of the accuseds insistence that his identity be
revealed because the accuseds defense hinges on his credibility and unless his identity is
revealed, the accused will be unable to impeach him.

Non presentation of an informer is a privilege that its own inherent limitation that of fairness
in the administration of criminal justice, but where the disclosure of the informers identity is
relevant and helpful to the defense of the accused, or is essential to the proper disposition of
the case, the privilege to withhold his identity must give way. Trial courts must always bear in
mind that the right to meet the accuser and to have him examined is a fundamental right. The
constitution so mandates that they cannot do otherwise especially so in instances where the
parties sought to be presented and examined possesses vital information essential to the
defense in vindicating the accuseds plea of innocence. Such violation of appellants
fundamental right calls for the reversal of his conviction. (Rubiaro vs. US, 353 US 5)

People vs. Ramon Chua Uy March 7, 2000


(reiteration of previous SC decisions defining the buy-bust operation.)

People vs. Garcia 235 SCRA 371


The buy-bust operation is a form of entrapment whereby ways and means are resorted to
for the purpose of trapping and capturing law-breakers in the execution of their criminal plan. It is
a procedure or operation sanctioned by law and which has consistently proved itself to be an
effective method of apprehending drug peddlers. And unless there is a clear and convincing
evidence that the members of the buy-bust team were inspired by any improper motive, or were not
properly performing their duty, their testimonies on the operation deserve full faith and credit.

There are patterns or judicial policies on defenses set up by accused for violating RA 6425.
The most common defense is frame-up.

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People vs. Dechoso; People vs. Constantino; People vs. Franca


The defense of frame-up in drugs cases requires strong and convincing evidence because of the
presumption that the law enforcement agencies acted in the regular performance of their official
duties.
People vs. Lacabanes; People vs. Alegro; Manalili vs. CA; People vs. Enriquez
Moreover, the defense of denial or frame-up like alibi has been viewed by the court with
disfavor for it cannot just as easily be concocted and is a common and standard defense ploy in
most prosecutions of dangerous drugs cases.
People of the Phils. vs. Alfredo Riquez, November 19, 1999 (BAR)
The common defense of accused in drugs cases:
I should not be convicted because the evidence for the prosecution is not credible.
The buyer is unknown to me.
The act of selling was done in front of a busy street, in front of sari-sari stores, etc. or
in public places.

According to many accused, the selling of drugs is done in secrecy. But SC held --- the selling of
drugs nowadays is like selling cigarettes.

People vs. Nario (1993); People vs. Blas


The defense likewise strives to establish the innocence of accused-appellant by claiming that
no drug pusher in his right mind would sell to a stranger 250 grams of shabu on a busy street
like Estrella St. and certainly not in broad daylight, in as much as activities such as these are
done clandestinely.
SC--- We are not persuaded. If pushers peddle drugs only to persons known to them, then
drug abuse would certainly not be as rampant as it is today and would not cause a serious
threat to society. Weve found in many cases that drug pushers sell their prohibited articles to
any prospective customer, be he a stranger, or not, in private as well as in public places, even in
the daytime. Indeed, drug pushers have become increasingly daring, dangerous, and worse,
openly defiant of the law. Hence, what matters is not the existing familiarity between the buyer
and seller, or the time and venue of the sale, but the fact of agreement and the acts constituting
sale and delivery of prohibited drugs.
People vs. Aviles
Illegal drug trade is the scourge of our society. Drug pushers are merchants of death, killers
without mercy, who poison the mind and deaden the body.
People vs. Mateo Baloda
Their pernicious commodities cause so much physical, mental and moral pain, not only to the
immediate victims of their greed, but also and most specially to the families of their victims.
Hence, they deserved no mercy.
Two Kinds of Possession:
(1) Actual
(2) Constructive
If you are the owner of the house, dangerous drug is found therein, you are in
constructive possession of the drug.
Rationale: It is in the law of evidence. If you possess a thing, you exercise acts of
ownership over the thing you are presumed to be the owner.

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Under the rules of evidence, it is disputably presumed that things which a


person possesses or over which he exercises acts of ownership are owned by
him.
Case:
The finding of the dangerous drug in the house or within the premises of the house of the
accused is prima facie evidence of knowledge or ANIMUS POSSEDENDI and is enough to convict
in the absence of satisfactory explanation. The constitutional presumption of innocence will not
apply as long as there is some logical connection between the fact proved and the ultimate fact
presumed and the inference of one fact from proof of another shall not be so unreasonable as to be
purely arbitrary mandate. The burden of evidence is thus shifted to the possessor of the dangerous
drug to explain absence of animus possedendi. In the case under consideration, it is not disputed
that appellant was carrying a sack containing marijuana. Consequently, to warrant his acquittal, he
must show that his act was innocent and done without intent to possess, that is, without knowledge
that what he possesses was a prohibited drug.
People vs. Samuel U. Valdez (March 3, 1999)
Warrantless Arrest
If a policeman believes that a crime has been committed and there is probable cause,
he may cause the arrest or he may arrest the person himself.
Arrest originating from tip-off (carrying marijuana).
Valdez questioned the legality of his arrest: no personal knowledge on the part of the
policemen who arrested him and from tip-off is not personal knowledge.
SC-- Our jurisprudence is replete with instances where tipped information has
become sufficient probable cause to effect a warrantless search and seizure. In this
case, appellant was caught in flagrante since he was carrying marijuana at the time of
his arrest. A crime was actually being committed by the appellant, thus the search
made upon his personal effects falls squarely under paragraph a of the foregoing
provisions of law which allowed warrantless search incident to lawful arrest. While it
is true that SPO1 Mariano was not armed with a search warrant when the search was
conducted over the personal effects of appellant, nevertheless, under the
circumstances of the case, there was sufficient probable cause for said police officer to
believe that appellant was then and there committing a crime. Although the term
probable cause eludes definition, probable signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious
mans belief that the person accused is guilty of the offense with which he is charged or
the existence of such facts and circumstances which could lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched. The required probable cause that will
justify a warrantless search and seizure is not determined by a fixed formula but is
resolved according to the facts of each case.
People vs. Aminnudin
There was an information that these Muslims were coming to Iloilo days before his
disembarkation from the vessel.
There was plenty of time for the police officers to secure a search warrant. So when
Aminnudin arrived, he was arrested at the foot of the gangplank. Charged and
convicted for possession of dangerous drugs.
Acquitted by the SC because the arrest was illegal. There was plenty of time for the
police officers to secure a search warrant.

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However, in the People vs. Samuel U. Valdez case, on the other hand, it was an
emergency situation where there was no possibility for the police officers to secure a search
warrant. They were time-pressed to make the arrest. Guilty as charged.
People vs. Angelita Manalo
Instigation
Entrapment
Definition of Buy-Bust Operation
Burden of proof
People vs. Rolando Angeles
Classifying shabu
Methel Amphetamine HCl or shabu is a regulated drug. We reject appellants submission and
hereby rule that Methel Amphetamine HCl, commonly known as shabu or poor mans cocaine
is a regulated drug. The term Amphetamine is not to be understood in its ordinary sense, etc.
People vs. Theodoro Angeles
The prosecution failed to present the marked buy money.
SC for as long as the prosecution presents evidence of sale [exchange], even if the
money will not be produced in court.
In some cases the accused will throw away the money or sometimes even swallow it.
Convicted.

Possession of marijuana is absorbed in sale.

People of the Phils. vs. Martin Simeon [mother of all cases] July 29, 1994
The defense of Ringhop was discussed and also the policy.
The corpus delicti in drugs cases --- the dangerous drug itself must be presented in court.
Failure to mark money bills used for entrapment --- not fatal.
In sale, this is the policy of the Supreme Court --- the commission of the offense of illegal
sale of prohibited drugs requires merely the consummation of the selling transaction,
which happens the moment the buyer receives the drug from the seller.
--- sale of marijuana to a stranger is not improbable.
Guidelines in imposing penalties:
(1) Below 250 grams prision correccional
(2) 250-499 grams prision mayor
(3) 500-749 grams reclusion temporal
People vs. Watson December 1994
Failure to present buy-bust money not fatal so long as the dangerous drug is presented
and the accused is identified as the offender. The absence of marked money does not
create a hiatus in the evidence for the prosecution so long as the dangerous drug given or
delivered by the accused was presented before the court and the accused was clearly
identified as the offender.

Make sure you do not lose the evidence, otherwise your case will collapse!!!!

In buy-bust usually there is surveillance. Suppose there is the surveillance, does it


mean there was a buy-bust?
NO. A prior surveillance is not a prerequisite for the validity of an entrapment operation.
What is the policy of the Supreme Court if there is failure of the informer to testify?

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Testimony or identity of the informer may be dispensed with since narration would be
merely corroborative. People vs. de los Reyes

In the prosecution for the violation of the DDA, it is not necessary for the prosecution to
prove the negative element.

People vs. Rental de los Reyes January 21, 1994


Accused-appellant maintains that it was incumbent upon the prosecution to prove the
negative allegations in the information without any authority of law.
The argument is far from persuasive for the statute RA 6425, as amended, otherwise
known as The Dangerous Drugs Act of 1972, applies generally to all persons and prescribes
the sale, administration, delivery, distribution, transportation and manufacture of
dangerous drugs by any person. And NO PERSON IS PRESUMED AUTHORIZED TO
SELL ETC SUCH DRUGS, rather, any person claiming the benefit of the exemption must
prove that he falls under the protective mantle of the exemption.
The court almost always gives the presumption of regularity of performance of duty of a
peace officer.
FIELD-TEST was not present in this case.
Fatal or not? Failure to present certificate of field-test is not fatal.
People vs. Cesar Lucero
The mere act of delivery of the prohibited drug is punishable by law. The question of
money is immaterial because the dangerous drugs law punishes the mere act of delivery of the
prohibited drug after the offer to buy, the entrapping officer has been accepted by the prohibited
seller. In fact, the court has already held that the absence of marked money does not create a hiatus
in the evidence for the prosecutions so long as the prohibited drug given or delivered by the accused
was presented before the court and that it was clearly identified as the offender by the prosecution
eyewitnesses. The fact that there is actual conveyance suffices to support findings that the act of
transporting was prohibited.
People vs. Lo Ho Wing
The term TRANSPORT as used under the DDA means to carry or convey from one place to
another.
Operative words: to carry or to convey.
People vs. William Robert Burton
Attempting to transport hashish
In transportation of illegal drugs, it is immaterial if the accused reached his destination.

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TITLE SIX

CRIMES AGAINST PUBLIC MORALS


Chapter One
GAMBLING AND BETTING
ARTICLES 195- 199
REPEALED AND MODIFIED BY P.D. NOS. 449, 483 AND 1602 AS AMENDED BY LOI
816

PD 1602 Prescribing Stiffer Penalties on ILLEGAL GAMBLING


Under the present law, it is not skill. Whether it is skill or hazard or chance, if you bet in
prohibited games, you are liable under PD 1602. It is not chance, hazard or skill, it is betting.
Directly or indirectly taking part in any illegal or unauthorized activities. [There is a long
enumeration do not memorize!!!! Cara y cruz, black jack etc.]
ACTS IN GENERAL -Permitting any form of gambling [in the enumerated games], in inhabited or uninhabited
places or building, vessel, or means of transportation, owned or controlled by them

Games excluded from the New Gambling Law: [LOI 816]


Mahjong
Poker if not played with 5 cards
Bingo
Domino
Cuajo
Pianguingue
If played in parlor games or in house entertainment provided such games are not played in
places habitually used for gambling.
Under PD 1602, the basis for determining whether the game is gambling or not is no longer
the element of hazard or chance, instead, it is whether there is betting or not. If there is
betting, regardless of whether the element of skill outweighs the element of chance or hazard,
the game is a gambling game and therefore, the game is a crime under PD 1602.

Persons liable in gambling:


Banker,
Conductor,
Maintainer, or
Persons who directly or indirectly participate in gambling

There are gambling games but the participant therein does not incur criminal liability as long
as they participate only during those days where the gambling is legalized.

PD 483 Penalizing Betting, Game-fixing or Point-shaving and Machinations in Sports


Contests
A. Definitions
a.
Betting - betting money or any object or article of value or representative
of value upon the result of any game, races and other sports contest.

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b.
Game-fixing - any arrangement, combination, scheme or agreement by
which the result of any game, races or sports contests shall be predicted 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 game, races or sports contests to make
points or scores shall be limited deliberately in order to influence the result thereof in favor of one
or other team, player or participant therein.
d.
Game-machinations - 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 sport contest.
Distinction between game-fixing and point-shaving?
Usually in game-fixing, the whole team is involved.
But in point-shaving, only one or two may be involved.
GAME-FIXING any arrangement, combination, scheme or agreement by which the result
of any game, races or sports contests shall be predicted and/or known other than on the basis of the
honest playing skill or ability of the players or participants.
POINT-SHAVING is different
-- any such arrangement, combination, scheme or agreement by which the skill or ability of
any player or participant in a game, races or sports contests to make points or scores shall be
limited deliberately in order to influence the result thereof in favor of one or the other team, player
or participant therein.

PD 449 Cockfighting Law of 1974


This is now modified by the Local Government Code.
There are only TWO THINGS TO REMEMBER IN COCKFIGHTING!!!
When is it allowed?
When is it not allowed?
NOT ALLOWED on:
December 9
June 12
November 30
Holy Thursday
Good Friday
Election or Referendum Day
Registration Days for such election or referendum.
ALLOWED ONLY in licensed cockpits, during:
Sundays and legal holidays and
Local Fiestas
-- for not more than 3 days.
EXCEPTION:
Cockfighting for entertainment of tourists and for charitable purposes
Entertainment of foreign dignitaries or
Tourists
For returning balikbayans or
For the support of national fund-raising campaigns for charitable purposes.

Under the LGC, the law prohibits establishment of cockpits in residential, commercial or
industrial zones. Likewise prohibits the establishment of more than 1 cockpit in any 1 city or
municipality.

All (sentenciador, cristo etc) are licensed. They have Professional Tax Receipts (PTRs).

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Chapter Two
OFFENSES AGAINST DECENCY AND
GOOD CUSTOMS
ARTICLE 200
GRAVE SCANDAL
A. Elements
1. Offender performs an act or acts
2. That such acts be highly scandalous as offending decency and good customs
3. The highly scandalous conduct is not expressly falling within any other article of
this Code
4. The acts complained of be committed in a public place or within public
knowledge or view

Is a catch all provision


It is a crime of last resort because the law states:
not expressly falling within any other article of the code

Committing acts of lasciviousness inside the movie house it is grave scandal but there is
another provision punishing it.
Rape a person in public view grave scandal but there will be no separate prosecution for
grave scandal because it is already punished by another provision in the code.
Take note: In grave scandal, the crime is committed in a public place or within public
knowledge or view.

Even if you do your thing in a private place, but it was open to public view, it is grave
scandal.

NOTE: that there are also other provisions in the RPC which are catch all provisions.
In Swindling, you have Other Deceits, any other kind of deceit not falling under
any of the articles on Estafa, will be charged with Other Deceits.
Other Light Threats.
DECENCY means propriety of conduct, proper observance of the requirements of
modesty and good taste.
ARTICLE 201
IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND
INDECENT SHOWS.
A. Acts Punished (As amended by PD 960 & 969)
1. Publicly expound or proclaim doctrines openly contrary to public morals.
2. The author of obscene literature, published with their knowledge, in any form;
the
editors publishing such literature; and owners/operators of the
establishment selling
the same
3. Those who in theaters, fairs, cinematography, or other place, shall exhibit
indecent or
immoral plays, scenes, acts or shows, whether live or on film, which:
a. glorify criminals or condone crimes

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b. serve no other purpose but to satisfy the market for violence, lust or
pornography
c. offend any race or religion
d. tend to abet traffic in and use or prohibited drugs
e. contrary to law, public order, morals, good customs, established policies,
lawful
literatures

orders, decrees and edicts.


4. Those who shall sell, give away, or exhibit prints, engravings, sculptures or
which are offensive to public morals.

Mere possession of obscene literature is not punishable, it does not fall under Art. 201.
What is needed is there must be selling, publishing, distribution.
People vs. Timbungtu
The act of giving one copy only of an obscene literature is not punishable by law.
There must be habitual giving of obscene literature. This offense in any of the forms mentioned in
the article in committed only when there is publicity.
It is not the mind of one person which is being protected, it is the mind of the
public, so it needs to be many, not one only.

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculptures or
literaturewhich are offensive to morals.
The object of the law is to protect the morals of the public.
Remember: There is a special law on obscenity or obscene publication for minors (RA 7610).
RA 7610 Any person who shall hire, employ or persuade, induce or coerce a child to perform
in obscene exhibitions and indecent shows, whether live or in video, pose or model in obscene
publications or pornographic materials, or to sell or distribute the said materials, shall suffer
the penalty of prision correccional.
Take note: #2 (a) Authors of obscene literature are liable only if their articles are published
with their knowledge.

Updates in OBSCENE PUBLICATIONS (2006)


To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are
obscene; and (b) the offender sold, exhibited, published or gave away such materials. Necessarily, that the
confiscated materials are obscene must be proved.
o
Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger. 14
There the Court defined obscenity as something which is offensive to chastity, decency or delicacy. The
test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene,
is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a
publication or other article charged as being obscene may fall. 15 Another test according to Kottinger is
"that which shocks the ordinary and common sense of men as an indecency." 16 But, Kottinger hastened
to say that whether a picture is obscene or indecent must depend upon the circumstances of the case,
and that ultimately, the question is to be decided by the judgment of the aggregate sense of the
community reached by it. 17
o
Thereafter, the Court in People v. Go Pin 18 and People v. Padan y Alova, et al., 19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw
the fine lines of obscenity.
o
In People v. Go Pin, the Court said:
o
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for art's sake but rather for commercial
purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so
that the cause of art was of secondary or minor importance. Gain and profit would appear to have been
the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who generally go to art exhibitions and galleries to

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satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity
and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity
are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.
o
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of
"redeeming feature." The Court therein said that:
o
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming
feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. 21
o
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak, 22 involving motion pictures, still
applied the "contemporary community standards" of Kottinger but departed from the rulings of
Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant
theme" of the material taken as a "whole" rather than in isolated passages.
o
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized
that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the absence or presence of artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether
such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too much latitude for judicial
arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is
obscene or what is art. 24
o
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence
is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the
dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to
wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It seems futile at
this point to formulate a perfect definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established
basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the
work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as
a whole, lacks serious literary, artistic, political, or scientific value. 26 But, it would be a serious misreading of
Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive."
27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials
depict or describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently offensive
representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently
offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the
genitals. 29 What remains clear is that obscenity is an issue proper for judicial determination and should be
treated on a case to case basis and on the judge's sound discretion.

ARTICLE 202
VAGRANTS AND PROSTITUTES
NOTA BENE:
The following are vagrants:
1. any person having no apparent means of subsistence, who has the physical ability
to work and who neglects to apply himself of herself to a lawful calling
2. any person found loitering about public or semipublic buildings or places, or tramping
or wandering about the country or the streets without visible means or support
3. any idle or dissolute person who lodges in houses of ill-fame; ruffians and pimps and
those habitually associates with prostitutes
4. any person who not being included in the provisions of the other articles of this code,
shall be found loitering in any inhabited or uninhabited place belonging to another
without any lawful or justifiable purpose
5. prostitutes
*For this purpose, women who, for profit or money, habitually indulge in sexual
intercourse or lascivious conduct, are deemed prostitutes.

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Article 202
Vagrants and prostitutes

RA 7610 as amended
Child abuse act

In prostitution, the crime can only be


committed by a woman

Can be committed by children whether male


or female

THERE IS HABITUALITY
The woman is of age
For money or profit

Even if committed once, offender is liable


Still a child or minor
For money, profit or any other consideration,
or due to coercion of any adult or syndicate
or group

ANTI-MENDICANCY LAW (PD 1563)


This special law has been modified in part by RA 7610 with respect to children
Any person who has no visible and legal means of support, or lawful employment and who
is physically able to work but neglects to apply himself to some lawful calling and instead uses
begging as a means of living is a MENDICANT.
There is also a crime known as abetting mendicancy = giving alms directly to mendicants, exploited
minors or infants on public roads, sidewalks, parks.
So that if you give alms to mendicants in your house, you will not be liable for abetting
mendicancy.

TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS

Chapter One
PRELIMINARY PROVISIONS
ARTICLE 203
WHO ARE PUBLIC OFFICERS
Any person who, by direct provision of the law, popular election of appointment
by competent authority, shall take part in the performance of public functions in the government,
or shall perform in said government or any of its branches PUBLIC DUTIES as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed as public officers.
Public officers and employees are defined in several laws.
1. Revised Penal Code (this article)

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2. RA 3019 (ANTI GRAFT AND CORRUPTION PRACTICES ACT)


"Public officer" includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the government as defined in the preceding
subparagraph.
3. RA 6713 (CODE OF CONDUCT)
"Public Officials" includes elective and appointive officials and employees,
permanent or temporary, whether in the career or non-career service, including military
and police personnel, whether or not they receive compensation, regardless of amount.
4. RA 1379 (UNEXPLAINED WEALTH LAW)
"Public officer or employee" means any person holding any public office or
employment by virtue of an appointment, election or contract, and any person holding
any office or employment, by appointment or contract, in any State owned or controlled
corporation or enterprise.
5. RA 7080 (PLUNDER ACT)
Public Officer means any person holding any public office in the Government of the
Republic of the Philippines by virtue of an appointment, election or contract.
Originally, Title VII used the phrase public officer or employee but the latter word has
been held meaningless and useless because in criminal law, public officer covers all
public servants, whether an official or an employee, from the highest to the lowest
position regardless of rank or class; whether appointed by competent authority or by
popular election or by direct provision of law.
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.
Breach of oath of office partakes of three forms:
(1)

Malfeasance - when a public officer performs in his public office an act


prohibited by law.
Example: bribery.

(2)

Misfeasance - when a public officer performs official acts in the manner not in
accordance with what the law prescribes.

(3)
Nonfeasance - when a public officer willfully refrains or refuses to perform an
official duty which his office requires him to perform.

Chapter Two
MALFEASANCE AND MISFEASANCE IN OFFICE
Section One. Dereliction of duty
ARTICLE 204
KNOWINGLY RENDERING UNJUST JUDGEMENT
A. ELEMENTS

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1.
2.
3.
4.

Offender is a Judge
Renders a judgment in a case submitted to him for decision.
The judgment is unjust.
Judge knows that it is unjust.

NOTA BENE:
In Re: Joaquin Borromeo, A.M. No. 937696-0. February 21, 1995.
A judge cannot be charged with knowingly rendering unjust judgement if there is
a pending appeal or the judgement is not yet final.
Take note of the word KNOWINGLY when done deliberately and maliciously.
(very important).
This crime cannot be committed by any member of a collegiate court like COURT OF
APPEALS, SANDIGANBAYAN, SUPREME COURT. This is only applicable to a single judge court.
In Re: Wenceslao Laureta
G.R. No. 68635. March 12, 1987
"Respondents should know that the provisions of Article 204 of the Revised Penal
Code as to "rendering knowingly unjust judgment," refer to an individual judge who does
so "in any case submitted to him for decision" and even then, it is not the prosecutor who
would pass judgment on the "unjustness" of the decision rendered by him but the proper
appellate court with jurisdiction to review the same, either the Court of Appeals and/or
the Supreme Court. Respondents should likewise know that said penal article has no
application to the members of a collegiate court such as this Court or its Divisions who
reach their conclusions in consultation and accordingly render their collective judgment
after due deliberation. It also follows, consequently, that a charge of violation of the AntiGraft and Corrupt Practices Act on the ground that such collective decision is "unjust"
cannot prosper.
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.
There is more injustice done in cases of judgment than mere interlocutory order that is
why the penalty is higher in the first case.
ARTICLE 205
JUDGEMENT RENDERED THROUGH NEGLIGENCE
A. ELEMENTS
1. Offender is a Judge
2. Renders a judgment in a case submitted before him
3. The judgment is manifestly unjust.
4. That it is due to inexcusable negligence or ignorance.

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Any JUDGE who by reason of inexcusable negligence or ignorance, shall render a


manifestly unjust judgement in any case submitted to him for decision shall be held liable under
this article.
manifestly unjust judgement: MANIFESTLY contrary to law, that even a person of meager
knowledge of the law cannot doubt the injustice.
ARTICLE 206
UNJUST INTERLOCUTORY ORDER
A. Elements
1. Offender is a Judge
2. He performs the following acts
a. knowingly renders an unjust interlocutory order or decree.
b. Renders a manifestly unjust interlocutory order or decree through
inexcusable
negligence or ignorance.
Any JUDGE who shall knowingly render an unjust interlocutory order or decree shall be
liable under this article.
However, if the said Judge shall have acted By reason of inexcusable negligence or
ignorance and the interlocutory order or decree be manifestly unjust, he shall suffer the penalty of
suspension.
A final judgement is one that is subject to an execution
An interlocutory order, there is still something to be done still with the case.
Example: Preliminary Attachment. There are grounds to be observed to take into account
before a writ of preliminary attachment can be ordered. If the judge, despite absence of any
grounds issues the writ, then he is liable under article 206.
Other examples: recovery of property with injunction, TRO
ARTICLE 207
MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE
A. Elements
1. Offender is a judge
2. There is a proceeding in the court
3. Delays the administration of justice
4. Delay is malicious, that is, the delay is caused by the Judge with deliberate
intent to
inflict damage on either party in the case.
Delay should be malicious. Delay is tainted with malice when calculated to cause harm or injury to
persons or either party in the case..
Mere delay WITHOUT malice not necessarily punishable
ARTICLE 208
PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE
A. Acts Punished
1. Maliciously refraining from instituting prosecution against violators of law.
2. Maliciously tolerating the commission of offense.

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B. Elements
1. Offender is a public officer or officer of the law, who has the duty to cause the
prosecution of, or to prosecute offenses.
2. Knowing the commission of the crime, he does not prosecute the criminal or
knowing that a crime is about to be committed tolerates its commission.
3. Offender acts with malice and deliberate intent to favor the violator of the law.
Any public officer or officers of the law, who, in dereliction of the duties to his office, shall
maliciously refrain from instituting prosecution for the punishment of the violators of the law, or
shall tolerate the commission of offenses.
Read case U.S. vs. Mendoza: The issue on guilt or the violation of the law is a prejudicial
question and shall or must be established first prior to or before the prosecution.
NOTA BENE:
Mistaken notion of some lawyers --- they believe that the public officer liable is a policeman
NO. only public prosecutors are liable. It is not the task of a policeman or police officer to
prosecute, okay? So for instance, if a policeman caught a snatcher upon compliant of the victim,
after the victim has left the scene, the policeman freed the snatcher. The policeman is not liable for
violation of article 208 BUT he can be liable as an accessory to the crime of theft or robbery as the
case may be.
Offenders here:
1. public officers or
2. officers of the law
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.
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.

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.

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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.
Prevaricacion
This used to be a crime under the Spanish Codigo Penal, wherein a public officer
regardless of his duty violates the oath of his office by not carrying out the duties of his
office for which he was sworn to office, thus, amounting to dereliction of duty.
But the term prevaricacion is not limited to dereliction of duty in the prosecution of
offenders. It covers any dereliction of duty whereby the public officer involved violates
his oath of office. The thrust of prevaricacion is the breach of the oath of office by the
public officer who does an act in relation to his official duties.
While in Article 208, dereliction of duty refers only to prosecuting officers, the term
prevaricacion applies to public officers in general who is remiss or who is maliciously
refraining from exercising the duties of his office.
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.
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

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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 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 OF SOLICITOR REVELATION OF
SECRETS
A. Acts punished:
Here, there must be damage to his
1. by causing damage to his client, either
client
a. by any malicious breach of professional duty
b. by inexcusable negligence or ignorance
2. by revealing any of the secrets of his client learned by him in his professional capacity
note: damage here is not necessary

3. by undertaking the defense of the opposing party in the same case, without the consent of his
first
client, after having undertaken the defense of the said first client or after having received
confidential
information from said client.
B. Elements
1. Offender is an attorney
2. Causes damage to his client
a) by malicious breach of professional duty.
b) by inexcusable negligence or ignorance
3. Revealing the secret of his client learned by him (damage is not necessary)

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consent of
after received

4. Undertaking the defense of the opposing party in the same case, without the
his first client, after having undertaken the defense of the first client or
confidential information from the said client.

NOTA BENE:
In addition to the criminal liability, he can also be held administratively like suspension
from the practice of law
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 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;

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(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 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.
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 consideration 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

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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.
Section Two. Bribery
ARTICLE 210
DIRECT BRIBERY
A. Acts punished:
1. AGREEING TO PERFORM, or by PERFORMING, in consideration of any offer,
promise,
gift or present an act constituting a crime, IN CONNECTION WITH THE
PERFORMANCE OF THE public officers DUTY;
2. ACCEPTING a gift in consideration of the execution of an act which does not
constitute a
crime, in connection with the performance of his duty;
3. AGREEING TO REFRAIN, or by REFRAINING, from doing something which
it is his official duty to do, in consideration of a gift or promise
B. Elements
1. Offender is a public officer
2. Accepts an offer or a promise or receives gifts or present by himself or through
another.
3. The offender was accepted in view of committing some crime,
- in consideration of the execution of an act which does not constitute a
crime, but
the act must be unjust.
- refrain from doing which it is his official duty to do so
4. The act which the offender agrees to perform must be connected with the
performance
of his official duties.
NOTA BENE:
Bribery cannot be complexed with and cannot be absorbed by other crimes, as the penalty
of bribery is imposed as an addition to the penalties imposed with other crimes.
Nota bene:
There is no specific crime of extortion under the RPC. But there are crimes with the
character of extortion like robbery, kidnapping, blackmail, grave or light threats. They are in the
nature of extortion.
There must be CONSIDERATION in the three acts punished because it is the consideration that
makes it a crime. it is however necessary that the consideration be ACTUALLY DELIVERED and/or
ACTUALLY RECEIVED by the public officer involved.
2 persons involved:
a. the corruptor or giver
b. the receiver or public officer( remember that the acceptance must be in consideration or in relation
his office.)

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*IF THE ACT TO BE PERFORMED IS A CRIME, The moment that the agreement is definitely
arrived at, bribery is committed. Mere agreement (mutuality of thinking) consummates the
crime of bribery because even the REFRAINing itself is punishable as a crime. WHY?
Because as long as there is mutuality of thinking, there is even no need for the actual delivery of the
consideration as long as the act to be performed is a crime.
*BUT IF THE ACT TO BE PERFORMED DOES NOT CONSTITUTE A CRIME, even if an
agreement is made, there is no conspiracy, and so there is no subject for the bribery, unless the
giver has actually delivered the consideration and the public officer already executed the act (so
here, there must be execution because without execution of either side, you have no evidence of the
crime of bribery)
bribery is a crime from the viewpoint of the receiver or public officer; it is corruption of
public official on the part of the corruptor or giver.
Direct bribery
Direct bribery is socalled because the
consideration or gift or present is precisely for
the act to be committed or which the public
officer shall refrain to commit.
There is agreement
The offender public officer agrees to perform or
performs an act or refrains from doing
something because of the gift or promise

Indirect bribery
In indirect bribery the consideration , gift, or
present is given not because of an act to be
performed or which he which he should refrain
from performing, rather it is given by reason
of the of the office held by such public officer
The corruptor simply gives without prior
agreement
It is not necessary that the offender should do
any act or particular act or even promise to do
an act because it is enough that he accepts
gifts offered to him by reason of his
office.

Q: is there a distinction between bribery and robbery?


A: Illustration:
A policeman went inside the store and found out that the store owner sells liquor without
license. He said to the owner that if you will not give me 5 rims of cigarettes or two long-necked
bottles of tanduay rum, I will arrest you. so the owner gave him. Is this bribery? NO! the crime is
ROBBERY. There is a mistaken notion that robbery can only be committed with the use of a
weapon either pistol, knife or any weapon. The essence of robbery is that due to force or
intimidation, the offended party delivers because of the force and intimidation.
So the distinction therefore is that in bribery, the gift or present or consideration is
VOLUNTARILY GIVEN. In robbery, there is violence or intimidation. Read People vs.

Francisco 45 phil 819


Q: is there frustrated bribery?
A: NONE. It is either attempted or consummated.
It is not bribery if the act done is in discharge of a MORAL DUTY.
Q: what is PREVARICACION?
A: similar with the 3rd act punished in direct bribery
The third form of direct bribery is committed by refraining from doing something which
pertains to the official duty of the officer. PREVARICACION (article 208) is committed the same
way. In this regard, the two felonies are similar. But they differ in that BRIBERY the offender
refrained form doing his official duty in consideration of a gift received or promised. This

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element is not necessary in the crime of prevaricacion (the element of consideration is not so
important in this crime)
It is a common notion that when you talk of bribery, you refer to the one corrupting the
public officer. Invariably, the act refers to the giver, but this is wrong. Bribery refers to
the act of the receiver and the act of the giver is corruption of public official.
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.
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.

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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 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.

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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 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.

Updates in BRIBERY
A comparison of the elements of the crime of direct bribery defined and punished under Article 210 of the Revised
Penal Code and those of violation of Section 3 (b) of RA 3019 shows that there is neither identity nor necessary
inclusion between the two offenses.
Section 3 (b) of RA 3019 provides:
Sec. 3. In addition to acts or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are hereby declared unlawful:
xxx
xxx
xxx
(b) Directly or indirectly requesting or receiving any gift, present, share percentage or benefit, for
himself or for any other person, in connection with any contract or transaction between the Government and any
other party, wherein the public officer in his official capacity has to intervene under the law.
xxx
xxx
xxx
The elements of the crime penalized under Section 3 (b) of RA 3019 are:
(1)
the offender is a public officer;
(2)
he requested or received a gift, present, share, percentage or benefit;

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(3)
he made the request or receipt on behalf of the offender or any other person;
(4)
the request or receipt was made in connection with a contract or transaction with the government and
(5)
the has the right to intervene, in an official capacity under the law, in connection with a contract or
transaction has the right to intervene.
On the other hand, direct bribery has the following essential elements:
(1)
the offender is a public officer;
(2)
the offender accepts an offer or promise or receives a gift or present by himself or through another;
(3)
such offer or promise be accepted or gift or present be received by the public officer with a view to
committing some crime, or in consideration of the execution of an act which does not constitute a crime but the
act must be unjust, or to refrain from doing something which it is his official duty to do and
(4)
the act which the offender agrees to perform or which he executes is connected with the performance
of his official duties.
Clearly, the violation of Section 3 (b) of RA 3019 is neither identical nor necessarily inclusive of direct
bribery. While they have common elements, not all the essential elements of one offense are included
among or form part of those enumerated in the other. Whereas the mere request or demand of a gift,
present, share, percentage or benefit is enough to constitute a violation of Section 3 (b) of RA 3019,
acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover,
the ambit of Section 3 (b) of RA 3019 is specific. It is limited only to contracts or transactions involving
monetary consideration where the public officer has the authority to intervene under the law. Direct
bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a
crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or
refraining from doing an act which is his official duty to do.
Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two
separate and distinct offenses. No double jeopardy attached since there was a variance between the elements of
the offenses charged. 33 The constitutional protection against double jeopardy proceeds from a second
prosecution for the same offense, not for a different one.
o

By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of Public Officials) of the
Revised Penal Code. In Direct Bribery, the public officer agrees to perform an act either constituting or not
constituting a crime, in consideration of any offer, promise, gift or present received by such officer. Significantly,
only the public officer may be indicted under and be held liable for Direct Bribery under Article 210, while the
person who conspired with the public officer, who made the promise, offer, or gave the gifts or presents, may be
indicted only under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.
o
Indeed, it is axiomatic that all conspirators are criminally liable as co-principals. However, they may not
be necessarily charged with violation of the same offense. The public officer may be charged under one
provision while the private person is indicted under a different provision, although the offenses originate
from the same set of acts. Thus, the public officer may be accused of Direct Bribery while the private
person may be charged with corruption of public officials.
The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements:
(1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer
or promise; (3) that such gift, present or promise has been given in consideration of his commission of some
crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do;
and (4) that the crime or act relates to the exercise of his functions as a public officer. Thus, the acts constituting
direct bribery are: (1) by agreeing to perform, or by performing, in consideration of any offer, promise, gift or
present an act constituting a crime, in connection with the performance of his official duties; (2) by accepting a
gift in consideration of the execution of an act which does not constitute a crime, in connection with the
performance of his official duty; or (3) by agreeing to refrain, or by refraining, from doing something which is his
official duty to do, in consideration of any gift or promise.
o
In the case under consideration, there is utter lack of evidence adduced by the prosecution showing that
petitioner committed any of the three acts constituting direct bribery. The two prosecution witnesses
did not mention anything about petitioner asking for something in exchange for his performance of, or
abstaining to perform, an act in connection with his official duty. In fact, Atty. Aurora Chiong, VicePresident and General Manager of the Company, testified that the Company complied with all the
requirements of the LTO without asking for any intervention from petitioner or from anybody else from
said office. 26 From the evidence on record, petitioner cannot likewise be convicted of Direct Bribery.

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The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements:
(1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer
or promise; (3) that such gift, present or promise has been given in consideration of his commission of some
crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do;
and (4) that the crime or act relates to the exercise of his functions as a public officer.
o
There is no question that petitioner was a public officer within the contemplation of Article 203 of the
Revised Penal Code, which includes all persons "who, by direct provision of law, popular election or
appointment by competent authority, shall take part in the performance of public functions in the
Philippine Government, or shall perform in said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class." At the time of the incident, petitioner was
a police sergeant assigned to the Legazpi City Police Station. He directly received the bribe money from
Yu So Pong and his daughter Hian Hian Yu Sy in exchange for the recovery of the stolen cylinder tanks,
which was an act not constituting a crime within the meaning of Article 210 of the Revised Penal Code.
The act of receiving money was connected with his duty as a police officer.

ARTICLE 211
INDIRECT BRIBERY
A. Elements
1. The offender is a public officer
2. Accepts gifts
3. The gifts are offered to him by reason of his office
Any public officer who shall accept gifts offered to him BY REASON of his office shall be
liable for indirect bribery.
NOTA BENE:
This crime is always consummated.
This is quite dangerous.
Illustration: you are a commissioner of customs, somebody went inside your office and place
something (gift) on you table. He then went out. QUERY: Was there indirect bribery? ANSWER:
No! There is no intention to accept, or there is no clear acceptance to show signs of making his own
the gift given or left by the person.
FORMILLEZA vs. SANDIGANBAYAN and PEOPLE
G.R. No. L-75160. March 18, 1988
ACCEPTANCE OF GIFT OR CONSIDERATION, ESSENTIAL INGREDIENT.
The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal Code is
that the public officer concerned must have accepted the gift or material consideration. There
must be a clear intention on the part of the public officer to take the gift so offered and
consider the same as his own property from then on, such as putting away the gift for
safekeeping or pocketing the same. Mere physical receipt unaccompanied by any other sign,
circumstance or act to show that the crime of indirect bribery has been committed. To hold
otherwise will encourage unscrupulous individuals to frame up public officers by simply putting
within their physical custody some gift money or other property. (otherwise there is a danger of
being framed up)

Sometimes, indirect bribery may be converted to direct bribery. Illustration: there is a person who
delivers a fleet of taxi to a transportation office officer. When he knew about it, he said, okay,
prepare his license and all necessary requirements that he need. Here, it is already direct bribery.
THERE IS A SPECIAL LAW:

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PD 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF BRIBES AND OTHER GIFTS AND TO THEIR
ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST PUBLIC OFFICERS.

Reason: who will testify if no immunity? Remember that bribery is done secretly. Only the giver can
testify man. So PD 749 was decreed.
Conditions:
1. the information must refer to consummated violations/bribery.
2. The information and testimony are necessary for conviction
3. The information and testimony are not yet in the possession of the state
4. Can be corroborated in each material points ( aside from the bribe giver there should be
another witness who should corroborate the formers testimony)
5. The informant has not been previously convicted of the crime involving moral turpitude like
theft, estafa, robbery
The public official does not undertake to perform an act or abstain from doing an
official duty from what he received. Instead, the official simply receives or accepts
gifts or presents delivered to him with no other reason except his office or public
position. This is always in the consummated stage. There is no attempted much less
frustrated stage in indirect bribery.
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.

Updates in INDIRECT BRIBERY


Indirect bribery is committed by a public officer who shall accept gifts offered to him by reason of his office. The
essential ingredient of indirect bribery as defined in Article 211 27 of the Revised Penal Code is that the public
officer concerned must have accepted the gift or material consideration. In the case at bar, was the prosecution
able to show that petitioner indeed accepted a gift from the Company? The alleged borrowing of a vehicle by
petitioner from the Company can be considered as the gift in contemplation of the law. To prove that petitioner
borrowed a vehicle from the Company for 56 times, the prosecution adduced in evidence 56 delivery receipts 28
allegedly signed by petitioner's representative whom the latter would send to pick up the vehicle.
o
The prosecution was not able to show with moral certainty that petitioner truly borrowed and received
the vehicles subject matter of the 56 informations. The prosecution claims that petitioner received the
vehicles via his representatives to whom the vehicles were released. The prosecution relies heavily on
the delivery receipts. We, however, find that the delivery receipts do not sufficiently prove that
petitioner received the vehicles considering that his signatures do not appear therein. In addition, the
prosecution failed to establish that it was petitioner's representatives who picked up the vehicles. The
acquittal of one of the accused (Nery Tagupa) who allegedly received the vehicles from the Company
further strengthens this argument. If the identity of the person who allegedly picked up the vehicle on
behalf of the petitioner is uncertain, there can also be no certainty that it was petitioner who received
the vehicles in the end.

ARTICLE 211-A
QUALIFIED BRIBERY (added by RA 7659)
A. Elements
1. Any public officer entrusted with law enforcement
2. Refrains from arresting or prosecuting an offender who has committed a crime
punishable by RP and or death
3. In consideration of any

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- offer
- promise
- gift or
- present
* Public officer shall suffer the penalty for the offense which was not prosecuted.
* If it is the public officer who asks or demands such gifts or present, he shall suffer the
penalty of death.
If any 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 he was not prosecuted.
If it is a public officer who asks or demands such gift or present, he shall suffer the penalty
of death. (in this 2nd paragraph, the imposition of death penalty is mandatory)
A crime punishable by reclusion perpetua and/or death!!!
2 officers punished:
1. law enforcement officers
2. public prosecutors
ARTICLE 212
CORRUPTION OF PUBLIC OFFICIALS
A. Elements
1. The officer makes an offer or promise or gives gifts to a public officer
2. That the offer or promises are made or the gifts are given to a public officer,
under the
circumstances that will make the public officer liable for direct bribery
or indirect bribery.
Any person who shall have made the offers or promises or given the gifts or presents as
describes in articles 210 (direct bribery), 211 (indirect bribery) and 211-A (qualified bribery) shall
be liable under this article.
Read PRESIDENTIAL DECREE NO. 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF
BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST
PUBLIC OFFICERS

Also Read REPUBLIC ACT NO. 3019,

ANTI-GRAFT AND CORRUPT PRACTICES ACT

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.

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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;

(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 information 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

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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;

(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.
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act)
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.

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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, SubSection 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:
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.
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.

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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 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

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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 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.

Chapter Three
FRAUDS AND ILLEGAL EXACTIONS AND
TRANSACTIONS
ARTICLE 213
FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES
A. Elements of FRAUDS AGAINST PUBLIC TREASURY:
1. Offender is a public officer
2. that he should have taken advantage of his office, that is, he intervened in the
transaction in his official capacity
3. that he entered into an agreement with any interested party or speculator or
made use of
any other scheme with regard to
a. furnishing supplies
b. the making of contracts

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c. the adjustment or settlements of accounts relating to public property or


funds
4. the accused had intent 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.
Illustrations:
(1)

A public official who is in charge of procuring supplies for the government


obtained funds for the first class materials and buys inferior quality products
and pockets the excess of the funds. This is usually committed by the officials
of the Department of Public Works and Highways.

(2)

Poorest quality of ink paid as if it were of superior quality.

(3)

One thousand pieces of blanket for certain unit of the Armed Forces of the
Philippines were paid for but actually, only 100 pieces were bought.

(4)

The Quezon City government ordered 10,000 but what was delivered was only
1,000 T-shirts, the public treasury is defrauded because the government is
made to pay that which is not due or for a higher price.

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 the 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.
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.
B. Elements of ILLEGAL EXACTIONS:
1. Offender is a public officer ENTRUSTED with the collection of taxes, licenses,
fees, and
other imposts
2. He is guilty of any of the following acts or omissions:

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a. demanding, directly or indirectly, the payment of sums different from or


larger
than those authorized by law
b. failing voluntarily to issue a receipt, as provided by law, for any sum of
money
collected by him officially
c. Collecting or receiving, directly or indirectly, by way of payment or
otherwise,
things or objects of a nature different form that provided by law.
The public officer referred to here is one who is or has an official duty to collect fees due to the
government.
Illustration:
If a treasurer in a municipality fails to issue an official receipt because they ran out of
receipt so he instead issues a temporary receipt HE IS NOT LIABLE under this article
PROVIDED he will issue an official receipt later.
If he receives money for tax payments and issues another receipt in his own form then he is
guilty of illegal exaction.
Reason for issuance of a receipt:
- this is because the collection of public officers can only be accounted for thru official
receipts that they issued.
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.
Also, public officers with such functions but are in the service of the Bureau of Internal
Revenue and the Bureau of Customs are not to be prosecuted under the Revised Penal
Code but under the Revised Administrative Code. 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.
This provision of the Revised Penal Code was provided before the Bureau of Internal
Revenue and the Tariff and Customs Code. Now, we have specific Code which will
apply to them. In the absence of any provision applicable, the Revised Administrative
Code will apply.
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.
On the first form of illegal exaction

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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.
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.
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 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:

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(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 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:

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(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.
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.)

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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.
ARTICLE 214
OTHER FRAUDS
A. Elements:
1. that the offender is a public officer
2. that he takes advantage of his official position
3. that he commits any of the frauds or deceits enumerated in articles 315-318
A public officer takes advantage of his official position in committing:
1. estafa
2. other forms of swindling
3. swindling a minor
4. other deceits

ARTICLE 215
PROHIBITED TRANSACTIONS
A. Elements:
1. that the offender is an appointive public official
2. that he becomes interested, directly or indirectly, in any transactions of
exchange or speculations
3. that the transaction takes place within the territory subject to his jurisdiction
4. That he becomes interested in the transaction during his incumbency.
NOTA BENE:
Applicable only to appointed public officers
Transactions are limited to exchange or speculations. Purchasing of stocks or shares therefore is
not covered here, hence not punishable.

ARTICLE 216
POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER
A. Persons Liable for the possession of prohibited interest:
1. public officer who directly or indirectly became interested in any contract or
business in which it was his official duty to intervene
2. experts, arbitrators and private accountants who, in like manner, took part in
any contract or transactions connected with the estate or property in the
appraisal, distribution or adjudication of which they had acted.
3. Guardians and executors with respect to the property belonging to their wards
or the estate.

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Public officer here is appointed or elected


RA 7080
AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER
= Ill gotten wealth amounts to 50,000,000.00 and above to come under this provision.
= liable: may be a public officer or any private person who conspires with the public officer.
Note:
Q: If there is plunder and malversation how many informations should you file?
A: only 1 because of section 1 (d) any combination or series of the following schemes:
1-6 ( judge believes that the crime of malversation is absorbed in plunder)
RA 1379
AN ACT DECLARING FORFEITURE IN FAVOROF THE STATE ANY PROPERTY
FOUND
TO HAVE BEEN UNLAWFULLY ACQUIRED(UNEXPLAINED WEALTH)
Remember this is not a criminal prosecution, this is an administrative proceeding. There is
no penal sanction . there is a penalty but involving a past act.
RA 1379 creates a presumption JURIS TANTUM against unexplained wealth of public
officers and employees. See case in point below:
Republic vs IAC and Simplicio Berdon
G.R. No. 74225. April 17, 1989
The Court has carefully gone over the evidence presented by private respondents,
and like the trial court and the Intermediate Appellate Court, finds the acquisition of the
subject properties satisfactorily explained.
While respondent spouses had acquired properties and constructed a house the
costs of which were disproportionate to their combined incomes from their employment
in the government, it had been proved that such were financed through a donation and
loans.
The Solicitor General also makes much of the fact that the statements of assets and
liabilities filed by private respondent Simplicio Berdon covering the years material to the
case did not accurately reflect the donation and the loans granted to private respondent
spouses and that Simplicio's testimony in effect contradicts the entries in said
statements. It must be emphasized, however, that in determining whether or not there is
unexplained wealth within the purview of R.A. No. 1379 the courts are not bound by the
statements of assets and liabilities filed by the respondent.* On the contrary, this statute
affords the respondent every opportunity to explain, to the satisfaction of the court, how
he had acquired the property in question [Sec. 5, R.A. No. 1379.]
In sum, the presumption under Sec. 2 of R.A. No. 1379 that the subject properties
were unlawfully acquired had been successfully rebutted by private respondents through
competent evidence. Hence, the Intermediate Appellate Court did not err in affirming
the trial court's decision dismissing the Republic's petition.
The provisions of the law creates a presumption against the public officer or
employee who acquires a property grossly disproportionate to his income, i.e. that the
property was unlawfully acquired. However, this presumption is juris tantum. It may be
rebutted by the public officer or employee by showing to the satisfaction of the court that
his acquisition of the property was lawful.

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Chapter Four
MALVERSATION OF PUBLIC FUNDS
OR PROPERTY
ARTICLE 217
MALVERSATION OF PUBLIC FUNDS OR PROPERTY
A. ELEMENTS:
1. Offender: Public officer (PO)
2. PO had the custody or control of funds or property by reason of the duties of his
office
3. Funds or property were PUBLIC for which he was accountable
4. That the PO:
a. appropriated
b. took or misappropriated
c. consented or, through abandonment or negligence, permitted another
person to
take them
B. Acts Punished
1. By appropriating public funds or property
2. Taking or misappropriating the same
3. Consenting, or through abandonment or negligence by permitting any person to
such public funds or property.
4. By otherwise being guilty of misappropriation or malversation of such funds or

take
property.

Committed by Any public officer who, by reason of the duties of his office is accountable for
public funds or property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any other person to take such public
funds or property, wholly or partially or shall otherwise be guilty of misappropriation or
malversation of such funds or property.
So the public officer is an accountable public officer.
Q: what are the crimes called MALVERSATION OF PUBLIC FUNDS OR PROPERTY?
A: they are:
1. malversation by appropriating, misappropriating or permitting any other person to
take public funds or property (art 217)
2. failure of accountable officer to render accounts (art 218)
3. failure of a responsible public officer to render accounts before leaving the country (art
219)
4. illegal use of public funds or property (art 220)
5.

(also called as TECHNICAL MALVERSATION)

failure to make delivery of public funds or property (art 221)

Two Modes of Commiting Malversation:


1. through deliberate acts
2. through negligence
N.B.

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But whether deliberate or through negligence -- the penalty is the same.


Malversation is otherwise called as EMBEZZLEMENT.
Profit or Gain is immaterial in malversation
PRESUMTPION OF MALVERSATION
When failure of PO (in custody of the public funds or property) fails to produce the public
funds or property upon demand, the presumption is that the PO malversed such property or fund.
The accountable PO may be convicted of malversation even if there is no direct evidence in
misappropriation and the only evidence is a shortage in his accounts which he has not been able to
explain satisfactorily. (People v Mingoa, 92 Phil 856)
CASE:
PRESUMPTION OF GUILT REBUTTED ONCE SHORTGAGE IS SATISFACTORILY
EXPLAINED
PALMA GIL and PELAYO vs. PEOPLE
G.R. No. 73642. September 1, 1989
The mayor satisfactorily explained that the donated logs were disposed of to
construct municipal projects. Hence, it was incumbent upon the prosecution to prove
otherwise This, it failed to do. There is absolutely no showing that the petitioners sold the
excess lumber or used it for private purposes or otherwise profited from the same. On the
contrary, he fully accounted for the lumber because the municipal projects where it was
used were actually constructed.
It is true that all that is needed to find a public officer guilty of malversation is a
failure to produce funds or property for which he is accountable, on demand. However, if
the funds or property were validly used for public purposes naturally they can no longer be
produced. There being a satisfactory explanation of the shortage, the presumption of guilt
disappears.
WHO MAY COMMIT:
General Rule:
Accountable Public Officer
Must be an accountable PO, otherwise the crime is something else.
CASE:
BABIDA vs PEOPLE and SANDIGANBAYAN
G.R. No. 83946. September 29, 1989
The undisputed fact is that the City Auditor had found the accused short, as of
September 16, 1986, of the sum of P69,721.64, a sum the latter could not or failed to return
upon due demand. The latter's excuse, however, is that on the same date, September 16,
1986, on her way to deposit the money with the Development Bank of the Philippines, the
same was purportedly stolen. According to her, she did not inform the City Auditor of it
(the fact of robbery) on the spot (she submitted her explanation only on October 1, 1986),
because she was supposedly consulting her lawyer. Also, so she claims, she was
hospitalized on September 18, 1986, and discharged on September 21, 1986.
SC convicted her of malversation.

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Exception:
a. private individuals who in any capacity whatever, have charge of any national,
provincial or municipal funds, revenues, or property; (Art 222)
b. any administrator or depository of funds or property attached, seized or
deposited by public authority, even if such property belongs to a private individual; (Art
222)
c. private party is either a principal by direct participation or principal by
indispensable cooperation.
d. Private party is in conspiracy with the PO in committing the crime.
- A private person INDUCING a public officer or by necessary act, AIDS a
public officer in CONSENTING OR PERMITTING such public funds to fall
into the hands of the SWINDLER ---- he must be held EQUALLY LIABLE for
MALVERSATION as principal by induction.
PUBLIC FUNDS OR PROPERTY
Return of funds or property by the accused several days after demand does not negate criminal
liability but mitigates the crime.
Example Cases:
Police man arrested a person for illegal possession of firearm. PO did not surrender the
confiscated firearm but pocketed the same. PO in custody of the firearm is, in effect, accountable to
the Government for it is now considered public property. PO can be charged with malversation.
However, in SALAMERA vs. SANDIGANBAYAN, a licensed firearm was deposited for
safekeeping with the mayor. Said firearm was lost. PO, in this case is not guilty of malversation
because the licensed gun is not public property but still remained private property.
SALAMERA vs. SANDIGANBAYAN
G.R. No. 121099. February 17, 1999
One essential element of the crime of malversation is that a public officer must take
public funds, money or property, and misappropriate it to his own private use or benefit.
There must be asportation of public funds or property, akin to the taking of another's
property in theft. The funds, money or property taken must be public funds or private
funds impressed with public attributes or character for which the public officer is
accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith
& Wesson revolver, to petitioner mayor of the town of Casiguran, Aurora. Antonio
surrendered the gun to the mayor. The gun was duly licensed. It was not seized or
confiscated. Antonio obtained possession of the gun from Ponciano Benavidez, an uncle
of his, who was the owner and licensee of the gun. Ponciano mortgaged it to Antonio.
The question may be asked: Did Antonio's surrender of the gun to petitioner mayor
invest the gun with public character sufficient to consider the gun as public property for
which the mayor is accountable? We believe not. There was no reason to surrender or
confiscate the gun. It was duly licensed to Ponciano Benavidez. The license is not
transferable. Antonio could not validly possess the gun. He should have returned the gun
to Ponciano, the licensed owner or surrendered it to the local police or to the
Constabulary Provincial Commander. By turning over the gun to petitioner mayor, the
gun did not become public property because it was not intended for public use or
purpose nor was it lawfully seized. The gun continued to be private property, that is why
the gun owner rightfully asked for its return to him, not to be turned over to the public
coffer or treasury. Petitioner's failure to return the gun after demand by the private

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owner did not constitute a prima facie evidence of malversation. The property was
private and the one who demanded its return was a private person, not a person in
authority. The presumption of conversion will not apply.
Note: In ATTACHMENT CASES, property becomes Custodia Legis - therefore it becomes Public
Property to a certain extent. Therefore, even if such properties/funds belong to private individuals
- as long as such property or funds are under CUSTODIA LEGIS, there can be malversation if such
property/funds in misappropriated.
IMPORTANT: In MALVERSATION, the Negligence of the accountable public official must be
clearly shown to be inexcusable, approximating malice or fraud.
Q: Is Demand necessary in malversation?
A: Demand is only for the purpose of proving a Prima Facie case of Malversation.
CABELLO vs. SANDIGANBAYAN and PEOPLE
G.R. No. 93885. May 14, 1991
Malversation may thus be committed either through a positive act of misappropriation of
public funds or property of passively through negligence by allowing another to commit such
misappropriation.
Nonetheless, all that is necessary to prove in both acts are the following:
(a) that the defendant received in his possession public funds or property
(b) that he could not account for them and did not have them in his possession when
audited; and
(c) that he could not give a satisfactory or reasonable excuse for the disappearance of said
funds or property.
An accountable officer may thus be convicted of malversation even if there is no direct
evidence of misappropriation and the only evidence is that there is a shortage in the officer's
accounts which he has not been able to explain satisfactorily.
PEOPLE vs VILLACORTA
The presumption is deemed overthrown if the accountable public officer satisfactorily
proves that not even a single centavo of the missing funds was used by him for his personal
interest. But that the funds were extended as a cash advances to employees in good faith in the
belief that they were for legitimate purposes, with no intent to gain and of goodwill considering
that it was a practice tolerated in the office of said public officer.
The ruling above has been abandoned! In MENESES vs. SANDIGANBAYAN and
PEOPLE, G.R. No. 100625. May 20, 1994, the SC held:
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 the law. To tolerate a such 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 "vale" or chits given in exchange by the
borrowers. On the other hand, in Cabello vs. Sandiganbayan, we held that the giving of "vales" by
public officers out of their accountable funds is prohibited by P.D. No. 1145, otherwise known as
the Government Auditing Code of the Philippines and Memorandum Circular No. 570, dated June
24, 1968 of the General Auditing Office.
PEOPLE vs. CONSIGNA, ET AL.
G.R. No. L-18087. August 31, 1965

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ACQUITTAL OF WILLFUL ACT OF MALVERSATION INCLUDES SAME OFFENSE


COMMITTED THROUGH NEGLIGENCE; Upon the other hand, it is also settled that under the
information filed against Consigna, he could have been convicted not only of the willful offense
expressly charged therein but also of the same offense of malversation through negligence. In a
similar case, We held that, while a criminal negligent act is not a simple modality of a willful crime
but a distinct crime in itself designated as a quasi-offense in our Penal Code, a conviction for the
former can be had under an information exclusively charging the commission of a willful offense,
upon the theory that the greater offense includes the lesser one. This is the situation
obtaining in the present case where Consigna was charged with willful malversation of government
property. Under the information filed he could have been convicted of the same offense but
committed through negligence.
PEOPLE vs DE GUZMAN
In malversation, all that is necessary to prove is that the defendant received in his position
public funds. A public officer maybe held guilty of malversation based on a preliminary audit
report.

DIAZ vs. SANDIGANBAYAN


G.R. No. 125213. January 26, 1999
Liquidation of obligations incurred by accountable public officials involves a long process;
pertinent government accounting principles, require the (a) preparation of the disbursement
voucher, (b) processing of the request for allotment supported by such documents as payrolls,
disbursement vouchers, purchase/job orders, requisitions for supplies/materials, etc., and (c)
issuance of the corresponding check.
Each time, when accomplished, the corresponding amount is debited or deducted from the
available funds of the agency which would then consider the claim settled and paid although there
may have yet been no actual transfer of cash involved from the government to the payee of the
check.
The term "to liquidate" means to settle, to adjust, to ascertain or to reduce to precision in
amount. "Liquidation" does not necessarily signify payment, and "to liquidate an account," can
mean to ascertain the balance due, to whom it is due, and to whom it is payable; hence, an account
that has been "liquidated" can also mean that the item has been made certain as to what, and how
much, is deemed to be owing.
MAGSUCI vs. SANDIGANBAYAN and PEOPLE
G.R. No. L-101545. January 3, 1995
The actions taken by Magsuci involved the very functions he had to discharge in the
performance of his official duties. There has been no intimation at all that he had foreknowledge of
any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have
indeed been lax and administratively remiss in placing too much reliance on the official reports
submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that
there must be a conscious design to commit an offense. Conspiracy is not the product of negligence
but of intentionality on the part of cohorts.
In Arias vs. Sandiganbayan, G.R. No. 81563. December 19, 1989, this Court, aware of
the dire consequences that a different rule could bring, has aptly concluded: "We
would
be
setting a bad precedent if a head of office plagued by all too common problems - dishonest or
negligent subordinates, overwork, multiple assignments or positions, or plain incompetence - is
suddenly swept into a conspiracy conviction simply because he did not personally examine every
single detail, painstakingly trace every step from inception, and investigate the motives of every
person involved in a transaction before affixing his signature as the final approving authority. x x x.
All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith
of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be
some added reason why he should examine each voucher in such detail. Any executive head of

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even small government agencies or commissions can attest to the volume of papers that must be
signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers
that routinely pass through his hands. The number in bigger offices or departments is even more
appalling."

In short, a public officer cannot be held guilty of malversation if he relied in good faith on the
representation made by the subordinate and provided that there was no conspiracy.
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.
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.
There is no malversation through simple negligence or reckless imprudence, whether
deliberately or negligently. This is one crime in the Revised Penal Code where the
penalty is the same whether committed with dolo or culpa.

Question & Answer


What crime under the Revised Penal Code carries the same penalty whether
committed intentionally or through negligence?
Malversation under Article 217. 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.
The crime of malversation can be committed only by an officer accountable for the
funds or property which is appropriated. This crime, therefore, bears a relation
between the offender and the funds or property involved.
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.
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.

Questions & Answers

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1.
An unlicensed firearm was confiscated by a policeman. Instead of
turning over the firearm to the property custodian for the prosecution of the offender,
the policeman sold the firearm. What crime was committed?
The crime committed is malversation because that firearm is subject to his
accountability. Having taken custody of the firearm, he is supposed to account for it as
evidence for the prosecution of the offender.
2.

Can the buyer be liable under the Anti-fencing law?

No. The crime is neither theft nor robbery, but malversation.


3.
A member of the Philippine National Police went on absence without
leave. He was charged with malversation of the firearm issued to him. After two
years, he came out of hiding and surrendered the firearm. What crime was committed?
The crime committed was malversation. Payment of the amount
misappropriated or restitution of property misappropriated does not erase criminal
liability but only civil liability.
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.

Question & Answer


There was a long line of payors on the last day of payment for residence
certificates. Employee A of the municipality placed all his collections inside his table
and requested his employee B to watch over his table while he goes to the restroom.
B took advantage of As absence and took P50.00 out of the collections. A returned
and found his money short. What crimes have been committed?
A is guilty of malversation through negligence because he did not exercise due
diligence in the safekeeping of the funds when he did not lock the drawer of his table.
Insofar as B is concerned, the crime is qualified theft.
Under jurisprudence, when the public officer leaves his post without locking his drawer,
there is negligence. Thus, he is liable for the loss.

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Illustration:
A government cashier did not bother to put the public fund in the public safe/vault but
just left it in the drawer of his table which has no lock. The next morning when he
came back, the money was already gone. He was held liable for malversation through
negligence because in effect, he has abandoned the fund or property without any
safety.
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.

Illustration:
Municipal treasurer connives with outsiders to make it appear that the office of the
treasurer was robbed. He worked overtime and the co-conspirators barged in, hog-tied
the treasurer and made it appear that there was a robbery. Crime committed is
malversation because the municipal treasurer was an accountable officer.
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.
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.
Illustration:
(1)

It is a common practice of government cashiers to change the checks of their


friends with cash in their custody, sometimes at a discount. The public officer
knows that the check is good because the issuer thereof is a man of name. So
he changed the same with cash. The check turned out to be good.
With that act of changing the cash of the government with the check of a
private person, even though the check is good, malversation is committed. The
reason is that a check is cleared only after three days. During that period of
three days, the government is being denied the use of the public fund. With
more reason if that check bounce because the government suffers.

(2)

An accountable public officer, out of laziness, declares that the payment was
made to him after he had cleaned his table and locked his safe for the

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collection of the day. A taxpayer came and he insisted that he pay the amount
so that he will not return the next day. So he accepted the payment but is too
lazy to open the combination of the public safe. He just pocketed the money.
When he came home, the money was still in his pocket. The next day, when he
went back to the office, he changed clothes and he claims that he forgot to put
the money in the new funds that he would collect the next day. Government
auditors came and subjected him to inspection. He was found short of that
amount. He claimed that it is in his house -- with that alone, he was charged
with malversation and was convicted.
Any overage or excess in the collection of an accountable public officer should not be
extracted by him once it is commingled with the public funds.
Illustration:
When taxpayers pay their accountabilities to the government by way of taxes or
licenses like registration of motor vehicles, the taxpayer does not bother to collect
loose change. So the government cashier accumulates the loose change until this
amounts to a sizable sum. In order to avoid malversation, the cashier did not separate
what is due the government which was left to her by way of loose change. Instead, he
gets all of these and keeps it in the public vault/safe. After the payment of the taxes
and licenses is through, he gets all the official receipts and takes the sum total of the
payment. He then opens the public vault and counts the cash. Whatever will be the
excess or the overage, he gets. In this case, malversation is committed.
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.
When does presumption of misappropriation arise?
When a demand is made upon an accountable officer and he cannot produce the fund
or property involved, there is a prima facie presumption that he had converted the
same to his own use. There must be indubitable proof that thing unaccounted for
exists. Audit should be made to determine if there was shortage. Audit must be
complete and trustworthy. If there is doubt, presumption does not arise.
Presumption arises only if at the time the demand to produce the public funds was
made, the accountability of the accused is already determined and liquidated. A
demand upon the accused to produce the funds in his possession and a failure on his
part to produce the same will not bring about this presumption unless and until the
amount of his accountability is already known.
In Dumagat v. Sandiganbayan, 160 SCRA 483, it was held that the prima facie
presumption under the Revised Penal Code arises only if there is no issue as to
the accuracy, correctness and regularity of the audit findings and if the fact that
public funds are missing is indubitably established. The audit must be thorough
and complete down to the last detail, establishing with absolute certainty the
fact that the funds are indeed missing.

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In De Guzman v. People, 119 SCRA 337, it was held that in malversation, all that
is necessary to prove is that the defendant received in his possession the public
funds and that he could not account for them and that he could not give a
reasonable excuse for their disappearance. An accountable public officer may
be convicted of malversation even if there is no direct evidence of
misappropriation and the only evidence is the shortage in the accounts which
he has not been able to explain satisfactorily.
In Cabello v. Sandiganbaya, 197 SCRA 94, it was held it was held that
malversation may be committed intentionally or by negligence. The dolo or
culpa bringing about the offences is only a modality in the perpetration of the
offense. The same offense of malversation is involved, whether the mode
charged differs from the mode established in the commission of the crime. An
accused charged with willful malversation may be convicted of Malversation
through her negligee.
In Quizo v. Sandiganbayan, the accused incurred shortage (P1.74) mainly
because the auditor disallowed certain cash advances the accused granted to
employees. But on the same date that the audit was made, he partly
reimbursed the amount and paid it in full three days later. The Supreme Court
considered the circumstances as negative of criminal intent.
The cash
advances were made in good faith and out of good will to co-employees which
was a practice tolerated in the office. The actual cash shortage was only P1.74
and together with the disallowed advances were fully reimbursed within a
reasonable time. There was no negligence, malice, nor intent to defraud.
In Ciamfranca Jr. v. Sandiganbayan, where the accused in malversation could
not give reasonable and satisfactory explanation or excuse for the missing
funds or property accountable by him, it was held that the return of the funds or
property is not a defense and does not extinguish criminal liability.
In Parungao v. Sandiganbayan, 197 SCRA 173, it was held that a public officer
charged with malversation cannot be convicted of technical malversation
(illegal use of public funds under Article 220). To do so would violate accuseds
right to be informed of nature of accusation against him.
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.

Updates in MALVERSATION
The elements of the offense of malversation of public funds are as follows: (1) the offender is a public officer; (2)
he has the custody or control of the funds or property by reason of the duties of his office; (3) the funds or
property involved are public funds or property for which he is accountable; and (4) he has appropriated, taken or
misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another
person of, such funds or property. 34
Concededly, the first three elements are present in this case. It is the last element, i.e., whether petitioner
misappropriated said public funds, that serves as the petitioner's focus. He claims that he used the missing funds

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for disbursement of cash advances, and not for his personal use. The Sandiganbayan held that this defense is
unacceptable, and indicative of petitioner's guilt. On this point, we are in agreement.
o
To begin with, this defense had been advanced in several cases before this Court, but has been found to
be without merit. As held in Rueda, Jr. v. Sandiganbayan and other cases:
o
[T]he practice of disbursing public funds under the "vale" system is not a meritorious defense in
malversation cases. 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.
Malversation may be committed by appropriating public funds or property; by taking or misappropriating the
same; by consenting, or through abandonment or negligence, by permitting any other person to take such public
funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.
19
The essential elements common to all acts of malversation under Art. 217 of the Revised Penal Code 20 are:
(a)
That the offender be a public officer;
(b)
That he had the custody or control of funds or property by reason of the duties of his office;
(c)
That those funds or property were public funds or property for which he was accountable; STDEcA
(d)
That he appropriated, took, misappropriated or consented or, through abandonment or negligence,
permitted another person to take them. 21
o
There can be no malversation of public funds by petitioner Ocampo in the instant cases since the loan of
P11.5 million transferred ownership and custody of the funds, which included the sum of money
allegedly malversed, to LTFI for which Ocampo could no longer be held accountable. Thus, contrary to
the allegation of the Office of the Special Prosecutor, petitioner Ocampo cannot be held culpable for
malversation committed through negligence in adopting measures to safeguard the money of the
Province of Tarlac, since the same were neither in his custody nor was he accountable therefor after the
loan to LTFI.
o
Thus, petitioner Flores, as the executive director of LTFI, cannot also be held liable for malversation of
public funds in a contract of loan which transferred ownership of the funds to LTFI making them private
in character. Liwanag v. Court of Appeals 22 held:
. . . in a contract of loan once the money is received by the debtor, ownership over the same is
transferred. Being the owner, the borrower can dispose of it for whatever purpose he may deem proper.
What is controlling in the instant cases is that the parties entered into a contract of loan for each release of
NALGU funds. The second release on October 24, 1988 included the subject funds in controversy. By virtue of the
contract of loan, ownership of the subject funds was transferred to LTFI making them private in character, and
therefore not subject of the instant cases of malversation of public funds.
Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as
malversation are: (1) appropriating public funds or property, (2) taking or misappropriating the same, (3)
consenting, or through abandonment or negligence, permitting any other person to take such public funds or
property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property.
o
Evidently, the first three elements are present in the case at bar. At the time of the commission of the
crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon,
Bohol. By reason of his public office, he was accountable for the public funds under his custody or
control.
o
The question then is whether or not petitioner has appropriated, took or misappropriated, or consented
or through abandonment or negligence, permitted another person to take such funds.
o
In malversation, all that is necessary to prove is that the defendant received in his possession public
funds; that he could not account for them and did not have them in his possession; and that he could not
give a reasonable excuse for its disappearance. An accountable public officer may be convicted of
malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in
his accounts which he has not been able to explain satisfactorily. Verily, an accountable public officer
may be found guilty of malversation even if there is no direct evidence of malversation because the law
establishes a presumption that mere failure of an accountable officer to produce public funds which
have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie
case of conversion.
o
Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused
to adequately explain the location of the funds or property under his custody or control in order to rebut
the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do
so, the accused may be convicted under the said provision.

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However, the presumption is merely prima facie and a rebuttable one. The accountable officer may
overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has
not put said funds or property to personal use, then that presumption is at end and the prima facie case
is destroyed.

There can hardly be no dispute about the presence of the first three elements. Petitioner is a public officer
occupying the position of a supply officer at the Office of the Provincial Engineer of Marinduque. In that capacity,
he receives money or property belonging to the provincial government for which he is bound to account. It is the
last element, i.e., whether or not petitioner really has misappropriated public funds, where the instant petition
focuses itself on.
In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer
had received public funds, that he did not have them in his possession when demand therefor was made, and that
he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the
accused is hardly necessary 16 as long as the accused cannot explain satisfactorily the shortage in his accounts.
o
In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the Revised
Penal Code, i.e., the failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that
he has put such missing fund or property to personal uses. The presumption is, of course, rebuttable.
Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he
had put the funds or property to personal use, then that presumption would be at an end and the prima
facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not
due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all.
o
Here, the return of the said amount cannot be considered a mitigating circumstance analogous to
voluntary surrender considering that it took petitioner almost seven (7) years to return the amount.
Petitioner has not advanced a plausible reason why he could not liquidate his cash advance which was in
his possession for several years.
As a last ditch effort to exonerate himself, petitioner anchored his defense on Madarang 24 and Agullo, 25 where
public employees charged of malversation were cleared of criminal liability.
o
In these two (2) cases cited by petitioner, we elucidated the legal presumption of assumed criminal
liability for accountable funds under the last paragraph of Article 217 of the Revised Penal Code. In
Madarang, we explained:
o
Concededly, the first three elements are present in the case at bar. Lacking any evidence, however, of
shortage, or taking, appropriation, or conversion by petitioner or loss of public funds, there is no
malversation (Narciso vs. Sandiganbayan, 229 SCRA 229 [1994]). True, the law creates a presumption that
the mere failure of an accountable officer to produce public funds which have come into his hand on
demand by an officer duly authorized to examine his accounts is prima facie evidence of conversion. The
presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence
that can nullify any likelihood that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated. 26
o
In Agullo, we amplified that:
o
Thus, in a string of categorical pronouncements, this Court has consistently and emphatically ruled that
the presumption of conversion incarnated in Article 217, paragraph (4) of the Revised Penal Code is by
its very nature rebuttable. To put it differently, the presumption under the law is not conclusive but
disputable by satisfactory evidence to the effect that the accused did not utilize the public funds or
property for his personal use, gain or benefit.
o
Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he
had put the funds or property to personal use, then that presumption would be at an end and the prima
facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not
due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all. 27
o
Unfortunately, petitioner's vaunted reliance on Madarang and Agullo does not provide legal relief as the
facts in these cases are not on all fours with his case. The accused parties in said cases were able to
produce satisfactory evidence ample enough to prove that the missing funds were not converted to their
personal uses and thus, the legal presumption was effectively negated.
o
In Madarang, the accused, based on the COA audit report, was charged with malversation of PhP
20,700.00 representing advance rental payments for the lease of real property owned by the City of
Cebu for which he was responsible as a barangay captain. When the accused was asked to account for

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such missing funds, he introduced convincing evidence that the funds were utilized by the barangay for
its projects and for the benefit of his constituents, namely: for materials for the water system of the
barangay hall, barangay police uniforms, and payment for medicine. Therefore, the legal presumption
was successfully overturned.
Likewise, in Agullo, the accused, who was the disbursing officer of then Ministry of Public Works and
Highways, Regional Office No. VIII, Candahug, Palo, Leyte, was charged based on audit, with
malversation of PhP 26,404.26 representing the salaries of the personnel in her office. The accused
admitted that the funds were lost; however, she was able to prove that she suffered a stroke while going
to her office. This was corroborated by the barangay captain of the place where she suffered a stroke,
as well as medical certificates to prove the illness. She was acquitted because the loss of funds was not
due to malversation.
In contrast, petitioner anchored his defenses solely on his own bare testimony unsubstantiated by other
parol, documentary, or object evidence to prop up such self-serving allegations. Without doubt, the
rulings in Madarang and Agullo cannot be considered precedents to the case at bar because the facts in
said cases are not the same or substantially similar to petitioner Wa-acon's situation.

The felony consists not only in misappropriation or converting public funds or property to one's personal use but
also by knowingly allowing others to make use of or misappropriate the same. 30 The felony may thus be
committed by dolo or by culpa. The crime is consummated and the appropriate penalty is imposed regardless of
whether the mode of commission is with intent or due to negligence. 31 An accountable officer may thus be
convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that
there is a shortage in the officer's account which he has not been able to explain satisfactorily. All that is essential
is proof that the accountable officer has received public funds but that when demand therefor is made, he is
unable to satisfactorily account for the same.
o
The law declares that the failure of the public officer to account for such public funds or property upon
demand by any duly-authorized officer shall be prima facie evidence that he has appropriated the same
for his personal use.
A public officer may be liable for malversation even if he does not use public property or funds under his custody
for his personal benefit, but consents to the taking thereof by another person, or, through abandonment or
negligence, permitted such taking.
o
The prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial
evidence, that the public officer appropriated, misappropriated or consented or through abandonment
or negligence, permitted another person to take public property or public funds under his custody.
Absent such evidence, the public officer cannot be held criminally liable for malversation. 27 Mere
absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to
turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion
must be proved. 28 However, an accountable officer may be convicted of malversation even in the
absence of direct proof of misappropriation so long as there is evidence of shortage in his account which
he is unable to explain.
o
Demand to produce public funds under a public officer's custody is not an essential element of the
felony. The law creates a prima facie presumption of connivance if the public officer fails to produce
public funds under his custody upon demand therefor.
o
However, the presumption may be rebutted by evidence that the public officer had fully accounted for
the alleged cash shortage.
MALVERSATION OF PUBLIC FUNDS OR PROPERTY; ELEMENTS. The elements of malversation, essential for the
conviction of an accused under the above penal provision are: 1. That the offender is a public officer; 2. That he
has the custody or control of funds or property by reason of the duties of his office; 3. That the funds or property
are public funds or property for which he is accountable; and 4. That he appropriated, took, misappropriated or
consented or through abandonment or negligence, permitted another person to take them. AaECSH
o
ACCOUNTABLE OFFICER NEED NOT BE A BONDED OFFICIAL. An accountable public officer, within the
purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or
property by reason of the duties of his office. To be liable for malversation, an accountable officer need
not be a bonded official. The name or relative importance of the office or employment is not the
controlling factor. What is decisive is the nature of the duties that he performs and that as part of, and
by reason of said duties, he receives public money or property which he is bound to account.
o
POLICE OFFICER IS ACCOUNTABLE FOR THE FIREARMS ISSUED TO HIM WHEN HE FAILED TO PRODUCE IT
UPON DEMAND BY THE PROPER AUTHORITY. In the case at bar, the delivery to petitioner of the

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firearms belonging to the Government, by reason of his office as Station Commander of Calinog, Iloilo,
PC-INP, necessarily entailed the obligation on his part to safely keep the firearms, use them for the
purposes for which they were entrusted to him, and to return them to the proper authority at the
termination of his tenure as commander, or on demand by the owner, the duty to account for said
firearms. Thus, in Felicilda v. Grospe, the Court held a police officer accountable for the firearms issued
to him and consequently convicted him for malversation of public property when he failed to produce
said firearms upon demand by the proper authority.
It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official
position, or even a private individual, may be liable for malversation or illegal use of public funds or property if
such public officer or private individual conspires with an accountable public officer to commit malversation or
illegal use of public funds or property.
o
The Court has also ruled that one who conspires with the provincial treasurer in committing six counts of
malversation is also a co-principal in committing those offenses, and that a private person conspiring
with an accountable public officer in committing malversation is also guilty of malversation.
o
We agree with the petitioner's contention that under Section 474 of the Local Government Code, she is
not obliged to receive public money or property, nor is she obligated to account for the same; hence,
she is not an accountable officer within the context of Article 217 of the Revised Penal Code. Indeed,
under the said article, an accountable public officer is one who has actual control of public funds or
property by reason of the duties of his office. Even then, it cannot thereby be necessarily concluded that
a municipal accountant can never be convicted for malversation under the Revised Penal Code. The
name or relative importance of the office or employment is not the controlling factor. 24 The nature of
the duties of the public officer or employee, the fact that as part of his duties he received public money
for which he is bound to account and failed to account for it, is the factor which determines whether or
not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the
provincial or municipal government may be held guilty of malversation if he or she is entrusted with
public funds and misappropriates the same.

ARTICLE 218
FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS
A. Elements
1. Offender is a public officer, whether in the service or separated therefrom
2. He must be an accountable officer for public funds or property.
3. Required by law or regulation to render account to the central or provincial
auditor.
been

4. That he fails to do so for a period of 2 months after such accounts should have
rendered.

ARTICLE 219
FAILURE OF RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE
LEAVING THE COUNTRY
A. Elements
1. Offender is a public officer.
2. Accountable officer for public funds or property
3. He must have unlawfully left (or on the point of leaving) the Philippines without
securing
from the auditor general a certificate showing that his accounts have
been settled.
Note: This article only applies if the public officer leave or attempt to leave the country
UNLAWFULLY.
When an accountable officer leaves the country without first settling his accountability
or otherwise securing a clearance from the Commission on Audit regarding such
accountability, the implication is that he left the country because he has
misappropriated the funds under his accountability.

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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.
The purpose of the law is to discourage responsible or accountable officers from
leaving without first liquidating their accountability.
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
Kernel of the Provision:
Money for public purpose is spent for another public purpose.
A. Elements
1. Offender is a public officer
2. There is public funds or property under his administration.
3. That such public funds or property has been appropriated by law or ordinance.
4. He applies the same to public use other than for which such fund or property
has been
appropriated by law or ordinance.
Q: A city engineer was given 200 bags of cement for the repair of a certain highway. However, the
engineer used only 100 bags for the highway. The remaining bags , he used to construct a
cemented road in a nearby barangay which according to him, needed more attention. Is he guilty of
Technical Malversation?
A: YES, the 200 bags was for the repair of the said highway. The Engr. cannot substitute his own
judgment to that of the legislative body which appropriated the money for the public purpose
intended.
Q: Is damage to Government necessary?
A: NO, even if the public official used the funds/property to an even greater use- hes still liable. It
is not the damage that determine criminal liability - it is the fact that the offender used his
discretion over and above what the law/ordinance had determined and for which it is appropriated.
ACTUAL CASE:
In an action for Replevin, plaintiff obtained a favorable judgment and accordingly, the local
sheriff was tasked to recover the sports car which is the subject matter of the action. However,
instead of depositing said car, the sheriff used the car and drove it to a beach resort. Along the way,
one of the tires hit a nail and got flat. The sheriff took the car to a nearby vulcanizing shop and
informed the mechanic that the car is government property. Yet, despite the sheriffs statement,
the mechanic cannibalized the sports car. What crime did the sheriff commit?
The Sheriff is guilty of MALVERSATION because he is accountable for the return/delivery
of the sports car.
Q: Isnt the sheriff guilty of theft?
A: No. The sheriff would have been guilty of theft only if the element of Accountability is absent.
Q: How about the mechanic who cannibalized the car? What crime did he commit?

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A: The mechanic is also guilty of Malversation because the sheriff had entrusted the car to said
mechanic.
IMPORTANT:
PROPERTY UNDER CUSTODY= means that the keeper of the property has the authority
to apply or appropriate the same. His duty is the safekeeping of the property.
PROPERTY UNDER ADMINISTRATION= means that the administrator has to apply the
property to purposes for which the same has been earmarked. Administration connotes
application.
NOTE: In Malversation, returning of the property which has been misappropriated has been
considered as a mitigating circumstance. However, if the property is returned only after several
years have elapsed from the time the property was misappropriated, it cannot anymore be
considered as mitigating.(Quizo vs Sandiganbayan)
* see ART 17 last paragraph - Presumption of malversation - thus an accountable public officer
maybe convicted of malversation even if there is no Direct Evidence of Misappropriation i.e. the
only evidence is that there is a shortage in his account which has not been able to explain
satisfactorily.
PARUNGAO vs. SANDIGANBAYAN and PEOPLE
G.R. No. 96025. May 15, 1991
DISTINGUISH
MALVERSATION
OF
PUBLIC
FUNDS
AND
TECHNICAL
MALVERSATION; NOT INCLUDED IN NOR DOES IT NECESSARILY INCLUDE THE CRIME OF
MALVERSATION OF PUBLIC FUNDS. A comparison of the two articles reveals that their
elements are entirely distinct and different from the other.
In malversation of public funds, the offender misappropriates public funds for his own
personal use or allows any other person to take such public funds for the latter's personal use.
In technical malversation, the public officer applies public funds under his
administration not for his or another's personal use, but to a public use other than that for which
the fund was appropriated by law or ordinance.
Technical malversation is, therefore, not included in nor does it necessarily include the
crime of malversation of public funds charged in the information. Since the acts constituting the
crime of technical malversation were not alleged in the information, and since technical
malversation does not include, or is not included in the crime of malversation of public funds, he
cannot resultantly be convicted of technical malversation.

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

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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.
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.

Question & Answer


The sheriff, after having levied on the property subject of a judgment,
conducted a public auction sale. He received the proceeds of the public auction.
Actually, the proceeds are to be delivered to the plaintiff. The sheriff, after deducting
the sheriffs fees due to the office, spent part of that amount. He gave the balance to
the plaintiff and executed a promissory note to pay the plaintiff the amount spent by
him. Is there a crime committed?

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The Supreme Court ruled that the sheriff committed the crime of malversation because
the proceeds of the auction sale was turned over to the plaintiff, such proceeds is
impressed with the characteristic of being part of public funds. The sheriff is
accountable therefore because he is not supposed to use any part of such proceeds.
ARTICLE 221
FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
A. Acts Punished
1. By failing to make payment by a public officer who is under the obligation to
make such
payment from the Government funds in his possession.
2. By refusing to make delivery by a public officer who has been ordered by
competent
authority to delivery any property in his custody or under his
administration.
B. Elements
1. The public officer has Government funds in his possession.
2. That he is under obligation to make payment from such funds
3. Fails to make the payment maliciously
ARTICLE 222
OFFICERS INCLUDED IN THE PRECEDING PROVISIONS
The provisions of this chapter shall apply to:
1. Private individuals who in any capacity whatever, have charge of any insular,
provincial or
municipal funds, revenues, or property and
2. Administrator or depository of funds or property attached, seized or deposited
by public
authority, even if such property belongs to a private individual.
- Sheriffs and receivers are considered administrators
- Judicial administrator (appointed by the court to administer the estate of the deceased) not
considered as administrator.

Chapter Five
INFIDELITY OF PUBLIC OFFICERS
Section One. Infidelity in the custody of prisoners
ARTICLE 223
CONNIVING WITH OR CONSENTING TO EVASION
A. Elements
1. Offender is a public officer
2. Had in his custody or charge a prisoner, either detention prisoners or prisoner
by final
judgement
3. Such prisoner escaped from his custody
4. That he was in connivance with the prisoner in the latters escape

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ARTICLE 224
EVASION THROUGH NEGLIGENCE
A. Elements
1. Offender is a public officer
2. He is charged with the custody of a prisoner, either detention prisoners or
prisoner by
final judgement
3. That such prisoner escaped through his negligence
ARTICLE 225
ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC
OFFICER
A. Elements
1. Offender is a private person
2. That he has in his custody of a prisoner or person under arrest is confided to
him
- thus, Art 225 not applicable if the private person makes the arrest
3. That the prisoner or person under arrest escapes
4. The offender consents to the escape of the prisoner or person under arrest, or
that the
escape takes place through his negligence
The crime is infidelity in the custody of prisoners if the offender involved is the
custodian of the prisoner.
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 a 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?

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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.
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.

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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.
Section Two. Infidelity in the custody of document
ARTICLE 226
REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS
A. Elements
1. Offender is a public officer
2. He abstracts, destroys or conceals a document or paper
3. That the said document or paper should have been entrusted to such officer by
reason of
his public office
4. The damage whether serious or not, to a third party or to the public interest
should have
been caused
- Damage may mean mere alarm or in the alienation of its confidencein the
govt
Crimes falling under the section on infidelity in the custody of public documents can
only be committed by the public officer who is made the custodian of the document in
his official capacity. If the officer was placed in possession of the document but it is
not his duty to be the custodian thereof, this crime is not committed.
Illustration:
A letter is entrusted to a postmaster for transmission of a registered letter to another.
The postmaster opened the letter and finding the money, extracted the same. The
crime committed is infidelity in the custody of the public document because under
Article 226, the law refers also to papers entrusted to public officer involved and
currency note is considered to be within the term paper although it is not a document.
With respect to official documents, infidelity is committed by destroying the document,
or removing the document or concealing the document.
Damage to public interest is necessary. However, material damage is not necessary.
Illustration:
If any citizen goes to a public office, desiring to go over public records and the
custodian of the records had concealed the same so that this citizen is required to go
back for the record to be taken out, the crime of infidelity is already committed by the
custodian who removed the records and kept it in a place where it is not supposed to
be kept. Here, it is again the breach of public trust which is punished.
Although there is no material damage caused, mere delay in rendering public service
is considered damage.
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

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be kept. If damage is caused to the public service, the public officer is criminally liable
for infidelity in the custody of official 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.

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.
ARTICLE 227
OFFICER BREAKING SEAL
A. Elements
1. Offender is a public officer
2. Charged with the custody of papers or property
3. These papers or property are sealed by proper authority
4. He breaks the seal or permits it to be broken
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.
The act is punished because if a document is entrusted to the custody of a public
officer in a sealed or closed envelope, such public officer is supposed not to know what
is inside the same. If he would break the seal or open the closed envelop, indications
would be that he tried to find out the contents of the document. For that act, he
violates the confidence or trust reposed on him.
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

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There is infidelity if the offender opened the letter but did not take the same.

There is theft if there is intent to gain when the offender took the money.

Note that he 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 CLOSED DOCUMENTS
A. Elements
1. Offender is a public officer
2. The closed paper, document, or object are entrusted to his custody
3. That he opens or permits to be opened said closed papers, documents or objects
4. He does not have proper authority
Section Three. Revelation of secrets
ARTICLE 229
REVELATION OF SECRETS BY AN OFFICER
A. Acts Punishable
1. By revealing any secret (secret must affect public interest) known to the
offending public officer by reason of his official
capacity
a. Offender is a public officer
b. Knows a secret by reason of his official capacity
c. Reveals the secret without authority or justifiable reason
d. The damage, great or small, be caused to the public interest
2. By delivering wrongfully papers or copies of papers of which he may have charge
and
which should not have been published
a. Offender is a public officer
b. Charge of papers
c. That those papers should have not have been published
d. He delivers those papers or copies thereof to a third person
e. Delivery is wrongful
f. Damage is caused to public interest
ARTICLE 230
PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL

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A. Elements
1. Offender is a public officer
2. Knows a secret of a private individual by reason of his office
3. Reveals the secret without authority or justifiable reason

Chapter Six
OTHER OFFENSES OR IRREGULARITIES
BY PUBLIC OFFICERS
ARTICLE 231
OPEN DISOBEDIENCE
A. Elements
1. The offender is a judicial or executive officer
2. That there is judgement, decision or order of a superior authority
3. That such judgement, decision or order was made within the scope of the
jurisdiction of
the superior authority and issued with all legal formalities
4. That the offender without any legal justification openly refuses to execute the
said
judgement, decision or order, which he is duty bound to obey
ARTICLE 232
DISOBEDIENCE TO ORDER OF SUPERIOR OFFICERS, WHEN SAID ORDER WAS
SUSPENDED BU INFERIOR OFFICER
A. Elements
1. Offender is a public officer
2. An order was issued by his superior for execution
3. He has for any reason suspended the execution of the order
4. His superior disapproves the suspension of the execution of the order
5. The offender disobeys his superior despite the disapproval of the suspension
- This article does not apply if the order of the superior is illegal
ARTICLE 233
REFUSAL TO ASSISTANCE
A. Elements
1. Offender is a public officer
2. That a competent authority demands from the offender that he lends his
cooperation
towards the administration of justice or other public service
3. Offender fails to comply maliciously
Any public officer who, upon being requested to render public assistance within his
official duty to render and he refuses to render the same when it is necessary in the
administration of justice or for public service, may be prosecuted for refusal of
assistance.
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

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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.
Illustration:
A government physician, who had been subpoenaed to appear in court to testify in
connection with physical injury cases or cases involving human lives, does not want to
appear in court to testify. He may be charged for refusal of assistance. As long as
they have been properly notified by subpoena and they disobeyed the subpoena, they
can be charged always if it can be shown that they are deliberately refusing to appear
in court.
It is not always a case or in connection with the appearance in court that this crime
may be committed. Any refusal by the public officer to render assistance when
demanded by competent public authority, as long as the assistance requested from
them is within their duty to render and that assistance is needed for public service, the
public officers who are refusing deliberately may be charged with refusal of assistance.
Note that the request must come from one public officer to another.
Illustration:
A fireman was asked by a private person for services but was refused by the former for
lack of consideration.
It was held that the crime is not refusal of assistance because the request did not
come from a public authority. But if the fireman was ordered by the authority to put
out the fire and he refused, the crime is refusal of assistance.
If he receives consideration therefore, bribery is committed. But mere demand will fall
under the prohibition under the provision of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act).
ARTICLE 234
REFUSAL TO DISCHARGE ELECTIVE OFFICE
A. Elements
1. Offender is elected by popular election to a public office
2. Refuses to be sworn in or to discharge the duties of said office
3. There is no legal motive for such refusal to be sworn in or discharge the duties of
said
office
ARTICLE 235
MALTREATMENT OF PRISONERS
A. Elements
1. Offender is a public officer or employee
2. He has under his charge a prisoner or detention prisoner
3. He maltreats the prisoner in any of the following manner

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detention
humiliating

a. By overdoing himself in the correction or handling of a prisoner or


prisoner under his charge, either:
- imposition of punishments not authorized by the regulations
- inflicting such punishments (those authorized) in a cruel and
manner
4. maltreating such prisoner to extort a confession, or to obtain some information

from the
prisoner
- Offender may also be liable for physical injuries or damage caused, aside from incurring liability
from this article.
This is committed only by such public officer charged with direct custody of the
prisoner. Not all public officer can commit this offense.
If the public officer is not the custodian of the prisoner, and he manhandles the latter,
the crime is physical injuries.
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.
Illustration:
Make him drink dirty water, sit on ice, eat on a can, make him strip, hang a sign on his
neck saying snatcher.
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 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.

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But if it is the custodian who effected the maltreatment, the crime will be
maltreatment of prisoners plus a separate charge for physical injuries.
If a prisoner who had already been booked was make to strip his clothes before he was
put in the detention cell so that when he was placed inside the detention cell, he was
already naked and he used both of his hands to cover his private part, the crime of
maltreatment of prisoner had already been committed.
After having been booked, the prisoner was made to show any sign on his arm, hand or
his neck; Do not follow my footsteps, I am a thief. That is maltreatment of prisoner if
the offended party had already been booked and incarcerated no matter how short, as
a prisoner.
Before this point in time, when he is not yet a prisoner, the act of hanging a sign on his
neck will only amount to slander because the idea is to cast dishonor. Any injury
inflicted upon him will only give rise to the crime of physical injuries.
Section Two. Anticipation, prolongation and abandonment of
the duties and powers of public office.
ARTICLE 236
ANTICIPATION OF DUTIES OF A PUBLIC OFFICE
A. Elements
1. The offender is entitled to hold public office or employment, either by election or
appointment
2. That the law requires that he should be first sworn in and/or should first give a
bond
3. That he assumes the performance of the duties and power of such office
4. That he has not taken his oath of office and/or gives the bond required
ARTICLE 237
PROLONGING PERFORMANCE OF DUTIES AND POWERS
A. Elements
1. Offender is holding a public office, employment or commission
2. The period provided by law, regulation, or special provision for holding such
office has
already expired
3. That he continues to exercise the duties and powers of such office
ARTICLE 238
ABANDONMENT OF OFFICE OR POSITION
A. Elements
1. Offender is a public officer
2. He formally resigns from his position
3. His resignation has not yet been accepted
4. He abandons his office to the detriment of the public services

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- Offense is qualified if the purpose of the abandonment is to evade the discharge of the duties of
preventing, prosecuting, or punishing any of the crimes falling under Crimes against National
Security and the Law of Nations OR Rebellion, Sedition and Disloyalty
Abandonment under Art. 228 distinguished from Negligence and tolerance in prosecution
under Art 208

Art 228
Who
institute

ANY public officer

Art 208
Only public officers who have the duty to
prosecution

for

the

punishment

of

violations of the
law
How

Abandons his office to evade the


discharge of his duty

Does not abandon his office but he fails to


prosecute an offense by dereliction of duty

or by
malicious tolerance of the commission of
offenses
Section Three. Usurpation of powers and unlawful appointments
ARTICLE 239
USURPATION OF LEGISLATIVE POWERS
A. Elements
1. The offender is an executive or judicial officer
2. That he:
a. makes general rules and regulations beyond the scope of his authority
b. attempts to repeal a law
c. suspends the execution thereof
ARTICLE 240
USURPATION OF EXECUTIVE FUNCTIONS
A. Elements
1. The offender is a judge
2. That he:
a. assumes a power pertaining to the executive authorities
b. obstructs the executive authorities in the lawful exercise of their power
- Legislative officers are not liable for usurpation of powers
ARTICLE 241
USURPATION OF JUDICIAL FUNCTIONS
A. Elements
1. The offender is an executive officer
2. That he:
a. assumes judicial powers
b. obstructs the execution of any order or decision rendered by any judge
within his

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jurisdiction
ARTICLE 242
DISOBEYING REQUEST FOR DISQUALIFICATION
A. Elements
1. The offender is a public officer
2. That a proceeding is pending before such public officer
3. That there is a question brought before the proper authority regarding his
jurisdiction,
which is not yet decided
4. That he has been lawfully required to refrain from continuing the proceeding
5. That he continues the proceeding
ARTICLE 243
ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY
A. Elements
1. The offender is an executive officer
2. That he addresses any order or suggestion to any judicial authority
3. That the order or suggestion relates to any case or business coming within the
exclusive
jurisdiction of the courts of justice
ARTICLE 244
UNLAWFUL APPOINMENTS
A. Elements
1. The offender is a public offender
2. That he nominates or appoints a person to a public office
3. That such person lacks the legal qualification therefore
4. That the offender knows that his nominee or appointee lacks the qualifications
at the time
he made the nomination or appointment
Nominate is different from recommend, the latter is not punishable.
Section Four. Abuses against chastity
ARTICLE 245
ABUSES AGAINST CHASTITY
A. Elements
1. The offender is a public officer
2. That he solicits or makes immoral or indecent advances to a woman
3. That such woman must be:
a. interested in matters pending before the offender for decision, or with
respect to which he is required to submit a report to or consult with a superior officer
b. under the custody of the offender who is a warden or other public officer
directly charged with the care and custody of prisoners or persons under arrest

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c. the wife, daughter, sister or relatives within the same degree by affinity
of the person in the custody of the offender
- the mother of the person in the custody of the offender is not included
- crime is consummated even by mere proposal
- proof of solicitation is not necessary when there is sexual intercourse
The name of the crime is misleading. It implies that the chastity of the offended party
is abused but this is not really the essence of the crime because the essence of the
crime is mere making of immoral or indecent solicitation or advances.
Illustration:
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.
Three instances when this crime may arise:
(1)

The woman, who is the offended party, is the party in interest in a case where
the offended is the investigator or he is required to render a report or he is
required to consult with a superior officer.
This does not include any casual or incidental interest. This refers to interest in
the subject of the case under investigation.
If the public officer charged with the investigation or with the rendering of the
report or with the giving of advice by way of consultation with a superior, made
some immoral or indecent solicitation upon such woman, he is taking
advantage of his position over the case. For that immoral or indecent
solicitation, a crime is already committed even if the woman did not accede to
the solicitation.
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.

(2)

The woman who is the offended party in the crime is a prisoner under the
custody of a warden or the jailer who is the offender.
If the warden or jailer of the woman should make immoral or indecent advances
to such prisoner, this crime is committed.

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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.
Immoral or indecent advances contemplated here must be persistent. It must
be determined. A mere joke would not suffice.
Illustrations:
(1)

An investigating prosecutor where the woman is charged with estafa as


the respondent, made a remark to the woman, thus: You know, the
way of deciding this case depends on me. I can just say this is civil in
character. I want to see a movie tonight and I want a companion. Such
a remark, which is not discerned if not persistent will not give rise to this
crime. However, if the prosecutor kept on calling the woman and
inviting her, that makes the act determined and the crime is committed.

(2)

A jailer was prosecuted for abuse against chastity. The jailer said, It
was mutual on their part. I did not really force my way upon the woman.
The woman fell in love with me, I fell in love with the woman. The
woman became pregnant. The woman admitted that she was not
forced. Just the same, the jailer was convicted of abuse against chastity.

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.
Being responsible for the pregnancy is itself taking advantage the prisoner.
If he forced himself against the will of the woman, another crime is committed,
that is, rape aside from abuse against chastity.
You cannot consider the abuse against chastity as absorbed in the rape
because the basis of penalizing the acts is different from each other.
(3)

The crime is committed upon a female relative of a prisoner under the custody
of the offender, where the woman is the daughter, sister or relative by affinity
in the same line as of the prisoner under the custody of the offender who made
the indecent or immoral solicitation.
The mother is not included so that any immoral or indecent solicitation upon
the mother of the prisoner does not give rise to this crime, but the offender
may be prosecuted under the Section 28 of Republic Act No. 3019 (Anti-graft
and Corrupt Practices Act).
Why is the mother left out? Because it is the mother who easily succumbs to
protect her child.
If the offender were not the custodian, then crime would fall under Republic Act
No. 3019 (The Anti-Graft and Corrupt Practices Act).

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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
The essence of crime here involves the taking of human life, destruction of the fetus or
inflicting injuries.
As to the taking of human life, you have:
(1)
(2)
(3)
(4)
(5)

Parricide;
Murder;
Homicide;
Infanticide; and
Giving assistance to suicide.

Note that parricide is premised on the relationship between the offender and the
offended. The victim is three days old or older. A stranger who conspires with the
parent is guilty of murder.
In infanticide, the victim is younger than three days or 72 hours old; can be committed
by a stranger. If a stranger who conspires with parent, both commit the crime of
infanticide.

Chapter One
DESTRUCTION OF LIFE
Section One. Parricide, murder, homicide
ARTICLE 246
PARRICIDE
A. 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.
The essential element is relationship!
or any of his ascendants, or descendants, or his spouse- all of them must be legitimate.
Note: Under Art. 246, the child killed must not be less than 3 days old because that would already
fall under the crime of Infanticide.
Note: In Parricide. Relationship must be alleged in the information because the accused is entitled
to know the cause of the accusation against him. Failure to allege relationship in the information
modifies the crime to either murder or homicide.
Q: When X was born, his father and mother had already separated. X never knew or even saw his
father. Celebrating his 21st birthday, X treated his friends to a drinking spree in a nearby club. In
the course of their drinking session, X and his friends had an altercation with a group of men in
another table. As a result thereof, a fight ensued and X was able to kill one of the men who turned

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out to be his real father Y. Is X guilty of parricide even if he didnt know that it was his father whom
he killed?
A: Yup, X is still guilty of Parricide under Art 246.
Q: X wanted to kill his father B. He sought the help of Y, a close friend. Together, X and Y
succeeded in killing B. What was the crime committed?
A: X is guilty of parricide while Y is guilty of Murder or Homicide as the case may be.
This is a crime committed between people who are related by blood. Between
spouses, even though they are not related by blood, it is also parricide.
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.
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.
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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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.
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.
ARTICLE 247
DEATH
OF
PHYSICAL
CIRCUMSTANCES

INJURIES

INFLICTED

UNDER

EXECPTIONAL

A. Requisites for the application of Art. 247:


1. That a legally married person or a parent surprises his spouse or his daughter,
the latter
under 18 years of age and living with him, in the act of committing
sexual intercourse
with another person.
2. That he or she kills any or both, of them or inflicts upon any or both of them any
serious
physical injury in the act or immediate thereafter.
3. That he has not promoted or facilitated the prostitution of his wife or daughter,
or that
he or she has not consented to the infidelity of the spouse.
* Take note of Art 11, par 1
Q: A suspected his wife B of having an extra marital affair with the neighbor next door. One day, A
told his wife that he will be home late because of a business meeting. However, there was no
business meeting at all - As intention was merely to let her wife B think that hes away for work so
he can observe from a safe distance in order to confirm his suspicious about his wife. True enough,
A watched as the paramour entered his house. After a few minutes, A followed and entered their
house and caught his wife and the paramour having carnal knowledge. A immediately got his
shotgun and blew the paramours head off. Then he turned to his wife and fired the remaining
bullets at the latters body shredding the skin and shattering the bones of B - killing the latter. Is
this a case of Death under exceptional circumstances under Art 247?
A: NO, because A did not surprise his spouse. A actually planned all of it - telling B that he will be
home late, etc. The crime is murder or homicide as the case maybe. Thus, in order to qualify under
the article the innocent spouse with out any advanced planning, must have surprised the guilty
spouse and the paramour.

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Note: Art 247 applies if the innocent spouse killed or inflicted upon the guilty spouse or the
paramour Serious Physical Injuries. But if there was no killing and the injuries inflicted were not
serious, the innocent spouse is EXEMPT from any criminal liability.
Q: Under the 3rd paragraph of Article 247, must the daughter be legitimate or illegitimate?
A: The law does not qualify so we should not qualify also.
Surprise - to come upon suddenly and unexpectedly.
Note: Art 247 is NOT APPLICABLE when the accused did not actually see his/her spouse having
sexual intercourse with another. But this is a very restrictive rule. It is believed that it is enough
that the circumstance show reasonably that the carnal act is being committed.
Q: Does sexual intercourse include preparatory acts?
A: In a case, SC held that THERE MUST BE ACTUAL SEXUAL INTERCOURSE
Note: The killing/ inflicting of serious physical injuries must be done in the act of sexual
intercourse or immediately thereafter.
Q: Having surprised his wife and the paramour, A killed his wife but the paramour jumped off the
window and ran. A gave chase and after a kilometer of running, caught up with the paramour and
killed the latter. Is this death under exceptional circumstances.
A: Yes, the discovery, the escape, the pursuit and the killing must all form part of one Continuous
Act.
Q: A, after having surprised his wife in the act of committing sexual intercourse with another, got
his shotgun and fired at his wife. However, the wife was not hit - instead, their next door neighbor
was hit by the bullet and died. Is A criminally liable for the death of the neighbor?
A: NO, the accused cannot be held liable for injuries sustained by 3 rd persons because at the time of
the firing, the accused was doing a lawful act.
Two stages contemplated before the article will apply:
(1)

When the offender surprised the other spouse with a paramour or mistress.
The attack must take place while the sexual intercourse is going on. If the
surprise was before or after the intercourse, no matter how immediate it may
be, Article 247 does not apply. The offender in this situation only gets the
benefit of a mitigating circumstance, that is, sufficient provocation immediately
preceding the act.

(2)

When the offender kills or inflicts serious physical injury upon the other spouse
and/or paramour while in the act of intercourse, or immediately thereafter, that
is, after surprising.

You have to divide the stages because as far as the first stage is concerned, it does not
admit of any situation less than sexual intercourse.
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.

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If the surprising took place after the actual sexual intercourse was finished, even if the
act being performed indicates no other conclusion but that sexual intercourse was had,
the article does not apply.
As long as the surprising took place while the sexual intercourse was going on, the
second stage becomes immaterial.
It is either killing or inflicting physical injuries while in that act or immediately
thereafter. If the killing was done while in that act, no problem. If the killing was done
when sexual intercourse is finished, a problem arises. First, were they surprised in
actual sexual intercourse? Second, were they killed immediately thereafter?
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.
The article presumes that a legally married person who surprises his or her better half
in actual sexual intercourse would be overcome by the obfuscation he felt when he
saw them in the act that he lost his head. The law, thus, affords protection to a spouse
who is considered to have acted in a justified outburst of passion or a state of mental
disequilibrium. The offended spouse has no time to regain his self-control.
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.
As long as the act is continuous, the article still applies.
Where the accused surprised his wife and his paramour in the act of illicit
intercourse, as a result of which he went out to kill the paramour in a fit of
passionate outburst. Although about one hour had passed between the time
the accused discovered his wife having sexual intercourse with the victim and
the time the latter was actually killed, it was held in People v. Abarca, 153 SCRA
735, that Article 247 was applicable, as the shooting was a continuation of the
pursuit of the victim by the accused. Here, the accused, after the discovery of
the act of infidelity of his wife, looked for a firearm in Tacloban City.
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.
Illustration:
A upon coming home, surprised his wife, B, together with C. The paramour was fast
enough to jump out of the window. A got the bolo and chased C but he disappeared
among the neighborhood. So A started looking around for about an hour but he could
not find the paramour. A gave up and was on his way home. Unfortunately, the
paramour, thinking that A was no longer around, came out of hiding and at that
moment, A saw him and hacked him to death. There was a break of time and Article

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247 does not apply anymore because when he gave up the search, it is a circumstance
showing that his anger had already died down.
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.
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 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.
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.
The article is also made available to parents who shall surprise their daughter below
18 years of age in actual sexual intercourse while living with them. The act should
have been committed by the daughter with a seducer. The two stages also apply. The
parents cannot invoke this provision if, in a way, they have encouraged the prostitution
of the daughter.

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The phrase living with them is understood to be in their own dwelling, because of
the embarrassment and humiliation done not only to the parent but also to
the parental abode.
If it was done in a motel, the article does not apply.
Illustration:
A abandoned his wife B for two years. To support their children, A had to accept a
relationship with another man. A learned of this, and surprised them in the act of
sexual intercourse and killed B. A is not entitled to Article 248. Having abandoned his
family for two years, it was natural for her to feel some affection for others, more so of
a man who could help her.
Homicide committed under exceptional circumstances, although punished with
destierro, is within the jurisdiction of the Regional Trial Court and not the MTC because
the crime charged is homicide or murder. The exceptional circumstances, not being
elements of the crime but a matter of defense, are not pleaded. It practically grants a
privilege amounting to an exemption for adequate punishment.

ARTICLE 248
MURDER
A. Elements:
1. That a person is killed
2. The accused killed him.
3. That the killing was attended by any of the following qualifying circumstances
a. treachery, taking advantage of superior strength, with the aid of armed
men,
employing means to weaken the defense or means to insure
impunity.
b. in consideration of prize, reward or promise
c. by means of inundation, fire, poison, shipwreck, etc.
d. on occasion of any calamity
e. with evident premeditation
f. with cruelty, by deliberately and inhumanely augmenting the suffering
of the
victim, or outraging (to commit an extremely vicious or
deeply insulting act)
or scoffing (to jeer and implies a sharing of
irreverence) at the person or
corpse of the victim.
4. The killing is not parricide or infanticide.
Q: If X burns the house of Y and the latter dies, whats the crime?
A: ARSON is the crime. However, if X burned the house of Y for the purpose of killing Y, the crime
is
MURDER.
Note: Killing a person with treachery is murder even if there is no intent to kill. Furthermore, if
you kill a child of tender years, its murder because the child has no means of defense.
RULES FOR THE APPLICATION OF CIRCUMSTANCES WHICH QUALIFY THE KILLING TO
MURDER:
1. Only 1 qualifying circumstance. When more than one of the circumstances described are
present, the others must be considered as generic aggravating.

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2. That when the circumstances are absorbed or included in one qualifying circumstance,
cannot be considered as generics.
3. Any of the qualifying circumstances must be alleged in the information. Failure to allege
reduces
the crime to Homicide but the prosecution is still allowed to present evidence of
aggravating
circumstances to increase the penalty.
they

OUTRAGING - to commit an extremely vicious act


e.g. A was killed and his undergarments were stuffed inside his skull.
B was killed and his sexual organ was placed in his mouth.
SCOFFING - to jeer with irreverence
Homicide is qualified to murder if any of the qualifying circumstances under Article 248
is present. It is the unlawful killing of a person not constituting murder, parricide or
infanticide.
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 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:

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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.
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.

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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.
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

(6)

Cruelty, by deliberately and inhumanly augmenting the suffering of the victim,


or outraging or scoffing at his person or corpse.

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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.
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

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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
A. Elements
1. A person is killed
2. The accused killed the person without any justifying circumstance
3. The accused had the intention to kill, which is presumed.
4. The killing was not attended by any of the qualifying circumstances of murder
or that of
parricide or infanticide
Note: In Homicide, intent to kill is conclusively presumed when there is death. However, Intent to
kill is important in attempted or frustrated Homicide because if the prosecution fails to prove such
intent, the crime may be reduced to physical injuries.
Q: X stabbed Y. Instead of seeking medical attention, Y went home and personally treated the stab
wound. Later the wound got infected and Y died. Is X liable?
A: YES, X is liable for Homicide.
Q: X intentionally cut the arm of Y. Y didnt die immediately. However, because the knife used by
X was so rusty, Y suffered from TETANUS and consequently died. Is X still liable?
A: YES. The rule is that the assailant is liable for all the NATURAL CONSEQUENCES of his own
voluntary act.
Note: The killing must not be justified under Art 249.
There is no such thing as frustrated homicide thru imprudence because when you say frustratedthere must be intent to kill which is inconsistent with imprudence.
Q: A and B stabbed C. The wound inflicted by A was not fatal while the wound inflicted by B was
fatal. Are they both liable?
A: YES. It is the burden of the defendants to show
Homicide is the unlawful killing of a person not constituting murder, parricide or
infanticide.
Distinction between homicide and physical injuries:
In attempted or frustrated homicide, there is intent to kill.

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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.
ARTICLE 250
PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE
The meaning of CORPUS DELICTI in crimes against persons?
It means the FACT of the commission of the crime.
REQUISITES:
a) Person is killed.
b) Accused killed the person.
c) TRUTH of death proven through DEATH CERTIFICATE or TESTIMONIES of witnesses
who saw the killing.
Case: The accused were seen bringing the victim to a sugar cane plantation. Thereafter, gunshots
were heard in the area where the victim was brought. After the incident, the victim was
never seen again. Thus a case was filed charging the accused with the crime of
KIDNAPPING WITH MURDER. The prosecution merely relied on the fact that the victim
was missing after that incident. Nobody saw the commission of the crime. No blood stains
were found in the place where the victim was last seen.
RTC convicted the accused for kidnapping with murder.
SC reversed RTCs decision. Prosecution was not able to prove DEATH.
Prosecution cannot rely alone on the PRESUMPTION OF DEATH. The accused is guilty
only of KIDNAPPING.

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ARTICLE 251
DEATH CAUSED IN TUMULTUOUS AFFRAY
A. Elements
1. There are several persons
2. They did not compose groups organized for the common purpose of assaulting
or
attacking each other reciprocally
3. That these several persons quarreled and assaulted one another in a confused
and
tumultuous manner
4. Someone was killed in the course of the affray
5. It cannot be ascertained who actually killed the deceased
6. The person who inflicted serious physical injuries or who used violence can be
identified
TUMULTUOUS -- there must be at least four (4) persons in the affray.
Example:
In an inter-barangay basketball game, the supporters of both teams suddenly quarreled
and fought each other using stones, wooden chairs, etc. in the course of the incident, A died. Thus,
Art. 251 applies.
IMPORTANT: Art. 251 DOES NOT APPLY when the 2 groups are identified and organized.
The reason being that if the 2 groups are organized the principle on CONSPIRACY will apply
ACT of one = ACT of all.
PEOPLE vs. FERRER. SISON, ET AL
G.R. No. 114931-33. November 16, 1995
Marcos loyalists were staging a rally at the Luneta Park when a DIE-HARD Coryfan passed by. Upon seeing the Cory-fan, the Marcos loyalists immediately ganged up
on him and inflicted wounds which caused the ultimate demise of the Cory-fan.
LOWER COURT convicted the Marcos loyalists with the crime of HOMICIDE.
Marcos loyalists argued with the Supreme Court that the crime is NOT HOMICIDE
but DEATH in a TUMULTUOUS AFFRAY.
SC held that Art. 251 DOES NOT APPLY because there was ONLY one person vs.
the Marcos loyalists. Further more, the Marcos loyalists were identified and organized!
x
x
x
For this article to apply, it must be established that:
(1) there be several persons;
(2) that they did not compose groups organized for the common purpose of
assaulting and attacking each other reciprocally;
(3) these several persons quarrelled and assaulted one another in a
confused and
tumultuous manner;
(4) someone was killed in the course of the affray;
(5) it cannot be ascertained who actually killed the deceased; and
(6) that the person or persons who inflicted serious physical injuries or
who used
violence can be identified.

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A tumultuous affray takes place when a quarrel occurs between several persons
and they engage in a confused and tumultuous affray, in the course of which some
person is killed or wounded and the author thereof cannot be ascertained.
The quarrel in the instant case, if it can be called a quarrel, was between one
distinct group and one individual. Confusion may have occurred because of the police
dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to
Maria Orosa Street. It was only a while later after said dispersal that one distinct group
identified as loyalists picked on one defenseless individual and attacked him repeatedly,
taking turns in inflicting punches, kicks and blows on him. There was no confusion and
tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the
incident.
As the lower courts found, the victim's assailants were numerous by as much as
fifty in number and were armed with stones with which they hit the victim. They took
advantage of their superior strength and excessive force and frustrated any attempt by
Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to
the Rizal Monument several meters away and hit him mercilessly even when he was
already fallen on the ground. There was a time Salcedo was able to get up, prop himself
against the pavement and wipe off the blood from his face. But his attackers continued to
pursue him relentlessly. Salcedo could not defend himself nor could he find means to
defend himself. Sumilang tried to save him from his assailants but they continued
beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored
his pleas until he finally lost unconsciousness. The deliberate and prolonged use of
superior strength on a defenseless victim qualifies the killing to murder.
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.

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.

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(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.

The fight must be tumultuous. The participants must not be members of an organized
group. This is different from a rumble which involves organized groups composed of
persons who are to attack others. If the fight is between such groups, even if you
cannot identify who, in particular, committed the killing, the adverse party composing
the organized group will be collectively charged for the death of that person.
Illustration:
If a fight ensued between 20 Sigue-Sigue Gang men and 20 Bahala-Na- Gang men, and
in the course thereof, one from each group was killed, the crime would be homicide or
murder; there will be collective responsibility on both sides. Note that the person
killed need not be a participant in the fight.
ARTICLE 252
PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY
A. Elements
1. That there is a tumultuous affray as referred to in the preceding Article
2. That the participant or some participants thereof suffer serious physical injuries
or
physical injuries of a less serious nature only
3. That the person responsible therefore cannot be identified
NOTE: There is NO SLIGHT PHYSICAL INJURIES inflicted in a tumultuous affray because such
kind of injury is INHERENT in a tumultuous affray.
If in the course of the tumultuous affray, only serious or less serious physical injuries
are inflicted upon a participant, those who used violence upon the person of the
offended party shall be held liable.
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.
ARTICLE 253
GIVING ASSISTANCE TO SUICIDE
A. Acts Punished

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1. By assisting another to commit suicide, whether the suicide is consummated or


not
2. By lending his assistance to another to the extent of doing the killing himself
QUERY: Is the one who attempts to commit suicide liable under this article?
Interestingly, NO.
NOTE: Mercy killing or Euthanasia is ILLEGAL here in the Philippines!!!
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.).
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.
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 homicide (if without consent; with
consent, covered by Article 253).
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.

In other penal codes, if the person who wanted to die did not die, there is liability on
his part because there is public disturbance committed by him. Our Revised Penal
Code is silent but there is no bar against accusing the person of disturbance of public
order if indeed serious disturbance of public peace occurred due to his attempt to
commit suicide. If he is not prosecuted, this is out of pity and not because he has not
violated the Revised Penal Code.
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.

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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. If there is only slight persuasion to end his life, and the
offender readily assented thereto.
ARTICLE 254
DISCHARGE OF FIREARMS
A. Elements
1. That the offender discharges a firearm against at or another person
2. That the person had no intention to kill that person
NOTE: Under this Article, there is NO INTENT TO KILL.
IMPORTANT: If you discharge your firearm, without aiming it at another person, in a VERY
QUIET PLACE, the crime is NOT DISCHARGE OF FIREARM but ALARM!!
QUERY: A, without intent to kill, discharged his firearm. The bullet accidentally hit B in the knee.
Crime committed?
Complex crime of DISCHARGE OF FIREARM with PHYSICAL INJURIES.
QUERY: In the example above, what if A had the intent to kill and the wound sustained by B is not
fatal, crime committed?
ATTEMPTED HOMICIDE or ATTEMPTED MURDER as the case may be. BUT if the
wound is serious or fatal. The crime is FRUSTRATED HOMICIDE or MURDER.
IMPORTANT: If the firearm is NOT discharged at the person, there is NO CRIME under Art. 254.
: Discharge towards the house of the victim is NOT illegal discharge.
: Firing a gun towards a house at RANDOM, not knowing where the people inside were,
is ALARM under Art. 155.
This crime cannot be committed through imprudence because it requires that the
discharge must be directed at another.
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.
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.

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Section Two --- Infanticide and abortion


ARTICLE 255
INFANTICIDE
A. Elements
1. A child was killed
2. That the deceased was less than 3 days of age
3. The accused killed the child
NOTE: If the child is killed by the PATERNAL grandparents for the purpose of concealing
dishonor -- NO MITIGATING CIRCUMSTANCE
Concealing dishonor -- not an element of infanticide; used for purpose only of availing of
mitigating circumstance.
NOTE: It is always INFANTICIDE, regardless of whether the killer is related to the victim or not
as long as the child is LESS THAN 3 DAYS OF AGE.
This is a crime based on the age of the victim. The victim should be less than three
days old.
The offender may actually be the parent of the child. But you call the crime
infanticide, not parricide, if the age of the victim is less than three days old. If the
victim is three days old or above, the crime is 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.
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.

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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.
If the child is born dead, or if the child is already dead, infanticide is not committed.
ARTICLE 256
INTENTIONAL ABORTION
A. Elements
1. There is a pregnant woman
2. That violence is exerted, or drugs or beverages administered, or that the accused
otherwise acts upon the pregnant woman
3. That as a result of the use of violence or drugs or beverages upon her, the fetus
dies in
the womb or after having expelled therefrom
Abortion the killing of the foetus in the uterus or the violent expulsion of the foetus from the
maternal womb, which results in the death of the foetus.
NOTE: In abortion, the foetus must be capable of sustaining an independent life.
: Abortion is not a crime against the pregnant woman rather it is a crime against a FOETUS
which may be over or less than 6 months.
Distinguish Abortion from Infanticide.
NOTE: The crime is INFANTICIDE if the foetus:
1) Could sustain an independent life, after its separation from the maternal womb, and
2) It is killed.
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.
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.

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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.
ARTICLE 257
UNINTENTIONAL ABORTION
A. Elements
1. There is a pregnant woman
2. Violence is used upon the pregnant woman without intending an abortion
3, The violence is intentionally exerted

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4. The result of the violence, the fetus dies, either in the womb or after having
expelled
therefrom
NOTE: The violence must be INTENTIONALLY exerted.
Example: In the heat of a n argument, H boxed his pregnant wife, W. W was hit in the stomach
and consequently, the child was aborted. H is guilty of UNINTENTIONAL ABORTION.
Q: Is the accused liable for ABORTION even if he did not know that the woman was pregnant?
A: YES.
NOTE: There is a complex crime of HOMICIDE with UNINTENTIONAL ABORTION and
PARRICIDE with ABORTION.
Distinction between intentional abortion and unintentional abortion:
In INtentional Abortion, there is INTENT TO ABORT.
In UNintentional Abortion, NO INTENT TO ABORT but violence is inflicted.
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.
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.
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.

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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.

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
A. Elements
1. That there is a pregnant woman who has suffered an abortion
2. The abortion is intended
3. That the abortion is caused by:
a. the pregnant woman herself
b. any other person with her consent
c. any of her parents, with her consent for the purpose of concealing her
dishonor
NOTE: Abortion maternal grandparents can only claim mitigating circumstance if the
MOTHER CONSENTED!!

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ARTICLE 259
ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF
ABORTIVES
A. Elements
1. That there is a pregnant woman who has suffered an abortion
2. The abortion is intended
3. The offender, who must be a physician or midwife, causes or assists in the
causing the
abortion
4. The physician or midwife takes advantage of his or her scientific knowledge or
skill
QUERY: Will the article apply if a NURSE assisted the doctor?
The nurse will be held liable but the penalty will not be the same.
Reason why maximum penalties are imposed:
This is because of the use of scientific knowledge for the destruction of human life.
Take note:
REPUBLIC ACT NO. 4729
AN ACT TO REGULATE THE SALE, DISPENSATION, AND/OR
DISTRIBUTION OF CONTRACEPTIVE DRUGS AND DEVICES
Sec. 1.
It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise
distribute whether for or without consideration, any contraceptive drug or device, UNLESS such sale,
dispensation or distribution is by a duly licensed drug store or pharmaceutical company AND with the
prescription of a qualified medical practitioner.

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:
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.

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Section Three. -- Duel


ARTICLE 260
RESPONSIBILITY OF PARTICIPANTS IN A DUEL
NOTE: Persons liable and the acts punishable.
Q: Who are liable?
1) The person who killed or inflicted physical injuries upon his adversary, or both combatants
in any other case, as principals.
2) The seconds, as accomplices.
Acts punishable:
1) By killing ones adversary in a duel.
2) By inflicting upon such adversary physical injuries.
3) By making a combat although no physical injuries have been inflicted.
ARTICLE 261
CHALLENGING TO A DUEL
A. Acts Punishable
1. Challenging another to a duel
2. Inciting another to give or accept a challenge to a duel
3. By scoffing at or decrying another publicly for having refused to accept a
challenge to
fight a duel
Note: both Arts. 260 and 261 are almost obsolete!!
There is no such crime nowadays because people hit each other even without entering
into any pre-conceived agreement. This is an obsolete provision.
A duel may be defined as a formal or regular combat previously consented to by two
parties in the presence of two or more seconds of lawful age on each side, who make
the selection of arms and fix all the other conditions of the fight to settle some
antecedent quarrel.
If these are not the conditions of the fight, it is not a duel in the sense contemplated in
the Revised Penal Code. It will be a quarrel and anyone who killed the other will be
liable for homicide or murder, as the case may be.
The concept of duel under the Revised Penal Code is a classical one.
REPUBLIC ACT NO. 8049
AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN
FRATERNITIES, SORORITIES, AND ORGANIZATIONS AND PROVIDING
PENALTIES THEREFOR
Distinction: Homicide and Hazing?
HAZING:
Broader because it covers killing and infliction of physical injuries.
Death is not result of intention.
There is NO INTENTION TO KILL, but the defendant CANNOT impose the defense of no
intention to commit so grave a wrong as that committed.

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HAZING -- initiation rite or practice as a PREREQUISITE for admission into membership in a


fraternity, sorority or organization (thus, it may be a business organization) by placing the
recruit, neophyte, or applicant in some embarrassing or humiliating situations such as
forcing him to do any MENIAL, SILLY, FOOLISH and similar acts or activities or otherwise
subjecting him to physical or psychological suffering or injury.
Organization AFP, PNP, PMA, Officer and Cadet Corp of CMT/CAT.
NOTE: Physical, mental/psychological training to determine the fitness of prospective member of
AFP and PNP as approved by the Secretary of National Defense and National Police Commission
duly recommended by Chief of Staff, AFP, and Director General of PNP shall NOT be considered
HAZING under the act.

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Q: When is hazing punishable?


A: Only when the victim suffers any physical injury or dies as a result thereof
Q: Who are liable as principals:
A:
1. Officer and members of the fraternity, sorority or organization who actually participated
in the
infliction of physical harm
2. Parents, if the hazing is held in the home of one of the officers or members of the
fraternity,
group, or organization, when they have actual knowledge of the hazing conducted
therein but
failed to take any action to prevent the same from occurring.
3. The officers, former officers, or alumni of the organization, group, fraternity, or sorority
who
actually planned the hazing although not present when the acts constituting the hazing
were
committed
4. Officers or members of an organization, group, fraternity, or sorority who knowingly
cooperated in
carrying out the hazing by inducing the victim to be present thereat
5. Fraternity or sorority's adviser who is present when the acts constituting the hazing were
committed and failed to take any action to prevent the same from occurring
6. Any person present during the hazing is prime facie evidence of participation therein
unless he
prevented the commission of the acts punishable herein.
7. President, manager, director or other responsible officer of a corporation engaged in
hazing as a
requirement for employment in the manner provided herein.
Q: Who are liable as accomplices?
A:
1. Owner of the place where hazing is conducted when he has actual knowledge of the
hazing
conducted therein but failed to take any action to prevent the same from occurring
2. School authorities including faculty members who consent to the hazing or who have
actual
knowledge thereof but failed to take any action to prevent the same from occurring
Q: In what instances may the maximum penalty be imposed?
A:
1. When the recruitment is accompanied by force, violence, threat, intimidation or deceit
on the
person of the recruit who refuses to join;
2. When the recruit, neophyte or applicant initially consents to join but upon learning that
hazing will
be committed on his person, is prevented from quitting.
3. When the recruit neophyte or applicant having undergone hazing is prevented from
reporting the
unlawful act to his parents or guardians, to the proper school authorities, or to the
police
authorities through force, violence , threat or intimidation;
4. When the hazing is committed outside of the school or institution: or
5. When the victim is below twelve (12) years of age at the time of the hazing.

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NOTE: Suppose hazing is committed in the RESIDENCE of any of the officers or members of the
fraternity? What is the liability of parents?
Liable as PRINCIPALS.
REQUISITES:
1) Have actual knowledge of the hazing conducted in the house
2) Failed to take any action to prevent the same from occurring.
NOTE: Liability of FACULTY who consent to the hazing who:
1) Have actual knowledge of the hazing conducted.
2) Failed to take any action to prevent the same from occurring.
Liable as ACCOMPLICES.
QUERY: Liability of FORMER officers, alumni who actually planned the hazing although NOT
present when the acts constituting the hazing were committed?
Liable as PRINCIPALS.
QUERY: Liability of fraternity or sorority ADVISER who was present when the hazing was
committed?
Liable as PRINCIPAL when he failed to take any action to prevent the same from occurring.
IMPORTANT: VERY DANGEROUS!!!
The PRESENCE OF ANY PERSON during the hazing prima facie evidence of
participation therein as PRINCIPAL unless he prevented the commission of the acts punishable
therein.
NOTE: Presence of any person without qualification
OPINION on interpretation: Here, Person refers to the members, officers, school authorities, etc.
It does NOT apply to strangers.
NOTE: Any person charged under this provision shall NOT be entitled to the mitigating
circumstance that there was no intention to commit so grave a wrong.
NOTE: In case juridical persons are involved, e.g. corporations or organizations:
PERSONS LIABLE:
President, manager, director or other responsible officer of a corporation.

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REPUBLIC ACT NO. 6713


Code of Conduct and Ethical Standards for Public Officials and Employees
NOTE: This is a unique law. It is addressed to the conscience of public officers and employees.
NOTE: There are PENAL sanctions
NOTE: To uphold the time-honored principle of PUBLIC OFFICE IS A PUBLIC TRUST. Granting
incentives and rewards for exemplary services.
Salient features of the law:
SECTION 2
DECLARATION OF POLICY
NOTE: Accountability to the people, responsibility, integrity, competence and loyalty, patriotism
and justice, lead modest lives and uphold public interest over personal interest.
TWO POINTS:
MAIN point: Accountable to the people.
Another: Public interest OVER private interest.
EMPHASIS: Conflict of interest.
NOTE: Conflict of interest is not emphasized in other laws including RA 3019.
SECTION 3
DEFINITION OF TERMS
PUBLIC OFFICIALS
6713: elective, appointive, permanent, temporary, whether in the career or non-career
service including military and police personnel, whether or not they receive compensation
regardless of amount.
: the public officer may be receiving compensation or not receiving any at all.
3019: the public officer must at least receive NOMINAL compensation.
GIFT refers to a thing or a right disposed of gratuitously or any act of liberality in favor of
another who accepts it. It shall NOT include unsolicited gift of nominal or insignificant value not
given in anticipation of or in exchange for, a favor from a public officer or employee. (RA 6713)
NOTE: In indirect bribery, a person gives gift to a public officer, he ACCEPTS it because the giver
is anticipating a favor in the future.
NOTE: The gift is UNSOLICITED. It is not even necessary for acceptance to exist in the second
sentence of the term GIFT.
NOTE: Receiving a gift distinguish from RA 3019
RECEIVING ANY GIFT -- includes the act of accepting, directly or indirectly, a gift from a
person other than a member of his family or relative, even on the occasion of a family celebration or
national festivity like Christmas is the value of the gift neither nominal nor insignificant, o r the gift
is given in the anticipation of, or in exchange for a favor. (RA 6713)

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3019: find the word manifestly excessive.


6713: value of gift is neither nominal or insignificant.
FAMILY OF PUBLIC OFFICIALS OR PUBLIC EMPLOYEES -- means their spouses and
unmarried children under 18 years of age.
CONFLICT INTEREST [important definition unique u cannot find this any other penal law]
-- arises when a public official or employee is a member of a board, an officer, or a
substantial stockholder of a private corporation or owner or has a substantial interest in a business
and the interest of such corporation or business, or his rights or duties therein , may be opposed to
or affected by the faithful performance of official duty.
NOTE: Private interest in conflict with your public position or duty.
RELATIVES [peculiar definition]
-- Refers to any and all persons related to a public official or employee within the fourth
civil degree of consanguinity or affinity, including bilas, inso, and balae.
Bilas in law
Inso related through baptism etc. (godparents)
Balae parents of husband and wife
SECTION 4
NORMS OF CONDUCT OF PUBLIC OFFICIALS AND EMPLOYEES
NOTE: NOT necessary to concentrate so much time on this. Never been asked in the BAR but just
familiarize, enumerate.
a) Commitment to public interest
b) Professionalism they shall endeavor to discourage wrong perceptions of their
roles as dispensers or peddlers of undue patronage.
c) Justness and sincerity you shall not discriminate against anyone especially the
poor and underprivileged. They shall refrain from doing acts contrary to law, good
morals, good customs, public policy, public order, public safety, public interest.
They shall not dispense or extend undue favors on account of their offices to their
relatives, whether by consanguinity or affinity, except the following:
appointment of such relatives to positions strictly confidential.
members of their personal staff whose terms are coterminous with
theirs
d) Political neutrality
e) Responsiveness to the public
f)

Nationalism and patriotism loyalty to the Republic and to the Filipino people,
promote the use of locally produced goods, resources and technology and
encourage appreciation and pride of country and people.

g) Commitment to democracy commit themselves to the democratic way of life and


values, maintain the principle of public accountability, uphold the Constitution and
put loyalty to country above loyalty to person.

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h) Simple living they shall not indulge in extravagant or ostentatious display of


wealth.
SECTION 5
DUTIES OF PUBLIC OFFICIALS AND EMPLOYEES.
(a) Act promptly on letters and requests.
NOTE: Par (a) is very important! Answer or reply is essential or else you will be brought
before the ombudsman.
(b) Submit annual performance reports.
Rationale: There is SYSTEM OF REWARDS that is why there is rating on public officers
merit system.
(c) Process documents and papers expeditiously.
(d) Act immediately on the publics personal transactions.
(e) Make documents more accessible to the public.
ALL public documents must be made accessible to, and readily available for
inspection by the public within reasonable working hours.
NOTE: Pursuant to constitutional provisions on access to public records.
NOTE: READ!!
SECTION 6
SYSTEM OF INCENTIVES AND REWARDS
NOTE: Outstanding merits on the basis of standards set forth on the act.
SECTION 7
PROHIBITED ACTS AND TRANSACTIONS
In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby
declared to be unlawful:
(a)
Financial and material interest. - Public officials and employees shall not, directly or indirectly, have
any financial or material interest in any transaction requiring the approval of their office.
(b)
Outside employment and other activities related thereto. - Public officials and employees during their
incumbency shall not:
(1)
Own, control, manage or accept employment as officer, employee, consultant, counsel,
broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office
unless expressly allowed by law;
(2)
Engage in the private practice of their profession unless authorized by the Constitution or
law, provided, that such practice will not conflict or tend to conflict with their official functions; or
(3)
Recommend any person to any position in a private enterprise which has a regular or pending
official transaction with their office.
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation
from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his
profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall
likewise apply.
(c)
Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or
divulge, confidential or classified information officially known to them by reason of their office and not made available to the
public, either:
(1)
To further their private interests, or give undue advantage to anyone; or
(2)
To prejudice the public interest.

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(d)
Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or
indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their
official duties or in connection with any operation being regulated by, or any transaction which may be affected by the
functions of their office.
As to gifts or grants from foreign governments, the Congress consents to:
(i)
The acceptance and retention by a public official or employee of a gift of nominal value
tendered and received as a souvenir or mark of courtesy;
(ii)
The acceptance by a public official or employee of a gift in the nature of a scholarship or
fellowship grant or medical treatment; or
(iii)
The acceptance by a public official or employee of travel grants or expenses for travel taking
place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than
nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and
permitted by the head of office, branch or agency to which he belongs.
The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection,
including pertinent reporting and disclosure requirements.
Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange
programs subject to national security requirements.

NOTE: DO not be confused. There are parallel provisions in 3019 as well as the RPC.
IMPORTANT: What are the prohibited acts and transactions? (see provision)
READ: Sec 3(h) of RA 3019!! This is a parallel provision!
x

(h)
Director or indirectly having financing or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.

QUERY: Teaching of law will it be in conflict with the function of a member of the judiciary?
NO, because it is allowed by law. You have to ask permit from the office of the court
administrator. This is private practice but NOT in conflict with a judges public duties.
NOTE: Under the Local Government Code, there are some local government officials who cannot
practice law.
NOTE: Prejudice to public or private interest
SECTION 8
STATEMENTS AND DISCLOSURES
NOTE: Of assets and liabilities, net worth and financial and business interests. [A]
NOTE: Prohibited acts. [D]

SECTION 9
DIVESTMENT
IMPORTANT: What to do in case Conflict of Interest arises?
1) RESIGN from his position in any private business enterprise within 3o days from his
assumption of office, or
2) DIVEST himself of shareholdings or interest within 60 days from such assumption.

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NOTE: Requirement of divestment. When not applied?


1) Those who serve the government in an honorary capacity.
2) To laborers and casual or temporary workers.
SECTION 11
PENALTIES
NOTE: Ombudsman can dismiss employees even without criminal proceedings. Is it possible?
YES. Under Sec. 11 (b) of RA 6713.
QUERY: May private individuals be held liable for violation of RA 6713?
YES. Private individuals who participate in conspiracy as co-principals, accessories or
accomplices.

PRESIDENTIAL DECREE NO. 1866


Illegal possession of firearm and explosives
(As amended by RA 8294, reducing the penalty for illegal possession)
NOTE: In relation to rebellion, insurrection, murder and homicide.
Acts punished by PD 1866:
1) Unlawful manufacture of firearms or ammunitions
2) Sale of firearms or ammunitions
3) Acquisition of firearms or ammunitions
4) Disposition of firearms or ammunitions
5) Unlawful manufacture, sale, acquisition, disposition of explosives
6) Tampering of firearms serial number
7) Repacking or altering composition of lawfully manufactured explosives
8) Unauthorized issuance of authority to carry firearms and/or ammunitions outosde of
residence.
NOTE: Related BAN on the use of firearm during election GUN BAN LAW
Q: if you carry firearm outside of your residence during elections, what crime is committed?
A: TWO CRIMES are committed:
a) PD 1866 and
b) Comelec Resolution on Gun Ban
Unlicensed firearm includes:
1. Possession of firearms with expired license.
2. Unauthorized use of licensed firearm in the commission of a crime.
WHY? Is there authorized use of licensed in the commission of a crime? NONE. Can be that there
is licensed firearm but it is used by another for the commission of a crime.
PD 1866
Sec 1.
Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition
The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand
pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose,
or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar

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firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000)
shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger
in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms
but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided, however, That no other crime was
committed by the person arrested.
If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of
the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
The same penalty shall be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any
of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found
guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use
unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the
course of their employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor.
Sec. 2.
Presumption of Illegal Manufacture of Firearms or Ammunition. - The possession of any
machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person
whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall
be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms
or ammunition.
Sec 3.
Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The
penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand
pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in,
acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to
'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive
effect on contiguous objects or causing injury or death to any person.
When a person commits any of the crimes defined in the Revised Penal Code or special laws with the
use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of
any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered
as an aggravating circumstance.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of
rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the
crimes of rebellion, insurrection, sedition or attempted coup d'etat.
The same penalty shall be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any
of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons
found guilty of violating the provisions of the preceding paragraphs.
Sec. 4.
Presumption of Unlawful Manufacture. - The possession of any machinery, tool or instrument
directly used in the manufacture of explosives, by any person whose business or employment does not lawfully
deal with the manufacture of explosives shall be prima facie evidence that such article is intended to be used in
the unlawful/illegal manufacture of explosives.
Sec 5.
Tampering of Firearm's Serial Number. The penalty of prision correccional shall be
imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any
firearm.
Sec 6.
Repacking or Altering the Composition of Lawfully Manufactured Explosives. The penalty
of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the
composition of any lawfully manufactured explosives.

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Sec. 7.
Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of
Residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who
shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor.

Forget the cases of PEOPLE vs. TAK-AN, PEOPLE vs. QUIJADA and ROAN vs. GONZALES which
were abandoned by this new law PD 1866
Ownership here is not a defense.
Cases:
PEOPLE vs. VERCHEZ, ET AL
G.R. No. 82729-32. June 15, 1994
The possession of a firearm becomes unlawful when there is no permit or license for its holding. The
law does not prescribe a minimum period of time for the holding of the firearm before its possession can be
illegal. Appellants' allegation that they did not have control or management of the firearms is without merit.
The records show that they knew where to find the firearms. Both Verchez and Aldave testified that they
sought cover inside separate bedrooms when the lawmen fired at them. Thereafter, they retrieved the firearms
from the cabinet in their respective rooms. Their story that their finding of firearms in the cabinets was a
happenstance is simply incredible and not deserving the slightest consideration of this court.
PEOPLE vs. VILLANUEVA
G.R. No. 118078. July 15, 1997
In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz:
(a) the existence of the subject firearm and
(b) the fact that the accused who owned or possessed it
(c) he does not have the corresponding license or permit to possess the same.
The latter is a negative fact which constitutes an essential ingredient of the offense of illegal
possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable
doubt.
GONZALES vs. CA and PEOPLE
G.R. No. 95523. August 18, 1997
As regards the penalty imposed by the trial court and affirmed by the appellate court, we reduce the
same in view of the passage of R.A. No. 8294 wherein the penalty for simple illegal possession of firearms has
been lowered.
Since it is an elementary rule in criminal jurisprudence that penal laws shall be given retroactive
effect when favorable to the accused, we are now mandated to apply the new law in determining the proper
penalty to be imposed on the petitioner.
PEOPLE vs. DELA ROSA, ET AL
G.R. No. 84857. January 16, 1998
It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who
surrendered the subject firearm and explosives to Kagawad Rigor. However, Rodolfo dela Rosa denies that he
was in possession of said ammunitions in the manner punishable by law. According to him, his real intention
was merely to turn over the ammunitions, which were owned by Kumander Tamang, to the authorities. The
trial court perceived otherwise. It declared that since Rodolfo dela Rosa joined the New People's Army (NPA),
there is reason to conclude that he provided himself with arms. And since mere possession is sufficient to
convict a person for crimes which are malum prohibitum like illegal possession of firearms, appellant dela
Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the authorities.

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We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on
the above reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall ". . . unlawfully
manufacture, deal in, acquire, dispose or possess any firearms, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any firearm or ammunition."
Broken down into its salient elements, illegal possession of firearms is committed when the holder
thereof:
(i)
possesses a firearm; and
(ii)
lacks the authority or license to possess it.
In People v. de Gracia, we clarified the meaning of possession for the purpose of convicting a
person under PD 1866, thus:
"But, is the mere fact of physical or constructive possession sufficient to convict a person for
unlawful possession of firearms or must there be an intent to possess to constitute a violation of
the law? This query assumes significance for illegal possession of firearms is a malum prohibitum,
punished by a special law, in which case good faith and absence of criminal intent are not valid
defenses.
"When a crime is punished by a special law, as a rule, intent to commit the crime is not
necessary, it is sufficient that the offender has the intent to perpetrate the act prohibited by the
special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A
person may not have consciously intended to commit a crime but he intended to commit an act,
and that act is by the very nature of things, the crime itself. In the first (intent to commit the
crime), there must be criminal intent, in the second (intent to perpetrate the act) it is enough that
the prohibited act is done freely and consciously.
In the present case, a distinction should be made between criminal intent and intent to
possess. While mere possession without criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was animus possidendi or an
intent to possess on the part of the accused. Such intent to possess is, however, without
regard to any other criminal or felonious intent which the accused may have harbored in
possessing the firearm. Criminal intent here refers to the intention of the accused to commit an
offense with the use of an unlicensed firearm. This is not important in convicting a person under
Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the
decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without criminal
intent."
In the early case of People v. Estoista, we held that a temporary, incidental, casual, or
harmless possession of firearms is not punishable. We stated therein that:
"The terms "control" and "dominion" themselves are relative terms not susceptible of exact
definition, and opinions on the degree and character of control or dominion sufficient to constitute
violation vary. The rule laid down in the United States Courts rule which we here adopt is that
temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a
statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such
possession is where "a person picks up a weapon or hands it to another to examine or hold for a
moment."
Also, in People v. Remereta, where the question posed was whether an accused who stole a
firearm could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient
possession is not sufficient to convict one under the latter crime, thus:
"While in stealing a firearm the accused must necessarily come into possession thereof, the
crime of illegal possession of firearms is not committed by mere transient possession of the
weapon. . . . Thus, stealing a firearm with intent not to use but to render the owner defenseless,
may suffice for purposes of establishing a case of theft, but would not justify a charge for illegal
possession of firearm, since intent to hold and eventually use the weapon would be lacking."
Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a
firearm either physically or constructively with animus possidendi or intention to possess the same. It is not
enough that the firearm was found in the person of the accused who held the same temporarily and casually or
for the purpose of surrendering the same. Admittedly, animus possidendi is a state of mind. As such, what
goes on into the mind of an accused, as his real intent, could be determined solely based on his prior and

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coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his
possession.
Thus, in People v. Leo Lian, we rejected the argument of the accused that the charge against him
should be dismissed because there was no animus possidendi on his part. In said case, the accused contended
that he was on his way to the municipal hall to surrender the firearm when he met some of his friends. He then
forgot about the firearm, until the police officer unceremoniously seized the same from him, affording him no
chance to surrender it himself.
In rejecting accused-appellant's claim, Justice Regalado wrote that:
". . ., the Court finds it hard to believe that appellant still had to hide the firearm in his waist
before setting out to surrender it to the authorities when he could have taken the gun to the town
hall in the same bag in which he found it, in which case it would have been safer and would have
avoided detection. In fine, the indispensable elements of possession without the necessary
authority or license and the corresponding attendance of animus possidendi have both been
convincingly established by the prosecution to warrant appellant's conviction . . ."
That animus possidendi is determinable from the prior and simultaneous acts of the accused is
further exemplified by People v. Lubo. In this case, while accused-appellant pleaded lack of animus
possidendi, his conduct belied the same. Accused-appellant Lubo was found to have secured a "temporary
license" for the subject firearm. Under such circumstance, we held that accused-appellant intended to possess
the subject firearm beyond reasonable doubt.
Coming now to the case before us, it is undisputed that the police officers never really arrested
Rodolfo dela Rosa, for the truth of the matter was that there was no need for such arrest. Dela Rosa and his
companions had surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the
police learned of the surrender because Kagawad Rigor reported it to the police station in Labrador. This is in
contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm which
the police found in his possession. In the case at bar, appellant dela Rosa's intention to surrender the
ammunitions was very clear from the beginning and he was able to execute the same.
Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive
possession of the ammunitions is irrelevant for possession whether physical or constructive without
animus possidendi is not punishable. Dela Rosa's possession was harmless, temporary and only incidental for
the purpose of surrendering the ammunitions to the authorities. Consequently, the prosecution failed to
establish the first element of animus possidendi.

PEOPLE vs. DE GRACIA, ET AL


G.R. Nos. 102009-10. July 6, 1994
The court defines and clarified the meaning of possession in order for the purpose of convicting the
accused under PD 1866.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the
reason that he did not have either physical or constructive possession thereof considering that he had no
intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and
explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the
explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He
claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No.
1866, was not present in the case at bar.
x
x
x
The issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally
possess firearms and ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms
and ammunition. what the law requires is merely possession which includes not only actual
physical possession but also constructive possession or the subjection of the thing to one's control
and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same
perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon
be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can
have no bearing whatsoever.

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But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This query
assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a
special law, 8 in which case good faith and absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit the crime is
not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special
law. Intent to commit the crime and intent to perpetrate the act prohibited by the special law. Intent to
commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things,
the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to
perpetrate the act) it is enough that the prohibited act is done freely and consciously.
In the present case, a distinction should be made between criminal intent and intent to
possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the
part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent
which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of
the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a
person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the
decree, it is sufficient that the accused had no authority or licensed to possess a firearm, and that he intended
to possess the same, even if such possession was in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a
firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon,
such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long
as the animus possidendi is absent, there is no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed
guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite
license or authority therefor. His pretension of impersonal or indifferent material possession does not and
cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in
the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is
a former soldier, having served with the Philippine Constabulary prior to his separation from the service for
going on absence without leave (AWOL). We do not hesitate, therefore, to believe and conclude that he is
familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition
which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not
to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance
on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore,
the place where the explosives were found is not a military camp or office, nor one where such items can
ordinarily but lawfully be stored, as in a gun store, a arsenal or armory. Even an ordinarily prudent man would
be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the
business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and
ammunition.
On the basis of the foregoing disquisition, it is apparent, and we sold hold, that appellant De Gracia
actually intended to possess the articles confiscated from his person.

ARTICLE 262
MUTILATION
A. Elements
1. That there be a castration, that is: mutilation of organs necessary for
regeneration, such
as the penis or ovarium
2. That the mutilation is caused purposely and deliberately, that is, to deprive the
offended
party of some essential organ for reproduction
Mutilation - the lopping or clipping off of some parts of the body

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NOTABENE:
THIS CRIME IS ALWAYS INTENTIONAL
In RA 7610 section 10 thereof= if the victim is below 12 years old, the penalty is higher
If there is a duel (tinigbasay) between two men and the you know what of the other was hit, there
is no mutilation. It is only serious physical injuries because it was accidental.
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.
ARTICLE 263
SERIOUS PHYSICAL INJURIES
Q: how is the crime of serious physical injuries committed?
A:
It is committed by:
1. by wounding
2. by beating
3. by assaulting (article 263) or
4. by administering injurious substance (article 264)
Q: what are serious physical injuries?
A: they are:
1. when the injured person becomes insane, imbecile, impotent, or blind in consequence
of the physical injuries inflicted
2. when the injured person:
a. loses the use of speech or the power to hear or to smell, or loses an eye, a hand,
a foot, an arm, or a leg
b. loses the use of any such member
c. becomes incapacitated for the work in which he was theretofore
habitually engaged, in consequence of the physical injuries inflicted
3. when the person injured
a. becomes deformed
b. loses any member of his body
c. loses the use thereof
d. becomes ill or incapacitated for the performance of the work in
which he was habitually engaged for more than 90 days, in
consequence of the physical injuries inflicted

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4. When the injured person becomes ill or incapacitated for labor for more than
30 days (but must not be more than 90 days) as a result of the physical injuries
inflicted.
NOTA BENE: if the injury incapacitated the person for 15 days but requires medical attendance for
90 days the crime committed is NOT serious physical injuries because nowhere in the paragraphs
under article 263 which requires medical attendance. The crime committed is LESS SERIOUS
PHYSICAL INJURIES because in this case, the requirement for medical attendance is present.
Q: if the physical injuries were inflicted during the time of hazing what is the crime committed?
A: the crime is hazing.
Deformity = physical ugliness, permanent and definite abnormality. It must be conspicuous and
visible.
illustration: if a person already suffering from physical deformity (hiwi iyang nawong) he was in a
fist fight. When he was hit with a punch, the deformity was gone and his face was normal. Is there
deformity within the meaning of Physical Injuries?
A: None, Because there was no physical ugliness. And so if it heals, not deformity also.
Furthermore, if the deformity is not conspicuous like it is found in the stomach, no
deformity.
QUALIFIED SERIOUS PHYSICAL INJURIES
If the offense is committed:
1. Against any of the persons enumerated in the article defining the crime of
parricide
(article 246) OR
2. With attendance of any of the circumstances mentioned in the article defining
the crime
of murder (article 248)
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.
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, notwithstanding the opinion of Spanish commentators like Cuello
Calon, Viada, etc., that it can be committed in the attempted or frustrated stage.
If the act does not give rise to injuries, you will not be able to say whether it is
attempted slight physical injuries, attempted less serious physical injuries, or
attempted serious physical injuries unless the result is there.
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.
Classification of physical injuries:

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(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 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

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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?
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.
ARTICLE 264
ADMINISTERINGINJURIOUS SUBSTANCES OR BEVERAGES
A. Elements
1. That the offender inflicted upon another any serious physical injury
2. That it was done by knowingly administering to him any injurious
substances or
beverages or by taking advantage of his weakness of mind or credulity
3. That he had no intent to kill
- if there is intent to kill then it is frustrated murder/murder
ARTICLE 265
LESS SERIOUS PHYSICAL INJURIES
NOTA BENE: here, the element of MEDICAL ATTENDANCE is present.
1. That the offended party is incapacitated for labor for 10 to 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
Q: When Qualified
A:
1. The Penalty of arresto mayor, and a fine not exceeding 500 pesos shall be imposed.
a. When there is a manifest intent to kill or offend the injured person,
b. There are circumstances adding ignominy to the offense

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2. When the victim is:


a. the offender's parents, ascendants, guardians, or curators
b. teachers, persons of rank, or persons in authority(provided the crime is not
direct assault)
If the physical injuries do not incapacitate the offended party nor necessitate medical
attendance, slight physical injuries is committed. But if the physical injuries heal after
30 days, serious physical injuries is committed under Article 263, paragraph 4.
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 AND MALTREATMENT
A. Three Kinds:
1. Physical injuries which incapacitated the offended party for labor from 1 to 9
days, or shall require medical attendance during the same period.
2. Physical injuries which do not prevent the offended party from engaging in his
habitual work nor require medical assistance.
3. Ill-treatment of another by deed without causing any injury.
NOTA BENE:
Incapacity of injured party lasted for 9 days or shall require medical attendance during the
same period. Or even if such injury does not prevent the offended party form engaging in his
habitual work nor require medical attendance.
Punished also is the act of ill-treating another by deed without causing injury.
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.
Illustration:
If Hillary slaps Monica and told her You choose your seconds . Let us meet behind the
Quirino Grandstand and see who is the better and more beautiful between the two of
us, the crime is not ill-treatment, slight physical injuries or slander by deed; it is a
form of challenging to a duel. The criminal intent is to challenge a person to a duel.

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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.
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.

Jurisprudential Trend in PHYSICAL INJURIES (2000-2007)


Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably calculated
to produce the death of the victim by adequate means. We cannot infer intent to kill from the appellant's act of
hitting Piamonte in the head with a lead pipe. In the first place, wounds were not shown to have been inflicted
because of the act. Secondly, absent proof of circumstances to show the intent to kill beyond reasonable doubt,
this Court cannot declare that the same was attendant.
o
When the offender shall ill-treat another by deed without causing any injury, and without causing
dishonor, the offense is Maltreatment under Article 266, 98 par. 3 of the Revised Penal Code. It was
beyond reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any
injury. As we have earlier stated, no proof of injury was offered. Maltreatment is necessarily included in
Murder, which is the offense charged in the Information.
o
We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and essential
element of attempted or frustrated homicide or murder is the assailant's intent to take the life of the
person attacked. 93 Such intent must be proved clearly and convincingly, so as to exclude reasonable
doubt thereof. 94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the
victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the
injuries are inflicted by him on the victim.
The only injury attributable to Li is the contusion on the victims right arm that resulted from Li striking Arugay
with a baseball bat. In view of the victims supervening death from injuries which cannot be attributed to Li
beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the

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realm of speculation. When there is no evidence of actual incapacity of the offended party for labor or of the
required medical attendance, the offense is only slight physical injuries.
However, we are not convinced that appellants should be held liable for frustrated murder. The evidence
presented by the prosecution failed to show conclusively that the wounds inflicted on Anthony were fatal or
serious. Dr. Jose Aladin Bongco, the doctor who had attended to Anthony at the Amang Rodriguez Medical Center,
opined that all of the latter's wounds "can be fatal," 32 implying that the former was not sure of their gravity. The
extent of the medical treatment Dr. Bongco gave the victim was limited to first aid stopping the flow of blood
from the wounds as the latter had refused further medical examination and treatment.
o
In the absence of more convincing evidence, we hold that the prosecution failed to prove that appellants
had fatally wounded Anthony Villanueva. Thus, they should be held liable only for slight physical injuries
under Article 266 of the Revised Penal Code. 35 This is because his injuries lasted less than nine days.

ARTICLE 266-A

RAPE
RA 8353
AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE
RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS
1)
By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present. (Statutory
Rape)
2)
By any person who, under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting:
a. his penis (man) into another person's (man or woman) mouth or anal orifice, OR
b. any instrument or object (by a man or woman) , into the genital or anal orifice of
another
person(man or woman)
NOTA BENE:
In the crime of rape, any circumstances which qualifies the crime of rape must be allege,
otherwise, court will not impose the death penalty because the crime shall be treated only as simple
rape.
Q: when is rape qualified so that the court shall impose the penalty of reclusion perpetua to
death?
A:
1. whenever it is committed with the use of a deadly weapon OR by two or more
persons (here the weapon must be used to consummate rape)
2. when by reason or on the occasion of the rape, the victim has become insane
(people vs. cesar guy (1950s) === he raped antonietta cabahug, the woman became insane)
3. when the rape is attempted and a homicide is committed by reason of or on the
occasion thereof
(US vs Mangulabnan regarding robbery with homicide === homicide on the occasion of
robbery. The robber went inside the house and the owner of the house went up to the ceiling

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to hide. The robber fired shots in the air hitting the owner so killed. Is this robbery with
homicide? Yes, because on the occasion of robbery a person died.
Still another case decided by the SC, robber went inside the house and the owner
had a heart attack and died, this is robbery with homicide. Still another case, robber went
inside the house, the owner was about to shout for help when the robber place a bread
PANDESAL in the mouth of the owner, which cause the latter to choke to death. This is
robbery with homicide. In homicide it does not matter if the death is accidental, as long as it
occurred on the occasion of robbery. BAR: robbery was actually committed, then there
occurred an exchange of bullets. One of the companions of the culprits was hit and killed.
The crime is robbery with homicide because it does not matter who was shot or killed, even
if the person killed was one of the robbers. If a person dies in the occasion of robbery, the
crime is robbery with homicide. SO APPLY THE SAME PRINCIPLES IN THE CRIME OF
ATTEMPTED RAPE AND HOMICIDE === example: the would-be rapist entered in the
room of the woman, attempted to rape her, but she escaped by jumping out of the window
which killed her. The crime is attempted rape with homicide. Another example: a person
attempted to rape the woman, the latter shouted. So he shot her but she wasnt hit, the
bullet hit someone else. The crime is attempted rape with homicide.)

4. when by reason or on the occasion of the rape, homicide is committed


NOTA BENE:
Relationship of the victim and the culprit, and age of woman must be allege in the
information, otherwise, death will not be imposed. According to the SC, the accused is entitled to
know the cause and accusation against him. he pleaded not guilty to the allegation which
constitutes simple rape, not qualified rape. So even if proven, if not allege, the crime is simple rape .
(mentioned in cases decided by SC year 1999-2000)

Under the new rape law, a husband can be charged of rape by a wife.
NOTA BENE:
In rape cases the victim is entitled to moral damages as an additional award to the victim aside
from the indemnity as the court may deem as just without the need of pleading (allegation) or
proof. Indeed the conventional requirement of allegata et probata in civil law should be dispensed
with in criminal prosecutions for rape with the civil aspect included therein since no appropriate
pleadings have been filed wherein such allegations can be made.
SEE RA 7610 if the victim is a minor
CASES:
People vs. Joven de la Cuesta (1999)
Definition of guardian = it is restrictive since it refers to a legal or judicial guardian. This
must be construed as such in order for the death penalty to be imposed in compliance with RA
7659. The mere fact that the mother of the victim asked Joven to look after her child while she is
away did not constitute the relationship of guardian-ward as contemplated by the law. He was
allowed to stay in the rented room for free of charge. At most he was a mere custodian or caretaker
of the child on whom he exercise limited authority for a temporary period.
People vs. Lorenzo Andaya
Use of a deadly weapon = the victim here is deprived of reason, suffering from mental
abnormality. The accused here offered marriage. The offer of marriage is an implied admission of
guilt.
People vs. Ffelixberto Fraga y Failon (2000)
Use of a deadly weapon = it must be used to commit rape.
Andal vs. People (1999)

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SC rejected argument about DNA test as a means of identification. DNA testing of semen of
the accused to test whether it matched with that found in the victims vagina is not necessary.
Presence of positive identification is there.
People versus Vicente Valle (2000)
Res gestae in rape = accused asked for forgiveness, an admission of guilt.
People vs. Juan Mangasen
Rape by Common law =
People vs. Sharif Ali (1999)
Iranian national who brought a woman to his apartment and he used a weapon. He didnt
want the woman to leave the apartment. SC said forcible abduction is absorbed in the crime of
rape if the main objective of the appellant is to rape the victim. Appellant used the knife NOT to
consummate the crime the crime of rape but to threaten Gina (victim) not to leave the bedroom
where she was locked up.
SC held that behavioral psychology teaches us that people in similar situations react
dissimilarly. There is no standard human behavior when confronted with shocking experiences/
incidents. The workings of the human mind when place under emotional stress are unpredictable.
This court indeed has not laid down any rule on how a rape victim should behave immediately
after she has been abused. This experience is relative and may be dealt with in any way by the
victim depending on the circumstances. Thus, physical resistance is not the sole test to determine
whether or not a woman involuntary succumb to the hands of the accused particularly when the
accused employed drugs in order to rape the victim in an unconscious state.
PEOPLE vs. ESTEBAN VICTOR y PENIS
G.R. No. 127903. July 9, 1998
Furthermore, it is a reputable precept that testimonies of rape victims who are young or of
tender age are credible. The revelation of an innocent child whose chastity was abused deserves
full credit. Courts usually lend credence to the testimony of a young girl especially where the facts
point to her having been a victim of sexual assault. For sure, the victim would not make public the
offense, undergo the trouble and humiliation of a public trial and endure the ordeal of testifying to
all its gory details if she had not in fact been raped, for no decent Filipina would publicly admit she
had been raped unless it was the truth. As a rule, a victim of rape will not come out in the open if
her motives were not to obtain justice. The willingness of the complainant to face police
investigators and to submit to physical examination is a mute but eloquent testimony, of the truth
of her complaint.
People vs. Restituto Manghuyog
Execution of an affidavit of desistance filed after the institution of a criminal action of crimes
against chastity, even if done in an express pardon cannot be a ground to dismiss it.
PEOPLE vs. FERMIN IGAT
G.R. No. 122097. June 22, 1998
Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is
addressed to the victim and is therefore subjective, it must be viewed in light of the victim's
perception and judgment at the time of the commission of the crime. It is enough that the
intimidation produced fear fear that if the victim did not yield to the bestial demands of the
accused, something far worse would happen to her at that moment. Where such intimidation
existed and the victim was cowed into submission as a result thereof, thereby rendering resistance
futile, it would be the height of unreasonableness to expect the victim to resist with all her might
and strength. If resistance would nevertheless be futile because of intimidation, then offering none
at all does not mean consent to the assault so as to make the victim's submission to the sexual act
voluntary.
In any event, in a rape committed by a father against his own daughter, as in this case, the
former's moral ascendancy or influence over the latter substitutes for violence or intimidation.

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People vs. Samuel Burse


Rape with mutilation = the accused struck the victim with a bolo three times on the face and
left her for dead. The victim sustained her wounds only as a result of a clear attempt of the accused
to kill her and cover up his misdeed. The injury thus suffered by the complainant should not be
taken as a circumstance ( the mutilation) which would cause to raise the penalty to death but
should rightly be taken up unabsorbed in the crime of frustrated murder. No specific description
having been given by the law to the word mutilation. Therefore it should be understood in its
ordinary and generic usage. Webster dictionary defines mutilation as cutting off or permanently
destroying an essential part of the body. Black defines mutilation in its criminal law concept as one
that would deprive a person of the use of any lose of those limbs which may be useful to him.
PEOPLE vs. JOSE DELEVERIO
G.R. Nos. 118937-38. April 24, 1998
The mandatory death penalty is imposed under the first case, immediately above, when the
victim is under eighteen years of age and the offender is "a parent, ascendant, step parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim." The trial court has thus held incorrectly in considering
appellant, who is legally married to Roxan's natural grandmother, as among those named in the
enumeration. Appellant is merely a step-grandparent who obviously is neither an "ascendant"
nor a "step-parent" of the victim.
Therefore, the crime of rape is not qualified.
ALONTE vs. SAVELLANO JR., NBI and PEOPLE
G.R. No. 131652. March 9, 1998
Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not
contain any statement that disavows the veracity of her complaint against petitioners but merely
seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other
reasons.
Secondly, an affidavit of desistance by itself, even when construed as a pardon in the socalled "private crimes," is not a ground for the dismissal of the criminal case once the action has
been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute
evidence whose weight or probative value, like any other piece of evidence, would be up to the
court for proper evaluation.
People vs. Honorable Lorenzo Veneracion
Rape with homicide is punished with the mandatory penalty of death but the judge here
refuse to impose it because it was contrary to his religious belief. SC said You must impose the
supreme penalty of death regardless of religious belief.
PEOPLE vs. SILVINO SALARZA, JR.
G.R. No. 117682. August 18, 1997
The complainant here is a british stage and television actress. She took her vacation in
palawan. The son of the owner (ricky) of the beach house became her boyfriend. The tourist guide
(salarsa) who is the friend of the boyfriend-owner fell in love. One night there was a beach party,
they drank. Afterwards, the woman went to her cottage, took a shower. The accused entered the
womans room and began to undress the woman, the woman slightly spread her legs as she was
half asleep. Then servino mounted, then he whispered saril, this is not ricky( the boyfriend)
People v. Almasin
Rape of a mental retardee. SC, she is qualified if he can make known her perception to
others as long as he can communicate.

Prior to the amendment of the law on rape, a complaint must be filed by the offended
woman. The persons who may file the same in behalf of the offended woman if she is

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a minor or if she was incapacitated to file, were as follows: a parent; in default of


parents, a grandparent; in default or grandparent, the judicial guardian.
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
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.
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.
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.

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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 30,000.00, with or without evidence of any moral
damage. But there are some cases where the court awarded only P 20,000.00.
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 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.
Is there a complex crime under Article 48 of kidnapping with rape? Read kidnapping.

Jurisprudential Trend in RAPE (2000-2007)


On the degree of force as an element of rape, this Court finds it "not necessary to show that irresistible force or
intimidation accompanied the crime of rape; it suffices to show that force or intimidation was present and did
result in the accused copulating with the offended woman against her will."
o
[T]he victim's character in rape is immaterial. Even the fact that the offended party may have been of
unchaste character constitutes no defense to the charge of rape, provided that it is proved that the
illicit relations described in the complaint was committed with force and violence.

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The defense goes on to harp on AAA's delay in reporting the incidents. 41 The oft-repeated observation
of this Court that it is not unusual for a rape victim to conceal the incident at least momentarily should
address this.

The appellants point to the unusual manner of commission of the crime, involving as it did not only the sexual
assault by the man but also the participation of his wife, to discredit the complainant's testimony. Under the
Revised Penal Code, 29 however, an accused may be considered a principal by direct participation, by
inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided of course
a man is charged together with her. Thus, in two cases this Court convicted the woman as a principal by direct
participation since it was proven that she held down the complainant in order to help her co-accused spouse
consummate the offense.
o
In People v. Villamala, 30 the Court found the husband and wife guilty for raping their neighbor and
"kumare" in this factual setting, viz: the wife visited the victim at her home on the pretext of inquiring
as to the whereabouts of her husband. Once inside, she whistled for her husband and he immediately
appeared at the doorstep. The wife then suddenly pinned her "kumare" to the floor. The husband
forcefully removed the victim's skirt and panties, removed his shorts, placed himself on top of the victim
and consummated the rape. In the more recent People v. Saba, 31 the accused married couple
victimized a fourteen (14) year-old epileptic who stayed at their home for treatment by the wife who
was a reputed healer. On the pretext of conducting a healing session, the wife ordered the victim to lie
down on the floor then pinned the victim's hands to the floor and covered her mouth while her husband
removed his pants and briefs and the victim's panties and raped the young girl. These two cases show not
only the possibility but the reality of rape committed by a woman together with a man.
o
The appellants argue that the prosecution failed to present any evidence of aberrant sexual behavior on
their part that would justify the trial court's conclusion that the rape occurred as described by the
complainant. This argument must fail since the sexual habits of the appellant-spouses do not constitute
an essential element of the offense of rape. The prosecution only has to prove that there was carnal
knowledge of the complainant and that it was done against her will. The trial court's evaluation of the
evidence resulted in the appellants' conviction and a close scrutiny of its judgment leads us to affirm it.
o
Each and every charge of rape is a separate and distinct crime; hence, each of the eight other rape
charges should be proven beyond reasonable doubt. The prosecution is required to establish, by the
necessary quantum of proof, the elements of rape for each charge. Baby Jane's testimony on the first
rape charge was explicit, detailing the participation of each appellant in the offense and clearly
illustrating all the elements of the offense of rape. However her simple assertion that the subsequent
rapes occurred in exactly the same manner as in previous incidents is clearly inadequate and grossly
insufficient to establish to a degree of moral certainty the guilt of the appellants insofar as the eight
rape charges are concerned. Her testimony was too general as it failed to focus on material details as to
how each of the subsequent acts was committed. Even her testimony on cross-examination did not add
anything to support her accusations of subsequent rape. Thus, only the rape alleged to have been
committed on September 1992 was proven beyond reasonable doubt and the appellants may be
penalized only for this offense.
o
Article 335 of the Revised Penal Code provides that whenever the crime of rape is committed with the
use of a deadly weapon the penalty is reclusion perpetua to death. The use by the appellants of a bladed
weapon, alleged in the Amended Complaint and sufficiently proven in this case, qualifies the rape. In
the absence of any mitigating or aggravating circumstance, the penalty that the appellants shall suffer is
the lesser penalty of reclusion perpetua.
In reviewing rape cases, this Court is guided by three principles: (1) an accusation of rape can be made with
facility and while the accusation is difficult to prove, it is even more difficult for the person accused, although
innocent, to disprove; (2) considering the intrinsic nature of the crime, only two persons being usually involved,
the testimony of the complainant should be scrutinized with great caution; (3) the evidence for the prosecution
must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence
for the defense.
o
In rape cases, the testimony of the victim alone, if credible, is sufficient to convict the accused of the
crime. The medical certificate is presented merely to corroborate the victim's declaration that she was
sexually molested. In fact, what is more telling in the medical findings proffered in evidence by the
prosecution is the presence of hymenal lacerations in different positions in the victim's genitalia which is
the best physical evidence of her forcible defloration.
o
A rape victim can easily identify her assailant especially if he is known to her because during the rape,
she is physically close to her assailant, enabling her to have a good look at the latter's physical features.
The doctrine consistently upheld by this Court is that alibi cannot prevail over the positive identification
of the accused as the perpetrator of the crime. It is inherently a weak defense; and unless supported by
clear and convincing evidence, it cannot prevail over the positive declaration of the victim.

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In the present case, no birth certificate or any similar authentic document was presented and offered in
evidence to prove Rachel's age. The only evidence of the victim's age is her testimony 57 and that of her
mother's (Sally de Guzman's) Sinumpaang Salaysay, 58 which was adopted as part of the latter's direct
testimony, 59 attesting to the fact that her five-year-old daughter was raped.
Sally's testimony regarding Rachel's age was insufficient, since Rachel was alleged to be already five
years old at the time of the rape, and what is sought to be proved is that she was then less than seven
years old. Her testimony will suffice only if it is expressly and clearly admitted by the accused. There is
no such express and clear declaration and admission of the appellant that Rachel was less than seven
years old when he raped her. Moreover, the trial court made no finding as to the victim's age.
It must be stressed that the severity of death penalty, especially its irreversible and final nature once
carried out, makes the decision-making process in capital offenses aptly subject to the most exacting
rules of procedure and evidence. 60 Accordingly, in the absence of sufficient proof of Rachel's minority,
the appellant cannot be convicted of qualified rape and sentenced to suffer the death penalty.
However, Sally's testimony that her daughter was five years old at the time of the commission of the
crime is sufficient for purposes of holding the appellant liable for statutory rape, or the rape of a girl
below twelve years of age. Under the second paragraph of Article 266-B, in relation to Article 266-A(1)
(d), carnal knowledge of a woman under twelve years of age is punishable by reclusion perpetua. Thus,
the appellant should be sentenced to suffer reclusion perpetua, and not the death penalty.

The elements of rape under the above provisions are: (1) the offender had carnal knowledge of a woman; and (2)
such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise
unconscious; or when the victim is under 12 years of age or is demented.
o
We find, however, that the trial court erred in concluding that the crime committed by appellant is
statutory rape. While the Information alleges that Imee was 10 years old when the crime was committed
on February 6, 1994, the prosecution failed to present her Certificate of Live Birth or any other evidence
to prove her age.
o
As regards appellant's second assigned error, we agree with his contention that the trial court erred in
imposing upon him the penalty of death. The trial court considered the use of a piece of wood as a
deadly weapon and, therefore, a qualifying circumstance. Suffice it to state that, as a rule, in order that
a qualifying or aggravating circumstance may be appreciated, it must be alleged in the Information and
proven during trial. 39 Here, no such circumstance has been alleged in the Information which justifies
the imposition of death. Thus, the proper imposable penalty is reclusion perpetua as provided in Art. 335
of the Revised Penal Code, as amended, quoted earlier.
The gravamen in the crime of rape is carnal knowledge. The prosecution must prove beyond reasonable doubt
that the accused had sexual contact with the alleged victim. This, the prosecution failed to do in this case. While
the complainant testified that appellant forced her into sexual intercourse on two occasions, the physical
evidence clouds her testimony. Records show that the complainant was examined by several doctors. However,
only the reports of the last two doctors who examined her were offered as evidence. The report of Dr. Annabel
Soliman, Medico-Legal Officer of the NBI shows that there were no signs of injury in complainant's genitalia. In a
later examination, however, conducted by Dr. Manuel Aves of the Bulacan Provincial Crime Laboratory Office, a
healed superficial hymenal laceration at 12:00 position was found. Dr. Aves explained that the location of the
laceration excludes sexual intercourse as possible cause thereof. Dr. Aves explained that lacerations found on the
upper portion of the hymen are normally caused by instrumentation but not by sexual contact.
o
We are not unmindful of the Court's ruling that the absence of laceration in the hymen does not preclude
the existence of rape and that when a woman states that she has been raped, she states all that is
necessary to prove the offense. These principles, however, do not in themselves support a conviction.
They must be weighed with the presumption of innocence of the accused. To support a finding of guilt, it
is necessary that the complainant's story be believable in itself.
o
In rape cases, it is the primordial duty of the prosecution to present its case with clarity and persuasion
to the end that conviction becomes the only logical and inevitable conclusion. Proof beyond reasonable
doubt is required. Although the law does not demand absolute certainty of guilt, it nonetheless requires
moral certainty to support a judgment of conviction. Where the inculpatory facts admit of several
interpretations, one consistent with accused's innocence and another with his guilt, the evidence thus
adduced fails to meet the test of moral certainty and it becomes the constitutional duty of the Court to
acquit the accused.
As the trial court ruled, the evidence for the prosecution has clearly established that Marietta, in all three
instances, was forced to submit to appellant's bestial desires, the latter employing force and intimidation. In all
the three (3) rape incidents, the appellant used physical violence upon the person of Marietta to consummate his
purpose of copulating with the latter. Marietta put up a struggle every time the accused forced himself upon her,
but in all instances, she was inevitably subdued by his strength. As we held in People vs. Baltazar, 14 nowhere is it

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required in law or jurisprudence that a woman must offer tenacious resistance to a sexual assault. The law does
not impose on the rape victim the burden of proving resistance. In rape, the force and intimidation must be
viewed in the light of the victim's perception and judgment at the time of the commission of the crime and not by
any hard and fast rule. 15 Not all offended parties in the crime of rape react the same way. There are those who
even freeze because of fright and shock, unable to move nor shout. We cannot fault the latter for not putting up a
"tenacious" resistance. In the case at bar, we find that Marietta put up a good fight, but because of her mature
age and the disparity between her and appellant's physical strength, she was easily subdued by her attacker.
o
It is settled that a person accused of rape can be convicted solely on the testimony of the victim if the
trial court finds said testimony to be credible, natural, convincing, and consistent with human nature
and the normal course of things.
o
On the other hand, evidence for the defense was anchored solely on the claim of the appellant that he
and Merly were sweethearts. He alleged that the several incidents of sexual intercourse between him
and Marietta, twice a week on the average, were consensual. We agree with the finding of the trial
court that this "sweetheart defense" put up by the appellant was preposterous and concocted merely as
an afterthought. No other evidence than the self-serving testimony of the appellant was presented to
support such a defense, like love letters, pictures, mementos, etc. The supposedly corroborative
testimony of Leticia dela Cruz did not say much. All she stated was that Marietta always gave money to
the appellant since 1998, that Marietta always asked her to call the appellant, and that Marietta got
angry with the appellant when the latter lived in with her friend Dory. 18 None of the latter statements
could prove that Marietta and the appellant were sweethearts. As the trial court correctly observed, if
the appellant were really her boyfriend, then Marietta would not have gone to the extent of bringing to
court this criminal action which inevitably exposed her to the humiliation of recounting in public how
she was abused. Unless truly wronged, she would not have instituted these cases. That she was already
fifty-one (51) years old rendered her exposure to a public trial of rape all the more embarrassing and
painful.
o
The prosecution, through Marietta's testimony, has clearly established that on at least three (3)
occasions August 16, 1998, October 3, 1998, and March 15, 1999 the appellant Eduardo Fabian y Mari
forced himself on Marietta and succeeded in having carnal knowledge with her. He employed physical
force and intimidation, and even threatened her that he would kill her and her son if she reports to the
police. The foregoing satisfy all the elements of rape as defined and penalized in Section 2 of Republic
Act No. 8353, and warrant the imposition of the penalty of imprisonment of reclusion perpetua upon the
accused for each of the three (3) counts of rape.
Time and again, we stress the verity that in incestuous rape where the father/stepfather exercises moral
dominance over his daughter/stepdaughter, the victim by the sheer force of this moral influence is reduced to a
docile creature, vulnerable and submissive to the sexual depredations of her tormentor.
o
In a rape committed by a father against his own daughter, the former's moral ascendancy and influence
over the latter substitutes for violence and intimidation. That ascendancy or influence necessarily flows
from the father's parental authority, which the Constitution and the laws recognize, support and
enhance, as well as from the children's duty to obey and to observe reverence and respect towards their
parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are
recognized by law. Abuse of both by a father can subjugate his daughter's will, thereby forcing her to do
whatever he wants.
o
Appellant scrapes the bottom of the barrel in making much of Gemma's statement that he was on top of
her for an hour. Indeed, it is too much to expect of a minor rape victim to give a precise recollection of
the rape incident when at the time of the sexual assault her tender mind was not only bombarded by a
mishmash of confusing emotions but, more so, every sinew of her young body was committed to ward off
her attacker in a vain attempt to defend her purity and honor. Understandably, Gemma might have lost
all bearings of time for the few harrowing minutes in the hands of her father seemed eternity to her.
o
The rule is that when a rape victim's testimony is straightforward and candid, unshaken by rigid crossexamination and unflawed by inconsistencies or contradictions in its material points, the same must be
given full faith and credit. 20 It is simply too improbable for the minor victims, who are guileless and
innocent in the ways of the world, to brazenly impute a crime as serious as rape to the man, they call
their father, if it were not true.
In any criminal prosecution, it is necessary that every essential ingredient of the crime charged must be proved
beyond reasonable doubt in order to overcome the constitutional right of the accused to be presumed innocent.
Jenny's simple declaration that she was raped is not evidence but simply a conclusion. The principle that "when a
woman declares that she has been raped she says in effect all that is necessary to mean that she has been raped,"
no longer holds. This means that the prosecution must still prove the elements of the crime of rape, and it is not
enough for a woman to claim she was raped without showing how the crime was specifically committed.

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In the earlier case of People v. Mendoza, 21 the accused was acquitted by virtue of the victim's plain
statement that she was "raped" on 11 August 1995 without offering further details on how the alleged
incident was carried out. This Court declared therein that "(w)hether or not he raped her is the fact in
issue which the court must determine based on the evidence offered. Testimony to that effect is not
evidence, but simply a conclusion, the proof of which is the very purpose of the trial . . . It is not
competent for a witness [in this case Michelle] to express an opinion, conclusion or judgment thereon."
The certificates of live birth 22 prove that at the time of the rape incidents Gemma, Jean and Jenny
were minors. With the concurrence of their minority and relationship 23 with appellant, the trial court
correctly found appellant guilty beyond reasonable doubt of qualified rape.

Well-settled is the rule that no woman would concoct a story of defloration, allow an examination of her private
parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and
her sole motivation was not to have the culprit apprehended and punished. A young girl's revelation that she has
been raped, coupled with her voluntary submission to medical examination and her willingness to undergo public
trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily
dismissed as a mere concoction. 22 Needless to say, it is settled jurisprudence that testimonies of child-victims
are given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she
says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges
of truth and sincerity.
o
In rape trials, the issue, more often than not, is the credibility of the victim. But when a rape victim's
testimony is straightforward, unflawed by any material or significant inconsistency, then it deserves full
faith and credit. If found credible, the declaration of facts given by the offended party alone would be
sufficient to sustain a conviction.
o
Conspiracy was correctly appreciated by the trial court because the individual acts of the accused when
taken together as a whole showed that they acted in concert and cooperated to achieve the same
unlawful objective. 27 The evidence clearly shows that conspiracy existed between the three accused
shown by their obvious concerted efforts to perpetrate, one after the other, the crime of rape. 28 It was
established during the trial that while accused-appellant raped the victim, his co-accused covered the
latter's mouth or restrained her hands. We have repeatedly held that in cases of multiple rape, each of
the defendants is responsible not only for the rape committed by him but also for those committed by
the others. 29 Accused-appellant, therefore, is responsible not only for the rape committed personally
by him but also for the two other counts of rape committed by his co-accused.
o
Similarly, it is highly inconceivable that complainant would file rape charges against accused-appellant
just because her father will scold her for failing to go home one night. No motive was given for her to
falsely impute a heinous crime against accused-appellant. As held in the case of People v. Dimailig: 33
"Where there is no evidence that the principal witness for the prosecution was actuated by improper
motive, the presumption is that she was not so actuated and her testimony is entitled to full faith. It has
been repeatedly held that no young and decent Filipina would publicly admit that she was ravished and
her honor tainted unless the same were true, for it would be instinctive on her part to protect her honor
and obtain justice for the wicked acts committed upon her."
o
We cannot sustain the accused-appellant's claim that the absence of lacerations and contusions in the
victim's genitalia negate the commission of rape. We have consistently held that the rupture of the
hymen or laceration of the vagina is not an essential element of rape, for mere knocking at the door of
the pudenda by the accused's penis suffices to constitute the crime of rape. 37 Penile invasion, as it has
often been held, necessarily entails contact with the labia where even the briefest of contact under
circumstances of force, intimidation or unconsciousness, even without laceration of the hymen, is
deemed to be rape in our jurisprudence. Hence, neither the penetration of the penis beyond the lips of
the vagina nor the rupture of the hymen is indispensable to justify conviction. 38 A medical examination
is not even indispensable in a prosecution for rape. The lone testimony of the victim, if credible, is
sufficient to sustain a conviction.

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Republic Act 8505


Rape Shield Law
Providing assistance to rape victim and establishing rape crisis center in every
province.
A. Salient features of this law:
If the victim of rape is a woman, the investigator should be woman also. If it
reaches the fiscal/prosecutor, the same must also be a woman. If possible, the judge
should also be a woman.
Q: Who are qualified to run the center?
A: DILG, NGO and those expert in cases in handling rape cases
B. Purpose of the center;
1. To provide victims with psychological counseling; medical services and medical attention;
provided with lawyer and ensuring the privacy of the victim
2. Duty of the police officer to refer the rape case to the prosecutor
3. If the victim is a woman, the one who will examine her must also be a woman
4. Women desk in every police precinct in the country
C. Protective Measure:
1. Complainants right to privacy
2. Identity of the parties shall not be disclosed
Republic Act 7877
SEXUAL HARASSMENT ACT
Q: Who are liable?
A: employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor,
coach, trainor, or any other person:
1. Who having authority, influence and moral ascendancy
- it is taking advantage of superiority. It is an abuse of power.
2. Demands, requests or otherwise requires any sexual favor from the other
e.g.; Manager and Employee to have a date
- it could be sexual intercourse or fondling of body parts
3. Regardless if the demand is accepted
How Committed:
A. Work-related or employment environment
(1)
The sexual favor is made as a condition in the hiring or in the employment,
re-employment or continued employment of said individual, or in granting said
individual favorable compensation, terms, conditions, promotions, or privileges; or the
refusal to grant the sexual favor results in limiting, segregating or classifying the
employee which in any way would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;
(2)
The above acts would impair the employee's rights or privileges under
existing labor laws; or
(3)
The above acts would result in an intimidating, hostile, or offensive
environment for the employee.

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B. Education OR Training environment


(1)
Against one who is under the care, custody or supervision of the offender;
(2)
Against one whose education, training, apprenticeship or tutorship is
entrusted to the offender;
(3)
When the sexual favor is made a condition to the giving of a passing grade,
or the granting of honors and scholarships or the payment of a stipend, allowance or
other benefits, privileges, or considerations; or
(4)
When the sexual advances result in an intimidating, hostile or offensive
environment for the student, trainee or apprentice.
A. Scope of RA 7877
a. work,
b. education and
c. training related activities
B. Sexual Harassment can be committed by a man against a woman, woman against a man
- Its all about power!!!
C. In rape, abuse of authority must be grave if acquitted he can still be prosecuted under Sexual
Harassment.
D. Rape v. Sexual Harassment
1)
2)
3)
SH if a
4)

Rape ( c ) there must be grave abuse of authority, while in SH only use of authority
SH limited to work, educational and training related while in rape it is not.
Rape as a general rule must be consummated. No sexual intercourse no rape. In
woman declines the demand there is still consummated SH.
SH there is demand or request while in rape there is none. (Diretso hansak )

E. See RA 7610 if the victim is a minor


Q: May an Employee be charged with Sexual Harassment by another Employee?
A: Yes, as long as there is moral ascendancy.
Q: May a person not having sexual intercourse with a woman be held guilty of Sexual Harassment?
A: Yes, because in Sexual Harassment there is a principal by direct participation & principal by
induction.
Any person who directs or induces another to commit any act of sexual harassment as herein
defined, or who cooperates in the commission thereof by another without which it would not have been
committed, shall also be held liable under this Act.

Q: What is the liability of the Employer or the head officer in an education and training institution?
A: If there is Sexual Harassment and no immediate action is taken, he is SOLIDARILY liable for
damages.
This refers to civil liability.

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TITLE NINE
CRIMES AGAINST PERSONAL LIBERTY & SECURITY
Chapter One
CRIMES AGAINST LIBERTY
Section 1-Illegal Detention
ARTICLE 267
KIDNAPPING AND SERIOUS ILLEGAL DETENTION
Elements:
1.
2.
3.
4.

Offender is a private individual;


He kidnaps or detains another, or in any other manner deprives the latter of his
liberty;
The act of detention or kidnapping must be illegal;
In the commission of the offense, any of the following circumstances is present:
a.
The kidnapping lasts for more than 3 days;
b.
It is committed simulating public authority;
c.
Any serious physical injuries are inflicted upon the person kidnapped or
detained or threats to kill him are made; or
d.
The person kidnapped or detained is a minor, female, or a public officer.

If there is any crime under Title IX which has no corresponding provision with crimes
under Title II, then, the offender may be a public officer or a private person. If there is
a corresponding crime under Title II, the offender under Title IX for such similar crime is
a private person.
When a public officer conspires with a private person in the commission of any of the
crimes under Title IX, the crime is also one committed under this title and not under
Title II.
Illustration:
If a private person commits the crime of kidnapping or serious illegal detention, even
though a public officer conspires therein, the crime cannot be arbitrary detention. As
far as that public officer is concerned, the crime is also illegal detention.
In the actual essence of the crime, when one says kidnapping, this connotes the idea
of transporting the offended party from one place to another. When you think illegal
detention, it connotes the idea that one is restrained of his liberty without necessarily
transporting him from one place to another.
The crime of kidnapping is committed if the purpose of the offender is to extort ransom
either from the victim or from any other person. But if a person is transported not for
ransom, the crime can be illegal detention. Usually, the offended party is brought to a
place other than his own, to detain him there.
When one thinks of kidnapping, it is not only that of transporting one person from one
place to another. One also has to think of the criminal intent.

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Forcible abduction -- If a woman is transported from one place to another by virtue of


restraining her of her liberty, and that act is coupled with lewd designs.
Serious illegal detention If a woman is transported just to restrain her of her liberty.
There is no lewd design or lewd intent.
Grave coercion If a woman is carried away just to break her will, to compel her to
agree to the demand or request by the offender.
In a decided case, a suitor, who cannot get a favorable reply from a woman, invited
the woman to ride with him, purportedly to take home the woman from class. But
while the woman is in his car, he drove the woman to a far place and told the woman
to marry him. On the way, the offender had repeatedly touched the private parts of
the woman. It was held that the act of the offender of touching the private parts of the
woman could not be considered as lewd designs because he was willing to marry the
offended party. The Supreme Court ruled that when it is a suitor who could possibly
marry the woman, merely kissing the woman or touching her private parts to compel
her to agree to the marriage, such cannot be characterized as lewd design. It is
considered merely as the passion of a lover. But if the man is already married, you
cannot consider that as legitimate but immoral and definitely amounts to lewd design.
If a woman is carried against her will but without lewd design on the part of the
offender, the crime is grave coercion.
Illustration:
Tom Cruz invited Nicole Chizmacks for a snack. They drove along Roxas Boulevard,
along the Coastal Road and to Cavite. The woman was already crying and wanted to
be brought home. Tom imposed the condition that Nicole should first marry him.
Nicole found this as, simply, a mission impossible. The crime committed in this case is
grave coercion. But if after they drove to Cavite, the suitor placed the woman in a
house and would not let her out until she agrees to marry him, the crime would be
serious illegal detention.
If the victim is a woman or a public officer, the detention is always serious no matter
how short the period of detention is.
Circumstances which make illegal detention serious
(1)

When the illegal detention lasted for three days, regardless of who the offended
party is;

(2)

When the offended party is a female, even if the detention lasted only for
minutes;

(3)

If the offended party is a minor or a public officer, no matter how long or how
short
the detention is;

(4)

When threats to kill are made or serious physical injuries have been inflicted;
and

(5)

If it shall have been committed simulating public authority.

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Distinction between illegal detention and arbitrary detention


Illegal detention is committed by a private person who kidnaps, detains, or otherwise
deprives another of his liberty.
Arbitrary detention is committed by a public officer who detains a person without legal
grounds.
The penalty for kidnapping is higher than for forcible abduction. This is wrong because
if the offender knew about this, he would perform lascivious acts upon the woman and
be charged only for forcible abduction instead of kidnapping or illegal detention. He
thereby benefits from this absurdity, which arose when Congress amended Article 267,
increasing the penalty thereof, without amending Article 342 on forcible abduction.
Article 267 has been modified by Republic Act No. 7659 in the following respects:
(1)

Illegal detention becomes serious when it shall have lasted for more than three
days, instead of five days as originally provided;

(2)

In paragraph 4, if the person kidnapped or detained was a minor and the


offender was anyone of the parents, the latter has been expressly excluded
from the provision. The liability of the parent is provided for in the last
paragraph of Article 271;

(3)

A paragraph was added to Article 267, which states:


When the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture, or dehumanizing
acts, the maximum penalty shall be imposed.
This amendment brings about a composite crime of kidnapping with homicide
when it is the victim of the kidnapping who was killed, or dies as a consequence
of the detention and, thus, only one penalty is imposed which is death.

Article 48, on complex crimes, does not govern in this case. But Article 48 will govern
if any other person is killed aside, because the provision specifically refers to victim.
Accordingly, the rulings in cases of People v. Parulan, People v. Ging Sam, and other
similar cases where the accused were convicted for the complex crimes of kidnapping
with murder have become academic.
In the composite crime of kidnapping with homicide, the term homicide is used in
the generic sense and, thus, covers all forms of killing whether in the nature of murder
or otherwise. It does not matter whether the purpose of the kidnapping was to kill the
victim or not, as long as the victim was killed, or died as a consequence of the
kidnapping or detention. There is no more separate crime of kidnapping and murder if
the victim was kidnapped not for the purpose of killing her.
If the victim was raped, this brings about the composite crime of kidnapping with rape.
Being a composite crime, not a complex crime, the same is regarded as a single
indivisible offense as in fact the law punishes such acts with only a single penalty. In a
way, the amendment depreciated the seriousness of the rape because no matter how

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many times the victim was raped, there will only be one kidnapping with rape. This
would not be the consequence if rape were a separate crime from kidnapping because
each act of rape would be a distinct count.
However for the crime to be kidnapping with rape, the offender should not have taken
the victim with lewd designs as otherwise the crime would be forcible abduction; and if
the victim was raped, the complex crime of forcible abduction with rape would be
committed. If the taking was forcible abduction, and the woman was raped several
times, there would only be one crime of forcible abduction with rape, and each of the
other rapes would constitute distinct counts of rape. This was the ruling in the case of
People v. Bacalso.
In People v. Lactao, decided on October 29, 1993, the Supreme Court stressed that the
crime is serious illegal detention if the purpose was to deprive the offended party of
her liberty. And if in the course of the illegal detention, the offended party was raped,
a separate crime of rape would be committed. This is so because there is no complex
crime of serious illegal detention with rape since the illegal detention was not a
necessary means to the commission of rape.
In People v. Bernal, 131 SCRA 1, the appellants were held guilty of separate crimes of
serious illegal detention and of multiple rapes. With the amendment by Republic Act
No. 7659 making rape a qualifying circumstance in the crime of kidnapping and serious
illegal detention, the jurisprudence is superseded to the effect that the rape should be
a distinct crime. Article 48 on complex crimes may not apply when serious illegal
detention and rape are committed by the same offender. The offender will be charged
for the composite crime of serious illegal detention with rape as a single indivisible
offense, regardless of the number of times that the victim was raped.
Also, when the victim of the kidnapping and serious illegal detention was subjected to
torture and sustained physical injuries, a composite crime of kidnapping with physical
injuries is committed.
What is the act?
- kidnapping or detaining another or in any manner deprive him of his liberty
a.

Penalty of Reclusion Perpetua to death in the ff. Cases:


1. lasted for more than 3 days
2. committed by simulating public authority
3. serious physical injury inflicted upon the person detained
4. threats to kill have been made
5. victim is a minor except if the accused is the parent, female or public officer

b. When is death mandatory?


1. kidnap or detention is for the purpose of extorting ransom
- in kidnapping with ransom we follow the Linberg doctrine in US.
Case:
X, a girl inside a taxi was approached by a robber. Robber asked for money
or else
I will kill you. Then he commanded the taxi taking the victim to a far away place.
Is it
kidnapping for ransom?
A: No, because in kidnap for ransom, somebody must be kidnapped and
money is

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demanded in exchange for the freedom of the person detained.


2. when the victim is killed or dies as a consequence.
3. If raped in the course of the kidnapping
4. If subjected to torture or dehumanizing acts

Jurisprudential Trend in KIDNAPPING


Thus, the applicable rule when the abduction and killing happened before December 31, 1993, as in the present
case, is:
a) Where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his
abductor, the crime committed was the complex crime of kidnapping with murder under Art. 48 of the Revised
Penal Code, as kidnapping of the victim was a necessary means of committing the murder.
b) Where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an
afterthought, two (2) separate crimes of kidnapping and murder were committed.
o
The trial court found that "the kidnapping was committed for the purpose of extorting ransom from the
victim." 8 Similarly, the Court of Appeals noted that the obvious purpose of Libertador's abduction "was
to coerce him to pay campaign money" 9 and that "the acts of killing and burying him were incidental
and could have been used only as a means absolutely to compel the payment of the ransom money, and
to avoid the discovery of the crime." 10 However, both courts found that the crime committed was the
complex crime of kidnapping with murder.
o
We do not agree. We find that two separate crimes of kidnapping for ransom and murder were
committed.
o
The present case falls under paragraph (b) of the foregoing rule that where the victim was kidnapped
not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes
of kidnapping and murder were committed.
o
In the instant case, the records clearly show the elements of kidnapping, to wit: On March 26, 1992,
appellant together with six (6) other armed men abducted Libertador for the purpose of extorting
ransom money. They blocked Libertador's convoy and demanded payment of campaign fee. However,
when the payment was not forthcoming right away, they hogtied Libertador and brought him to the
mountains. On April 4, 1992, Libertador's relatives paid the ransom money of P50,000.00 to appellant's
group at Brgy. Kurtingan, Sta. Cruz, Occidental Mindoro, but the latter reneged on its promise to release
Libertador and killed him instead.
o
The penalty for kidnapping for the purpose of extorting ransom from the victim or any other person
under Article 267 of the Revised Penal Code is death. However, the imposition of the death penalty has
been prohibited in view of the passage of R.A. No. 9346, An Act Prohibiting the Imposition of the Death
Penalty in the Philippines. Thus, in lieu thereof, the penalty of reclusion perpetua should be imposed on
appellant, without eligibility for parole.
o
On the other hand, as the crime was committed prior to the amendment of Article 248 of the Revised
Penal Code by R.A. No. 7659, the appropriate penalty for Murder is reclusion temporal in its maximum
period, to death. Under Article 64 (1) of the Revised Penal Code, in cases in which the penalties
prescribed by law contain three periods, whether it be a single divisible penalty or composed of three
different penalties, and there are neither aggravating nor mitigating circumstances that attended the
commission of the crime, the penalty prescribed by law in its medium period shall be imposed, which in
this case is reclusion perpetua. The Indeterminate Sentence Law is not applicable when the penalty
actually imposed is reclusion perpetua.
The elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he kidnaps or
detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be
illegal; and (d) in the commission of the offense, any of the four (4) circumstances mentioned above is present.
o
There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged
Marijoy and Jacqueline into the white car, beat them so they would not be able to resist, and held them
captive against their will. In fact, Jacqueline attempted to free herself twice from the clutches of
appellants the first was near the Ayala Center and the second was in Tan-awan, Carcar but both
attempts failed. Marijoy was thrown to a deep ravine, resulting to her death. Jacqueline, on the other
hand, has remained missing until now.
o
Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. In People vs. Ramos,

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131 citing Parulan vs. Rodas, 132 and People vs. Mercado, 133 we held that this provision given rise to a
special complex crime, thus:
"Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the
kidnapped victim was subsequently killed by his abductor, the crime committed would either be a
complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, or two (2) separate
crimes of kidnapping and murder. Thus, where the accused kidnapped the victim for the purpose of
killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of
kidnapping with murder under Art. 48 of the Revised Penal Code, as the kidnapping of the victim was a
necessary means of committing the murder. On the other hand, where the victim was kidnapped not for
the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of
kidnapping and murder were committed.
However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph
which provides
When the victim is killed or dies as a consequence of the detention, or is raped or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed.
This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping
with murder or homicide. It effectively eliminated the distinction drawn by the courts between those
cases where the killing of the kidnapped victim was purposely sought by the accused, and those where
the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently,
the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of
whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or
homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be
punished as a special complex crime under the last paragraph of Art. 267, as amended by RA No. 7659."
The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped
by the gang. In committing the crimes, appellants subjected them to dehumanizing acts.
Dehumanization means deprivation of human qualities, such as compassion. 134 From our review of the
evidence presented, we found the following dehumanizing acts committed by appellants: (1) Marijoy and
Jacqueline were handcuffed and their mouths mercilessly taped; (2) they were beaten to severe
weakness during their detention; (3) Jacqueline was made to dance amidst the rough manners and lewd
suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van; and (5) until
now, Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the
victims were raped, that Marijoy was killed and that both victims were subjected to dehumanizing acts,
the imposition of the death penalty on the appellants is in order.
Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of
kidnapping and serious illegal detention with homicide and rape in Criminal Case No. CBU-45303
wherein Marijoy is the victim; and simple kidnapping and serious illegal detention in Criminal Case No.
CBU-45304 wherein Jacqueline is the victim.
A discussion on the nature of special complex crime is imperative. Where the law provides a single
penalty for two or more component offenses, the resulting crime is called a special complex crime.
Some of the special complex crimes under the Revised Penal Code are (1) robbery with homicide, 135 (2)
robbery with rape, 136 (3) kidnapping with serious physical injuries, 137 (4) kidnapping with murder or
homicide, 138 and (5) rape with homicide. 139 In a special complex crime, the prosecution must
necessarily prove each of the component offenses with the same precision that would be necessary if
they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended
Article 267 of the Revised Penal Code by adding thereto this provision: "When the victim is killed or dies
as a consequence of the detention, or is raped, or is subjected to torture or dehumanizing acts, the
maximum penalty shall be imposed; and that this provision gives rise to a special complex crime. In the
cases at bar, particularly Criminal Case No. CBU-45303, the Information specifically alleges that the
victim Marijoy was raped "on the occasion and in connection" with her detention and was killed
"subsequent thereto and on the occasion thereof." Considering that the prosecution was able to prove
each of the component offenses, appellants should be convicted of the special complex crime of
kidnapping and serious illegal detention with homicide and rape. It appearing from the overwhelming
evidence of the prosecution that there is a "direct relation, and intimate connection" 140 between the
kidnapping, killing and raping of Marijoy, rape cannot be considered merely as an aggravating
circumstance but as a component offense forming part of the herein special complex crime. It bears
reiterating that in People vs. Ramos, 141 and People vs. Mercado, 142 interpreting Article 267, we ruled
that "where the person killed in the course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer
be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a special
complex crime under the last paragraph of Article 267." The same principle applies here. The kidnapping
and serious illegal detention can no longer be complexed under Article 48, nor be treated as separate
crime but shall be punished as a special complex crime. At any rate, the technical designation of the

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crime is of no consequence in the imposition of the penalty considering that kidnapping and serious
illegal detention if complexed with either homicide or rape, still, the maximum penalty of death shall be
imposed.
MURDER VS. KIDNAPPING: In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for
kidnapping. In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of
a loved one, the motive is revenge.
o
In this case, it is evident on the fact of the Information that the specific intent of the malefactors in
barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the
attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely
incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty
and that killing him was merely incidental to kidnapping. Irrefragably then, the crime charged in the
Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268
thereof.
The elements of the crime of kidnapping and serious illegal detention are the following: (a) the accused is a
private individual; (b) the accused kidnaps or detains another, or in any manner deprives the latter of his liberty;
(c) the act of detention or kidnapping is illegal; and (d) in the commission of the offense, any of the four
circumstances mentioned [in Art. 267, Revised Penal Code] is present. Moreover, the imposition of the death
penalty is mandatory if the kidnapping was committed for the purpose of extorting ransom. In the instant case,
appellants cannot escape the penalty of death, inasmuch as it was sufficiently alleged and indubitably proven that
the kidnapping had been committed for the purpose of extorting ransom.
In this case, Julie, a minor, was not locked up. However, she was seized and taken from her house through force
and dragged to the mountain. Since then, she was restrained of her liberty by and kept under the control of
accused-appellant and Bermas. She was prevented from going back home for a period of about six days. Patently
then, accused-appellant is guilty of kidnapping and illegally detaining Julie. The crime was aggravated by dwelling
because Julie was taken from their house by accused-appellant and Bermas.
KIDNAPPING AND SERIOUS ILLEGAL DETENTION; ESSENCE AND ELEMENTS OF CRIME. The essence of the crime of
kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code is the
actual deprivation of the victim's liberty coupled with proof beyond reasonable doubt of an intent of the accused
to effect the same. It is thus essential that the following be established by the prosecution: (1) the offender is a
private individual; (2) he kidnaps or detains another, or in any other manner deprives the latter of his liberty; (3)
the act of detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the four
circumstances enumerated in Article 267 be present. But if the kidnapping was done for the purpose of extorting
ransom, the fourth element is no longer necessary.
o
The prosecution has established beyond reasonable doubt that the kidnapping was committed "for the
purpose of extorting ransom" from Alexander, as to warrant the mandatory imposition of the death
penalty. For the crime to be committed, at least one overt act of demanding ransom must be made. It is
not necessary that there be actual payment of ransom because what the law requires is merely the
existence of the purpose of demanding ransom. In this case, the records are replete with instances when
the kidnappers demanded ransom from the victim.
o
THAT THE CRIME WAS POLITICALLY MOTIVATED NOT SUBSTANTIATED. As regards the argument that the
crime was politically motivated and that consequently, the charge should have been rebellion and not
kidnapping, we find the same likewise to be without merit. As held in Office of the Provincial Prosecutor
of Zamboanga Del Norte vs. CA, the political motivation for the crime must be shown in order to justify
finding the crime committed to be rebellion. Merely because it is alleged that appellants were members
of the Moro Islamic Liberation Front or of the Moro National Liberation Front does not necessarily mean
that the crime of kidnapping was committed in furtherance of a rebellion. Here, the evidence adduced is
insufficient for a finding that the crime committed was politically motivated. Neither have the
appellants sufficiently proven their allegation that the present case was filed against them because they
are rebel surrenderees. This court has invariably viewed the defense of frame-up with disfavor. Like the
defense of alibi, it can be just as easily concocted.
KIDNAPPING AND SERIOUS ILLEGAL DETENTION; ELEMENTS. For the accused to be convicted of kidnapping, the
prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (a) the offender
is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c)
the act of detention or kidnapping must be illegal; and (d) in the commission of the offense any of the following
circumstances is present: (1) the kidnapping or detention lasts for more than three days; (2) it is committed by

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simulating public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained
or threats to kill him are made; or (4) the person kidnapped or detained is a minor, female, or a public officer. If
the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial.
Likewise, if the victim is kidnapped and it legally detained for the purpose of extorting ransom, the duration of
his detention is immaterial. The essential elements for this crime is the deprivation of liberty of the victim under
any of the above-mentioned circumstances coupled with indubitable proof of intent of the accused to effect the
same. There must be a purposeful or knowing action by the accused to forcibly restrain the victim coupled with
intent.
o
WHERE MOTIVE IS EXTORTION OF RANSOM. To warrant the imposition of the death penalty for the
crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond
reasonable doubt the following: (a) intent on the part of the accused to deprive the victim of his liberty;
(b) actual deprivation of the victim of his liberty; (c) motive of the accused, which is extortion of
ransom from the victim or any other person. In kidnapping or serious illegal detention for ransom, the
purpose of extorting ransom is a qualifying circumstance which must be alleged in the Information and
proved by the prosecution as the crime itself by words and overt acts of the accused before, during and
after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of
ransom is necessary for the crime to be committed. Although kidnapping for a certain purpose is a
qualifying circumstance, the law does not require that the purpose be accomplished. Ransom employed
in the law is so used in its common or ordinary sense: a sum of money or other thing of value, price, or
consideration paid or demanded for redemption of a kidnapped or detained person, a payment that
releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the
kidnapper or a third person as a condition for the release of the victim.
o
SLIGHT ILLEGAL DETENTION; ELUCIDATED. The appellant is guilty of slight illegal detention under
Article 268 of the Revised Penal Code. While the epigraph or title of the article mentions only slight
illegal detention, kidnapping committed in connection with the lower offense of slight illegal detention
is also covered by the article. The felony has the following essential elements: 1. That the offender is a
private individual. 2. That he kidnaps or detains another, or in any other manner deprives him of his
liberty. 3. That the act of kidnapping or detention is illegal. 4. That the crime is committed without the
attendance of any of the circumstances enumerated in Art. 267. The crime of slight illegal detention is
consummated upon the occurrence of all the elements thereof. "A day," in the last paragraph of Article
268 of the Revised Penal Code, should be understood as twenty-four hours, to be counted from the
deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: "el plazo de
los tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta cesare.
The rescue or escape of the victim within three days from his kidnapping and detention is not an
exempting circumstance. The voluntary release by the offender of the victim within three days from his
detention, without the offender having attained his purpose and before the institution of criminal
proceedings against him for slight illegal detention, is not an exempting circumstance; it merely serves
to reduce the penalty to prision mayor in its maximum and medium periods and a fine not exceeding
P700.
o
KIDNAPPING AND SLIGHT ILLEGAL DETENTION; BOTH COMMITTED IN CASE AT BAR. Although the
appellant and his co-conspirators kidnapped George and Christopher on the same occasion and from the
same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised
Penal Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and
his co-conspirators were animated by two sets of separate criminal intents and criminal resolutions in
kidnapping and illegally detaining the two victims. The criminal intent in kidnapping Christopher was
separate from and independent of the criminal intent and resolution in kidnapping and detaining George
for less than three days. In the mind and conscience of the appellant, he had committed two separate
felonies; hence, should be meted two separate penalties for the said crimes: one for kidnapping under
Article 267 of the Revised Penal Code and another for slight illegal detention under Article 268 of the
same code. The felony of slight illegal detention is necessarily included in the crime of kidnapping for
ransom; thus, the appellant may be convicted of the former crime under an Information for kidnapping
for ransom.
If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial.
Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his
detention is immaterial. The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers to
the gender of the victim and not of the offender. The essence of the crime of kidnapping is the actual deprivation
of the victim's liberty under any of the above-mentioned circumstances, coupled with indubitable proof of intent
of the accused to effect the same. There must be a purposeful or knowing action by the accused to forcibly
restrain the victim because taking coupled with intent completes the offense. Kidnapping which involves the
detention of another is by its nature a continuing crime.

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LACK OF CONSENT, PRESUMED WHERE THE VICTIM IS A FIVE-YEAR OLD MINOR. The victim's lack of
consent is also a fundamental element of kidnapping. The involuntariness of the seizure and detention is
the very essence of the crime. The general rule is that the prosecution is burdened to prove lack of
consent on the part of the victim. However, where the victim is a minor especially if she is only five
years old, lack of consent is presumed. She is incompetent to assent to seizure and illegal detention. In
this case, Angela was merely five years old when she was kidnapped; thus incapable of giving consent.
The consent of such child could place the appellants in no better position than if the act had been done
against her will. The appellants cannot rely on Angela's initial willingness to go along with them to the
restaurant.
KIDNAPPING AND ILLEGAL DETENTION, NOT NEGATED BY THE FACT THAT THE VICTIM WAS TAKEN CARED
OF. Although Angela was free to roam around in the "dirty house," to draw and to watch television
during the entire period of her detention, and was regularly fed and bathed, the appellants are
nevertheless guilty of kidnapping and illegally detaining the five-year-old child. As Judge McGill of the
United States Court of Appeals said in United States v. McCabe, "to accept a child's desire for food,
comfort as the type of will or consent contemplated in the context of kidnapping would render the
concept meaningless."
SERIOUS ILLEGAL DETENTION INCLUDES DEPRIVATION OF LIBERTY IN WHATEVER FORM AND FOR
WHATEVER LENGTH OF TIME. In People v. Baldogo, this Court held that illegal serious detention under
Article 267 of the Revised Penal Code as amended, includes not only the imprisonment of a person but
also the deprivation of her liberty in whatever form and for whatever length of time. It includes a
situation where the victim cannot go out of the place of confinement or detention or is restricted or
impeded in his liberty to move. In this case, the door to the office of appellant Bisda was locked while
Angela was detained therein. Even if she wanted to escape and go home, Angela, at her age, could not
do so all by herself. During the period of her confinement, Angela was under the control of the
appellants. The helpless child was waiting and hoping that she would be brought home, or that her
parents would come and fetch her.
QUALIFYING CIRCUMSTANCES; EXTORTING RANSOM, ELUCIDATED. The purpose of the offender in
extorting ransom is a qualifying circumstance which may be proved by his words and overt acts before,
during and after the kidnapping and detention of the victim. Neither actual demand for nor actual
payment of ransom is necessary for the crime to be committed. Ransom as employed in the law is so
used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or
consideration paid or demanded for redemption of a kidnapped or detained person, a payment that
releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the
kidnapper as a condition for the release of the victim.

VICTIM'S LACK OF CONSENT; PRESENT ALTHOUGH VICTIM INITIALLY CONSENTED TO GO WITH OFFENDER The
victim's lack of consent is also a fundamental element of kidnapping and serious illegal detention. The
involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have
inceptually consented to go with the offender to a place but the victim is thereafter prevented, with the use of
force, from leaving the place where he was brought to with his consent and is detained against his will, the
offender is still guilty of kidnapping and serious illegal detention. To exonerate the appellants for the simple
reason that the victim had initially voluntarily agreed to go with one of them, is for the Court to reward them
simply because they were ingenious enough to conceal their true motive from the victim until he was transported
to another place.
o
KIDNAPPING AND SERIOUS ILLEGAL DETENTION FOR RANSOM; COMMITTED ALTHOUGH THERE WAS
FAILURE TO RECEIVE RANSOM MONEY. The trial court correctly ruled that the appellants kidnapped and
illegally detained the victim for the purpose of extorting ransom. Although the appellants failed to
receive any ransom money for the victim's release, the crime of kidnapping and serious illegal detention
for ransom was nonetheless committed. In People vs. Pagalasan, this Court ruled that to warrant the
imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the
prosecution must prove beyond reasonable doubt: (a) intent on the part of the accused to deprive the
victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused,
which is ransom for the victim or other person for the release of the victim. The purpose of the offender
in extorting ransom may be proved by his words and overt acts before, during and after the kidnapping
and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for
the crime to be committed. Ransom, as employed in the law is so used in its common or ordinary sense;
meaning, a sum of money or other thing of value, price, or consideration paid or demanded for
redemption of a kidnapped or detained person, a payment that releases from captivity. It may include
benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of
the victim.

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ACTUAL CONFINEMENT OR RESTRAINT OF THE VICTIM OR THE DEPRIVATION OF HIS LIBERTY IS THE PRIMARY
ELEMENT OF CRIME. The primary element the crime is the actual confinement or restraint of the victim or the
deprivation of his liberty. It is not necessary for the victim to be locked up or placed in an enclosure; it is
sufficient for him to be detained or deprived of his liberty in any manner.
o
THE VICTIM WAS EFFECTIVELY RESTRAINED HIS LIBERTY; CASE AT BAR. In the present case, the
testimony and sworn statement of the victim showed that he was effectively restrained of his liberty. He
candidly testified that he went with the appellant in the belief that, with his mother's permission, they
were going to get a baggage from the airport and bring it back to their house in Antipolo. When they
proceeded instead to Pasig, the victim thought they would just be dropping by. When the appellant told
him to stay in the house in Pasig while he and his friend, Isagani Maago, instead "got the baggage," the
victim immediately asked permission to go home. To make him stay, the appellant assured him twice
that they would return to Antipolo together with the baggage - first, on the night of January 30, 1994
and second, in the morning of January 31, 1994. In addition to being tricked by the appellant to stay in
Bayani's house in Pasig, the victim was also so afraid of Bayani that he could not leave the place even if
he wanted to. Bayani had a knife in his waist even while sleeping and even threatened the victim "ang
pumapasok dito ay di na nakalabas ng buhay. " Bayani guarded him on the two occasions that appellant
left, even accompanying the victim to urinate outside the house. Given all these circumstances, the
victim was effectively restrained of his liberty the primary element of the offense of kidnapping and
serious illegal detention.
o
HE VICTIM VOLUNTARILY WENT WITH THE ACCUSED ON FALSE INDUCEMENT; CASE AT BAR The appellant
contends that there was no kidnapping because the victim voluntarily went with him. This contention
holds no water. In the case of People vs. Santos, we ruled that the fact that the victim voluntarily went
with the accused did not remove the element of deprivation of liberty because the victim went with the
accused on a false inducement without which the victim would not have done so. Such is the situation in
the present case the victim, a boy 16 years of age, would not have voluntarily left with the appellant
if not for the false assurance that his mother had supposedly permitted him to accompany the appellant
to the airport "to get the baggage" and bring it back to the victim's house.
o
CARRYING AWAY OF THE VICTIM CAN BE MADE FORCIBLY OR FRAUDULENTLY. It is important to
emphasize that, in kidnapping, the victim need not be taken by the accused forcibly or against his will.
What is controlling is the act of the accused in detaining the victim against his or her will after the
offender is able to take the victim in his custody. In short, the carrying away of the victim in the crime
of kidnapping and serious illegal detention can either be made forcibly or fraudulently.
ESSENCE OF KIDNAPPING IS THE ACTUAL DEPRIVATION OF VICTIM'S LIBERTY COUPLED WITH INDUBITABLE PROOF OF
INTENT OF ACCUSED TO EFFECT SUCH DEPRIVATION. [F]or kidnapping to take place, it is not necessary that the
victim be placed in an enclosure; neither is it necessary that the detention be prolonged. However, the essence of
kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of the intent of the
accused to effect such deprivation. A review of the narration of events by the prosecution itself shows that it was
not able to establish actual confinement, detention or restraint of the child. The testimonies of its witnesses did
not adequately prove that she had been forcefully transported, locked up or restrained. Likewise, the prosecution
failed to establish that appellant had intended to deprive the girl of her liberty. Neither the testimony of her
mother nor that of the barangay tanod showed what his intent was. Even less helpful was the testimony of the
child herself. Certainly, we take note of her tender age, but this consideration cannot be used to supply her
testimony with the details that would make appellant liable for the serious crime he was charged with. Absent any
indubitable proof of his purposeful or knowing action to restrain her forcibly, there can be no taking coupled with
intent to complete the commission of the offense.
The primary element of the crime of kidnapping is actual confinement, detention and restraint of the victim. 8
There must be a showing of actual confinement or restriction of the victim, and that such deprivation was the
intention of the malefactor. An accused is liable for kidnapping when the evidence adequately proves that he
forcefully transported, locked up or restrained the victim. 9 There must exist indubitable proof that the actual
intent of the malefactor was to deprive the victim of his liberty. The restraint of liberty must not arise merely as
an incident to the commission of another offense that the offender primarily intended to commit.
o
In this case, actual restraint of the victim's liberty was evident from the moment appellant clubbed the
victim on the neck. Appellant not only restricted Pati's freedom of movement, but appellant's blow also
disabled the victim from resisting appellant's criminal design. This facilitated accused's capacity to carry
physically Pati to an unknown place. Obviously, this constitutes forcible taking. The circumstances
surrounding Pati's disappearance are indubitable proof of a purposeful or knowing action by appellant to
forcibly take the victim. The actual taking indicated an intention to deprive the victim of his liberty. 11
In this case, appellant and his companions actually took Pati away. For kidnapping to exist, it is not
necessary to place the victim in an enclosed place. It is sufficient to detain or deprive him in any manner
of his liberty.

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Criminal Law Review 2008

KIDNAPPING FOR RANSOM; ACTUAL DEMAND FOR PAYMENT OF RANSOM, NOT REQUIRED; PAYMENT OF RANSOM AND
RECOVERY OF VICTIM, NOT A DETERRENT FOR A FINDING OF CULPABILITY FOR THE CRIME; CASE AT BAR. We do
not find any