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As discussed by Judge D
What are the rights of the accused that cannot be waived? years or less, they cannot be
- Those rights that affect public policy cannot be arrested while congress is in
waived. session.
The right to be informed of the nature and - RA 75 mandates that foreign
cause of the accusation against him. diplomatic representatives
including their domestic servants
Characteristics of our penal laws: cannot be arrested if they commit a
1. Generality or General crime.
- GR: Our penal laws are binding against all - CASE IN POINT: SHAUF VS CA,
persons who live or sojourn in the 191 SCRA 713
Philippines.
- For example a Korean stabs another Korean. Law on Preferential Application
Can he be held liable? R.A. 75
Yes. He can be charged with homicide - Foreign diplomatic representatives such as
or murder because he is in the ambassadors cannot be arrested. This includes their domestic
Philippines and committed crime in the servants. They cannot be arrested when they commit a crime.
Philippines. The only thing we can do is to declare them as persona non
- What about the military killing another grata "unwelcomed visitor". They will then be sent back to
military or soldier? Can he be charged with their country because they are immune from arrest and
murder or homicide? immune from suit.
Soldiers or militaries can be charged in
our civilian courts or under the military Shauf vs. Court of Appeals 191 SCRA 713
court martial. (kung ni ingun ko tan.awa, basaha gyud na kay mu gawas na
The civilian courts have concurrent - It involves grave oral defamation.
jurisdiction. A case can be filed against
them in the civilian courts or in the Another exception to the characteristic of generality for
military court martial provided it is persons exempt from our criminal laws are those covered
service connected. So if a soldier under Public International Law. There are foreigners who are
committed a crime which is service also exempt from arrest by reason of PIL. Such as:
connected, he can be tried in the civilian 1. Sovereigns and Heads of State.
court or in the court martial. - If Obama visits and he commits a crime. He
CASE IN POINT: NAVALES VS cannot be arrested. He is immune from suit. Chiefs of state
ABAYA, GR NO 162318, OCT 2004 such as kings cannot be arrested when they commit a crime.
- EXP:
a) By virtue of treaties or treaty 2. Ambassadors, ministers, ministers plenipotentiary,
stipulation with another country minister residents and charge de affairs
exempting their nationalities from - As a rule, a consul is not immune from suit.
operation of our penal laws They can be arrested and charged unless there is a treaty in
- If the Philippines has a treaty with effect exempting them from arrest or suit.
another country exempting their - do you remember when there was a Chinese
nationalities from operation of our (Consul) who killed someone here in the lighthouse? He was
penal laws, that should be only sent home. There were lawyers who wondered why he
respected. was not charged. Maybe there was a request from the Chinese
- Ex, the Military Bases Agreement. embassy that they will be the ones to take care of him.
Before, if the American soldiers
commit a crime in the Philippine, 2. Territoriality
we do not have jurisdiction. - Our law is like a dog. A dog is only aggressive if it is
- Now, we have the Visiting Forces within your premises. If you take it outside, its tail will be
Agreement. Under the agreement, between its legs. Same as a ―bogoy2x‖ in the street, he will
they are only allowed to use our only be tough in his own street.
military bases. Under the VFA, if
the American soldiers commit a G.R. - Our penal laws are only effective within our
crime, they should be tried in the territory
Philippines. Example:
b) The law of preferential application An OFW married here in the Philippines. Nakig "iring²"
- Example, the congressmen and in Singapore or Hong Kong. Can he be charged of
senators, if they commit a crime adultery/concubinage? No, because our penal laws are only
penalized by imprisonment of 6 effective within our territory. If he goes out of the territory
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CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
then our penal laws are no longer effective. If he gets married using money other than its
there, it is supposed to be bigamy but considering that our intended purpose will make you
laws are territorial. He cannot be charged here in the liable for malversation although the
Philippines. So if your husband is overseas and has someone crime was committed abroad.
else there, you should do the same here. But if he has a live in
partner there and brings her here and continues their 5. A Filipino commits a crime against national
relationship because there is a thing called "forever" then he security or the law of nations.
can now be charged here. He already committed the crime - Against National Security
within our territory. - Treason, misprision of treason
- Treason is a war crime
There are exceptions to the Territoriality principle of our penal - Only committed during war
laws - Even if you are in China and you
Stated under Article 2 of the Revised Penal Code: commit treason you are still under the
1. A person commits a crime on board a Philippine jurisdiction of the Philippine laws.
ship or airship - Crimes Against the Law of Nations
- Take note on Philippine registered not just - Piracy - is a transnational crime
Philippine owned. It is the registration that - does not have any boundary
matters. ex. Pirates of Somalia, pirates a Japanese ship and was chased
Example: towards the Philippines and was caught here, they can be tried
The crew on board an international cruise ship, in the Philippines even if there are no Filipinos involved
traversed the Pacific Ocean and then they were watching the because it involves a crime against the laws of nations.
game between OKC and GSW. They were betting with each
other and drinking intoxicating drinks. GSW won the game 3. Prospectively
and the losing party didn‘t pay his end of the bargain, so he - Penal laws will always have prospective application
was stabbed. Upon reaching the Philippines in the Cebu G.R. - Laws cannot be given retroactive effect because it
International Port, he was charged of homicide but the crime will be considered as an ex post facto law. A violation of the
was committed why the ship was on its voyage. Is he liable constitution.
even if he filed a motion to quash the information for lack of ex. The death penalty was implemented and later on
jurisdiction because at the time the crime was committed, the removed. Then it was revived again. It cannot be given
ship was still at the Pacific Ocean. retroactive effect for the persons charged of crimes during the
He is still liable because of Article 2 of the RPC. The time there was no death penalty because it will be considered
motion to quash is not meritorious due to extra-territorial an ex post facto law.
effect. It will be tried in any RTC.
Exp. When a penal law is favorable to the accused.
2. A person who forge or counterfeit Philippine - For persons sentenced for death, upon the removal of
currency. the death penalty, their sentences were reduced from death to
- Making Philippine notes in Hong Kong will reclusion perpetua or life imprisonment.
still be within the jurisdiction of the
Philippines because of extra-territorial Exp. To the Exp - The retroactive effect will not be
jurisdiction. applied if the accused is a habitual offender.
- When the law expressly provides
3. Introduction of these counterfeit or fake notes in the that the law will not apply to
Philippines. pending cases.
- It is not necessary that you are the one
making the fake notes but as long as you are Interpretation of Penal Laws
bringing them inside the country you are - Strictly against the government
liable. - Favorable to the accused
weight and the prosecution is not able to present - TN: basis is the registration and not the ownership of
evidence of proof beyond reasonable doubt. The the ship or vessel
accused must be acquitted. - Suppose the Phil registered ship is anchored in
Malaysia. While the Phil registered ship is anchored
The Revised Penal Code in Malaysia a crew member, a Filipino killed another
History member of the crew. He was charged with homicide.
When the Philippines was under Spanish rule, He filed a motion to quash arguing that the court
there was a penal code. It was copied from the Spaniards. In doesn‘t have jurisdiction because the crime was
the 1930's, when the Philippines was under American committed in Malaysia. Do we have jurisdiction? Yes,
command, the penal code which was used during Spanish but TN that the crime was also committed in
reign was modified and is now the Revised Penal Code. The Malaysia. Malaysia or where that country is anchored
wordings in the RPC especially in the penalties are latin or may take jurisdiction of the offense. It can also be
Spanish terms. Even though there are a lot of amendments, it is punishable in their country. So once that country
still basically the same. There is a proposal though to enact a where the crime is committed will take jurisdiction,
Code of Crimes. It codifies the RPC and the Special Penal laws. we will not anymore take jurisdiction since he is
already imprisoned there.
The Revised Penal Code is divided into 2: - Crimes committed on board a Philippine registered
Book I - Modes and Circumstances Affecting ship while in a territory of another country is still
Criminal Liability triable in the Phils if such country does not take
Book II - Crimes and their Penalties jurisdiction of such crime
- If foreign registered anchored in our country, do we
Art. 2. Application of its provisions. — Except as provided in have jurisdiction? Of course!
the treaties and laws of preferential application, the - If foreign registered merchant vessel, our courts
provisions of this Code shall be enforced not only within the have jurisdiction over crimes committed on board
Philippine Archipelago, including its atmosphere, its interior such vessel, over crimes committed in our territory
waters and maritime zone, but also outside of its jurisdiction, unless the crime committed merely affects the
against those who: internal management of the vessel.
1. Should commit an offense while on a Philippine - CASE: US vs Look Chow, US vs Fowler
ship or airship ; - If foreign warship like an American warship who will
2. Should forge or counterfeit any coin or currency visit the Philippines and then there will be a crime
note of the Philippine Islands or obligations and that will be committed on board such ship. Do we
securities issued by the Government of the have jurisdiction? We do not have jurisdiction over
Philippine Islands; foreign warship on crimes committed on board that
3. Should be liable for acts connected with the ship within our territory.
introduction into these islands of the obligations
and securities mentioned in the presiding number; Title One
4. While being public officers or employees, should FELONIES AND CIRCUMSTANCES
commit an offense in the exercise of their functions; WHICH AFFECT CRIMINAL LIABILITY
or Chapter One
5. Should commit any of the crimes against national
security and the law of nations, defined in Title One FELONIES
of Book Two of this Code. Art. 3. Definitions. — Acts and omissions punishable by law
are felonies (delitos).
- about the territorial application of our penal laws
- it shall be enforced not only within our country, not Felonies are committed not only be means of deceit
only within the Phil archipelago, including its (dolo) but also by means of fault (culpa).
atmosphere, its interior waters and maritime zone but
also outside of its jurisdiction There is deceit when the act is performed with
- this is so because of the extra territorial application of deliberate intent and there is fault when the wrongful act
our penal laws results from imprudence, negligence, lack of foresight, or
- GR: it is only applicable within our territory lack of skill.
- Exception: extra territorial application
- EX: kill someone at Scarborough Shoal, who has - felony: refers to an act or omission in violation of the
jurisdiction, Phils or China? RPC
- if we refer to felony then those are those acts
1. Should commit an offense while on a Philippine penalized under the RPC
ship or airship ; - crime: a broad term; it includes felony
- there must be an act or omission and such act or freedom. He could not be held liable. He
omission must be penalized by the RPC committed a crime under the compulsion of
- there is no crime if there is no law penalizing an act or an uncontrollable fear.
omission o A person committing a crime under the
compulsion of an uncontrollable fear or
Felonies are committed not only be means of deceit irresistible fear, like when a gun is pointed at
(dolo) but also by means of fault (culpa). your head or one is hitting your head with a
- deceit otherwise known as dolo (the latin term), fault gun if you won‘t do it. A person is reduced
the latin term is culpa to a mere instrument. He has no option, he
- So is there a crime when you are doing nothing? has no choice. He cannot be held criminally
- EX of crimes when you are doing nothing and yet one liable due to one of the requisites. In order
is liable/omission penalized by law for a person to be held criminally liable for a
o Cashier of the government and you do not crime committed by means of dolo a person
issue a receipt. So you are doing nothing. must have freedom.
You are liable for the non-issuance of a - Dolo or deliberate intent. One has the intention to
receipt. commit a crime.
o A law enforcer arrested a criminal
inflagrante delicto (caught him in the act of 2. Intelligence
committing a crime). One is mandated, since o in order to be held liable, a person
he is the arresting officer to file a case against committing a crime by means of dolo must
the arrested person within the period of 12, have intelligence.
24, 36 hours. If one fails to do that, held o If it is found out that at the time the person
liable for arbitrary detention. committed the crime, he does not have
- A person is criminally liable for an act or omission in intelligence, there is complete absence of
violation of the RPC. intelligence he is not liable.
- In order to be held criminally liable, there must be an o Imbecile(a person who is chronologically
act or omission committed. adult but with a mental ability which is
- Requisites of Felony: equivalent to a child who is 6/7 years old) or
1. Act committed or omission incurred completely insane person cannot be held
2. The action must be punishable by the RPC liable
3. The act or omission incurred must be o Being insane at the commission of the
committed by either dolo or by culpa crimeand or being an imbecile is not
- Requisites/Elements for dolo or malice: criminally liable due to the absence of
1. Freedom intelligence
o if a person kills another person but if he did o RA 9344, Juvenile Justice and Welfare Code:
it out of uncontrollable fear or irresistible a child who is 15 years old or below is
force then that person is not liable because exempt from criminal liability because the
he committed the crime without freedom. law considers that child to be absent of
He did it under of the compulsion of an intelligence. He does not have the capacity to
irresistible force or uncontrollable fear. determine what is right and wrong (rationale
o 7 years ago in the news. Somewhere in of the law).
Mabolo, the employer went home drunk at
around 11 PM. He called his driver and his 3. Intent/Criminal Intent
helper. He got his gun then he ordered both o in order to be held criminally liable, a person
of them to take off their clothes. He then must have criminal intent
pointed his gun to the two and told the o TN: intent is a mental activity
driver to have a sexual intercourse with the o How would you know once a person wanted
helper. So the helper was raped by the to steal or kill? That is presumed.
driver. The driver did it because if he won‘t o A person who kills another person without
then he‘ll be killed. The helper, after the act any justifiable reason is presumed to have
ran and escaped. She went to the Mabolo criminal intent. But the presumption is
police station and reported the incident rebuttable. If that person can present
regarding the employer and the driver. The evidence, which would prove that he does
employer as well as the driver were charged not have any criminal intent, then he will be
with rape. If you were the counsel for the acquitted.
driver, what will be your defense? (How will o US vs Ah Chong: There was a case wherein
you argue the case that your client is not there was a roommate. The roommate went
liable) He performed the act without any out late at night and there was another guy
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CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
who was left since he just wanted to sleep. 2. There must be no malice or fault or
He wanted that when his roommate came carelessness on the part of the accused.
home he didn‘t have to stand and open him Ah Chong case: was the accused
but he was also scared that they might be careful? Yes because he asked,
robbed. So he preferred that he not lock the ―who are you?‖ But there was no
door but he placed a chair to block the door. answer.
If the roommate enters the room he would - Requisites for the crime of culpa or fault:
just push the chair but if another person does 1. Freedom
then he would also be aware. While he was 2. Intelligence
asleep a person who was attempting to 3. Negligence or Imprudence
slowly open the door awakened him. He - Ex: a person is driving his car. Then while driving, he
called out and asked, ―Who are you?‖ But received a message so he read it but he didn‘t notice
there was no answer so he stood up and that it was already the red light so he hit a pedestrian.
went closer to the door. He was then hit by Is there freedom? Yes there is freedom. Is there
the chair so he stabbed the person who hit intelligence? Of course. Would an insane person be
him because he thought it was an intruder or able to drive? But was there criminal intent on his
robber. But when he turned on the lights, it part to kill the pedestrian? None but there is
was his roommate who was only trying to negligence or imprudence. There was lack of
scare him. The roommate died. He was foresight. Not good to tinker with phone while
charged with homicide and convicted. The driving. It is the same with driving while drunk. So
case reached the SC. Is he liable? According there is negligence or imprudence on the part of the
to the SC, he is not because there was no driver thus he is liable. He is liable for a crime
criminal intent on his part. He was through culpa. He could be charged and held liable
performing a lawful act of self-defence for reckless imprudence resulting in homicide.
although there was the so-called mistake of - A crime committed with criminal intent is more
facts. serious than a crime committed with negligence.
o Mistake of fact or ignorance of facts will What is graver, one wherein you intentionally killed a
excuse a person from a criminal liability. To person or killed a person because you were negligent?
be relieved from any criminal liability, there Intentional killing.
must be no dolo or culpa on his part. There - So that is why there is a higher penalty a crime of
must be no deliberate intent to commit a murder or homicide as to reckless imprudence
crime. There must be no fault. There must be resulting to murder or homicide. The penalty for
no negligence. There must be no imprudence reckless driving resulting to murder or homicide is I
on his part in committing the act. think not over 6 years. The penalty for homicide is a
o Elements of Mistakes of Facts: minimum of 12 years and 1 day – 20 yearsor murder
1. that the accused performed an act which is a minimum of 20 years and 1 day – 40 years.
would have been lawful had the facts - To be held liable for a felony: there must be an act or
been as the accused believed them to be omission, 1st requisite. The act or omission must be
under the intention of the accused in penalized by the RPC. That the third, the act or
performing the lawful act should be omission is committed either by of dolo or culpa.
lawful
the actor performed an act which DOLO; CULPA
would have been lawful if the facts
were true as he believed them to be 1. Committed by Dolo, meaning by deliberate intent are
Ex: if it was true, as what was going called intentional crimes, whereas those
on in his head that it was really a 2. Committed by Culpa are culpable crimes.
robber that came in then attacked
him, would he be liable? No There is deceit when the act is performed with deliberate
because he was hit by the chair, intent; and
There was an unlawful aggression.
And when he stabbed the person he there is fault when the wrongful act results from
was performing a lawful act. He imprudence, negligence, lack of foresight, or lack of skill.
used mean to repel the attack.
The act of stabbing, was it lawful?
Yes because it was self-defence. Is it Actually negligence and lack of foresight are the same.
a crime to defend oneself? No.
- When you are negligent there is lack of foresight on GENERAL CRIMINAL INTENT; SPECIFIC CRIMINAL
your part. When you are imprudent that means there INTENT.
is lack of skill.
Dunay ubang kaso na aside from general criminal intent, the
Case: The Chief of police and his subordinate were executing a prosecution must also be able to prove specific criminal
warrant of arrest for a notorious criminal. Bringing the warrant intent. Again, SPECIFIC CRIMINAL INTENT.
of arrest, they went to the house were the person subject of the
arrest was. Upon reaching the house, they saw a person Usually, it‘s only the general criminal intent that is required to
sleeping lying on his side, with his back fronting them. Now be established- it is actually presumed. But there are some
believing that that person was the subject of the arrest and crimes that require proof of specific criminal intent.
considering that, that person was a notorious criminal, they
immediately fired their gun at him. It so happened that it was Example. Attempted homicide or attempted murder. So
not the person they were looking for. And so they were kung pananglitan dunggabon ka or pusposan kag baseball
charged with murder. Question, are they liable? Yes. bat diri sa ulo unsa may crime nga nacommit? Let‘s say
wala namatay.
- Now they argue that they can be liable only for
reckless imprudence resulting to homicide. Are they - That could be attempted murder or attempted
correct? No. Because they had criminal intent. Unsa homicide or
man tawn ang sala atong tawhana nga natug ra man.
They could‘ve justified the use of their firearms kung - if the wounds are serious and if it‘s not for the timely
nisukol pa to. Kung wala to nisukol, ila ta to medical assistance, ang biktima wala namatay. That
gipasukol. And bisan pa to nisukol di man justified could be frustrated homicide or frustrated murder.
nga imo patyon kay di man necessary na nga patyon.
So they are liable for Murder. - HOWEVER, in order to convict the accused of such
crime- attempted homicide, attempted murder,
- Why is it that they should be liable for Murder? Because frustrated homicide, frustrated murder, the
there is treachery. There is treachery when the victim prosecution must be able to prove the specific intent
doesn't have the opportunity to defend himself. of INTENT TO KILL.
- Why not reckless imprudence resulting to homicide? - Because if the prosecution fails to present evidence
Because when treachery is committed, it showing intent to kill on the part of the accused, the
presupposes that they committed the crime with accused cannot be convicted of frustrated homicide or
criminal intent. Because when a crime is committed frustrated murder. Bisag hapit pa na siya mamatay,
by means of culpa, the perpetrator has no any nag comatose sa hospital. Kung dili maka prove ug
criminal intent, just negligence or imprudence. specific criminal intent, the accused cannot be
convicted of frustrated homicide or frustrated murder
Case: Nay tanod natulog sya mga 2 o‘clock. Gipukaw sya sa but only of serious or less serious physical injuries or
iyang silingan kay nakakita ang silingan ug taw nga nagdrive slight physical injuries, depending upon the
ug motor and nagpabuto, so iya gipukaw to ang brgy tanod. seriousness of the wounds.
Nya ang brgy tanod, nibangon unya naa man syay pusil nga
dili ra ba lisensyado, nigawas siya unya kakita sya sa taw nga - So kanang serious physical injuries, or less serious, or
nagsakay ug motor gadala pud ug pusil. Ay iyang gipusil even slight physical injuries, nagkinahanglan ra na
dayon oi. Hala kay it so happened nga nag shooting diay. Nag siya ug general criminal intent. Pero kung mucharge
shooting ra diay to. So liable ba ang brgy tanod? na gani ka ug attempted homicide, attempted
murder, frustrated homicide, frustrated murder
- Ang panutana dira kay naa bay crime nga gicommit nagkinahanglan na na siya ug specifical criminal
katong actor. I don‘t know what happened to that intent to kill. Kasabot mo?
case. He was charged with I think it was murder or
homicide ba. So there are some crimes that require proof of specific
criminal intent otherwise the accused will not be convicted.
Remember ha, when a crime is committed by means of dolo,
criminal intent is a requisite. So if the prosecution fails to - THEFT. That requires the SPECIFIC CRIMINAL
prove that there was intent, then he would be acquitted. INTENT TO GAIN. If there is no evidence of specific
intent to gain on the part of the accused, he cannot be
convicted for theft.
Example 2: Kanang muadto ka sa airport. Kanang musakay So mao na ako buti pasabot ninyo nga dili tanan na lalaki
kag barko, musakay kag eroplano. Unya inspeksyonon imong dunay uyab na bayi. Nay uban laki dunay uyab na lalaki.
bag, muana ka ―Hinay- hinay dira mam kay naa nay bomba‖.
Dakpun ka! Dakpon ka. Are you serious with your words? - Mao na, not all mala inse are penalized by the
You were just joking! Pero ngano prisohon man ka? Revised Penal Code, some of them are penalized by
Special Laws.
- Because in an offense punishable by special law,
intent is immaterial. What is required is only the 2 Types of Felonies
fact that you committed the act prohibited by law. MALA IN SE MALA PROHIBITA
- Ang pangutana ra jud diha dili kay do you have Wrongful by nature Wrongful by virtue of a penal
criminal intent, kundi did you commit the act law penalizing such
prohibited by law. If the answer is yes, then you are acts/omission
liable. It is immaterial whether you have the intent.
Okay do you understand?
Good faith and lack of Good faith not a defense since figure resembles to that of Y, X immediately fired his gun.
criminal intent are good criminal intent is immaterial However when he approached the body, he found out that it
defenses in mala in se was his father that he shot. X is liable for parricide.
- Good faith not a
defense in ―technical Other scenarios:
malversation‖ People v. 1. Accused was cleaning his licensed firearm. Upon finishing,
Ysidoro Nov. 14 2012 accused wanted to test out his gun. Upon searching for a
target, a cat passed by the walls of his property. He then tried
to point the gun at the cat. Accused fired the gun with the
MOTIVE – reason for the accused to commit the crime intention of hitting the cat. Unfortunately, the cat jumped and
Is it necessary for prosecution to present proof of motive? the bullet hit his neighbor instead on the other side of the wall.
GENERAL RULE: Proof of motive or evidence establishing Is he liable for unintentional crime of homicide? or reckless
motive is not necessary. imprudence resulting in homicide?
Example: Take note that article 4 is applicable only for unintentional
Mayor killed his political rival; motive is political crime, it says different from the crime which intended to
Husband killed the paramour of his wife; motive is jealousy or commit, so he must have intention to commit such crime. He
love triangle was charged with homicide, is he liable? he doesn‘t have any
EXCEPTIONS: criminal intent to kill his neighbor! They were friends!
1. When the act brings about variant crimes Take not that a person committing a felony is liable for the
Example: when teacher is attacked on his way home by a felony committed even if the felony is different from that
student, is the accused automatically liable for direct assault which he intended to commit. In this case, the intention to kill
the fact that the victim is a teacher? No! It must be proven that the cat is malicious mischief which is a felony penalized under
the reason of the attack has connection to the performance of the RPC. Hence, he could be liable for homicide.
the duties of the teacher, if the attack has nothing to do with
the performance of the teacher, then it is not considered direct Note: To be held criminally liable for the resulting crime/act,
assault. So there must be proof of MOTIVE. the person must be committing a felonious act; he must be
2. When the perpetrator is not positively identified due to lack committing a crime in order to be held criminally liable for the
of witnesses RESULTING ACT which is different from the crime he
3. To determine whether the killing was intentional or intended to commit.
accidental
4. When accused claims self-defense 2. X decided to commit suicide. He decided to jump over
Mactanbridge. As he was about to jump, he closed his eyes,
Article 4.When is criminal liability incurred? asking for a sign from God. As he opened his eyes, he saw a
- By any person committing a felony billboard from Nike (JUST DO IT!), without hesitation, he
- Although the wrongful act or the resulting crime jumped. Unfortunately a fisherman who was spearfishing just
done is different from that which he intended to came above the water and was hit by X who jumped. The
commit fisherman was killed and X survived. Question, is he liable?
- A person is liable for all the direct, natural and logical In order for Article 4 to apply, the intended act must be a
consequences of his felonious act felonious act, so, is committing suicide a felonious act? The
answer is no, he cannot be held liable. However, it could‘ve
Circumstances/possible scenarios wherein the resulting c been different if he saw the fisherman before jumping, then he
rime is different from what the accused intended: (APE) could‘ve been liable for reckless imprudence resulting to
1. ABERATIO ICTUS – The crime committed is different from homicide. Ok?
what is intended; there could be 2 crimes, against the victim
and the unintended victim.(Article 48. Complex Crimes) Note: Just look at the INTENDED ACT or the ACT WHICH
Example: X wanted to kill Y. The bullet went through HE INTENDED TO COMMIT, if it is a felonious act, then he
Y and hit A who was sitting at the back of Y. Both died. X is is LIABLE under Article 4. A person who committed a
liable for both crimes committed. felonious act is liable for all the direct, natural and logical
2. PRAETER INTENTIONEM – lack of intent to commit so consequences of his felonious act.
grave a wrong
Example: X punched Y. Y fell to the concrete and hit JUNE 1, 2016
his head and died. X has no intention to kill Y. X is liable. Criminal Law Review Part 2
3.ERROR IN PERSONAE– The offender meets the object to
which the felonious act is aimed, however, mistaken in the Criminal liability shall be incurred by any person
identity of his victim. committing a felony. (cont. of Art 4)
Example: X wanted to kill Y. X waited for Y in a dark Felony is an act or omission which is in violation of the RPC.
alley. When X saw a person going to his direction, and the So if an act or omission does not constitute of the RPC, then it
is not a felony. But of course if it is in violation of a SPL, then 3. The accused stabbed the victim with a
that will still be a crime. bamboo stick and the accused was brought
to the hospital but was not confined. 21 days
To recap: (Criminal liability incurred when) later, the victim was brought again to the
1. By any person committing a felony and by any person an hospital. The next day he died. Accused was
unintended felony provided that the unintended felony is charged with homicide. What is the liability?
the direct, natural and logical (DNL) consequence of the - Try to see the decision of the SC. I will not
intended felonious act. spoon feed you! (Pp vs Villacorta GR No.
Example: 186412 9/7/11)
Mr. X tried to stab Mr Y. Mr Y was able to
move away. Mr Y tried to get the knife and 4. If the accused is carrying a knife and
disarm Mr X. In the course of trying to chased the victim. Due to fear, the victim ran
disarm X, Mr. Y incidentally injured Mr. A. away. When he saw the accused nearing
Is Mr. Y liable for the injury caused to Mr. A? him, he jumped into the sea but the victim
- No, because Mr. Y was not committing a doesn‘t know how to swim. Victim died.
felonious act. Defending oneself is not a Liable?
crime. He was performing a lawful act. - Yes, Legal Basis: Article 4.
To be liable, there must be a logical connection. Meaning there 5. If the accused staged a robbery in a
must be a relation between the felonious act and the resulting jeepney. X out of fear, jumped off the
crime. In other words the resulting act must be the proximate jeepney but she hit her head first on the
cause of the intended felonious act. concrete and died. Liable for ROBBERY
ONLY or ROBBERY WITH HOMICIDE?
Proximate Cause: such adequate and efficient cause as, in the - Robbery with Homicide! Legal Basis: Check this
natural order of events, and under the particular circumstances case (Pp. vs Pahi 77 SCRA 348)also check (Pp vs
surrounding the case, which would necessarily produce the Valdez 41 Phil 497)
event.
Another instance when a person is criminally liable is:
When there is an ACTIVE FORCE that intervened between the
felony committed and the resulting injury and that active force 2. By any person performing an act which would be an
is a distinct act or fact absolutely foreign from the act of the offense against persons or property, were it not for the
accused, the accused is not liable. inherent impossibility of its accomplishment or on account
of the employment of inadequate or ineffectual means. (AKA
Examples: IMPOSSIBLE CRIME)
1. Accused boxes the victim. But Familiarize yourselves with crimes against PERSONS and
accidentally the horse nearby jumped on the PROPERTY.
victim. Is accused liable? Felonies against persons: parricide, murder, homicide,
- No. The death of the victim can’t be considered infanticide, physical injuries, etc.
as the direct natural and logical consequence of Felonies against property: robbery, theft, usurpation,
the boxing of the accused. The jumping of the swindling, etc.
horse is an active intervening force. The accused
could be held liable of slight physical injuries Elements of Impossible Crime:
only but not of the death of the victim. a. accused is performing an act, and such act would have been
a crime against PROPERTY AND PERSONS.
2. The accused inflicted physical injuries on b. there is legal or physical impossibility of the
the victim. But the victim deliberately accomplishment of such act/ its accomplishment is inherently
immersed his body on contaminated water. impossible
Infected and so it became serious. Liable? c. its employment is inadequate or its means is ineffectual
- No. The accused can’t be liable for serious d. the act performed should not be a violation of any provision
injuries but only of slight physical injuries. of the RPC
Deliberately immersing the body into
contaminated water can be considered as an Impossible Crime is the only crime which is penalized under
active intervening force. The resulting injury is Book 1. All other crimes are defined in Book 2.
the result of the intentional act of the victim
himself. (US vs Delos Reyes. GR 13309)
Penalty for Impossible Crime: ARRESTO MAYOR
(found in Art 58)
Impossible crime is not really a crime but the RPC through the Department of Justice, the reasons which induce
imposes a penalty because of the person‘s CRIMINAL the court to believe that said act should be made the subject
TENDENCY. of legislation.
Examples: In the same way, the court shall submit to the Chief
1. X saw Y (his enemy) sleeping on a bamboo Executive, through the Department of Justice, such statement
bed. He stabbed Y. But it so happened that Y as may be deemed proper, without suspending the execution
died 3 hrs ago pa. What crime is committed? of the sentence, when a strict enforcement of the provisions
- Impossible crime! Crime would‘ve been of this Code would result in the imposition of a clearly
murder had it not been for its legal/ physical excessive penalty, taking into consideration the degree of
impossibility to accomplish the crime. You malice and the injury caused by the offense.
cannot kill a dead person.
What should the court do if the accused is charged with a
2. X saw a beautiful lady sleeping on a crime but after trial, the court finds that the act committed does
bamboo bed and X raped the lady. But the not constitute any offense or is not penalized by any law?
lady was actually dead 2 hours prior. Crime - ACQUIT! There is no crime if there is no law
committed? penalizing such act.
- Impossible crime to commit rape! Why?
Rape is a crime against persons and there Under Art 5, the court is required to submit a report to the
was legal/physical impossibility to President thru the DOJ if the court believes that the act should
accomplish the crime. be penalized. Why make a report?
- So that the President to the DOJ can make
3. X secretly took away the cellphone of Y. X representation with the congress for the proper
later discovered that that cellphone was the legislation.
same phone he lost last week. Crime?
- Impossible crime TO COMMIT theft. Take If it‘s the reverse? The act is penalized but the court finds that
note: IMPOSSIBLE CRIME gani, ang the penalty is too harsh? What should the court do?
apilyedo kay TO COMMIT (murder, rape, - The court does not have any option but to apply the
theft) --- Remember, crimes against Persons law. But if it believes that the penalty is harsh, the
or Property ra ni. court shall furnish a copy of his decision to the
President thru the DOJ for the president to exercise
4. W is tired of H, her husband being a his executive powers.
womanizer/drunkard. Ig sweldo, di mo
hatag sa sweldo, hubog pa! So in the Example: During the advent of the death
morning, W made coffee for him. She put penalty, there was this case involving the
poison but later noticed that H was not accused who raped and killed a 7 year old
affected. What she thought was poison was chid. The penalty then was death. In the
actually white sugar. Matod pas iyang bana, case, the judge was a Born-again Christian
―Tam-is man kayo, dear!‖ Crime? and based on his religion, only God can take
- Impossible crime to commit Parricide.- here away life. Since it was against his religion,
the means was ineffectual. the judge did not impose death penalty, only
reclusion perpetua. Prosecution objected. SC
The next day, nanigurado nagyud! W nullified the decision and let the judge
bought Racumin (para sa ilaga). She put it in choose: Impose the penalty provided by law
the coffee, but H was still not affected cause or lose your job? So the judge imposed the
she placed a very little amount. correct penalty which is DEATH. Dura lex
- So here, there was inadequate means as sed lex.
opposed to the last scene.
**Read: Pp vs Jacinto 7/13/09 – ALWAYS ARTICLE 6: Consummated, Frustrated, and Attempted
READ MY CASES GIVEN COS THEY Felonies
MIGHT COME OUT! Now, Article 6 tells us another classification of Crimes. Crimes
can be classified ―According to the stage of its execution.‖
Article 5. Duty of the court in connection with acts which Under Article 6, felonies are classified into three (3) according
should be repressed but which are not covered by the law, and to the stage of execution and these are: (a) Attempted Felony
in cases of excessive penalties. - Whenever a court has (b) Frustrated Felony and (c) Consummated Felony.
knowledge of any act which it may deem proper to repress Note: In Book One, the most important provisions are Articles
and which is not punishable by law, it shall render the 2-20. If you notice, more than half of your book (Reyes) discuss
proper decision, and shall report to the Chief Executive, about these articles. This will show how important these
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
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CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
Overt Acts Another Example. The accused, with intent to kill the victim,
The overt acts, in order to be punishable, must have connection fired at the victim but the firearm did not fire because it
to the intended crime. That is what is meant by ―directly by malfunctioned. So, why is it that he was not able to perform all
overt acts‖. Look at the definition of Attempted Felony under the acts of execution? Because the firearm malfunctioned. It is
Article 6. not because of his desistance.
Another Example. He fired at the victim but he was not able to
ATTEMPTED FELONY hit the victim because of his poor marksmanship. What is the
Now, under Article 6, there is an ―attempt‖ when the offender reason why he was not able to perform all the acts of
commences the commission of a felony directly by over acts, and does execution? Because of his poor marksmanship, not because of
not perform all the acts of execution which should produce the felony his own spontaneous desistance.
by reason of some cause or accident other than his own spontaneous
desistance. Another Example. Or when he pointed at the victim but he
was not able to hit the victim because the victim ran away in a
Case: There was this case, the barangay tanods were zigzag manner. What is the reason why he was not able to
patrolling. Now they chance upon a person removing a perform all the acts of execution? Because the victim because
portion of a wall of a house which is also used as a store. Balay the victim ran away in a zigzag manner and not because of his
sya unya naa puy tindahan. So the barangay tanods saw a own spontaneous desistance.
person in the act of removing a portion of a wall.
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CRIMINAL LAW REVIEW (Book 1)
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Situation: What about if the accused fired at the victim but the of causes independent of his will. So, if not for the timely
victim was not hit. The victim cried and pleaded to spare his medical assistance AND expertise of the doctor, the accused
life, ―Sir, ayaw kog patya kay naa koy pamilya. Bata pa raba would have died. Frustrated Stage.
kaayo akong asawa.‖ Nalooy ang accused. He desisted.
CONSUMMATED FELONY
Question: Is the accused liable for Attempted Homicide? A crime is consummated when all the elements of the crime
are present.
Answer: In order for the accused not to be liable by virtue of
his desistance, it is necessary that the acts that he performed Case: The wife is already tired of her husband. Palahubog,
should not constitute any offense. sugarol, mamaye, mao tong naka huna2x siyang hiloan iyang
bana. Iyang gihurot ang isa ka sachet sa hilo sa ilaga sa kape sa
Example: So pananglitan, on his way to the house of the iyang bana kay gapatimpla man kay hubog. Sos! sa dihang nag
victim, he saw the victim sleeping. Giduol niya, uy, nalooy bula2x na ang baba sa bana, ang asawa doktora man, naka
man siya. So, niuli sa ilaha. Is he liable? NO, because kadtong huna2x, naka realize nga she could not live without her
iyang pag duol dili paman to mo constitute og crime. husband. Mao tong iya dayon gipa inom og usa ka gallon nga
Pero, kun iya nato syang napusil unya nalooy siya, that can honey. Naulian ang bana. The husband filed a case of
already be considered as a crime despite his desistance. And Frustrated Parricide against his wife. Was the wife able to
kun napusil gyud to niya, that can be considered as Attempted perform all the acts of execution? Yes. Nagbutang syag hilo.
Homicide or Attempted Murder. Nainom na sa bana.
Kun gi point lang, that is not an Attempted Stage but that is
Consummated Crime. Grave Threats. Pero kun iya nang na Question: Is the wife liable for Frustrated Parricide?
pull ang trigger unya usa sya ni desist, he could be liable for
Attempted Homicide. Answer: NO. Why? Because the crime was not accomplished
Dunay instances when an overt act could be considered an because of her will. She could not be held liable for Frustrated
Attempted Stage of a crime pero duna say instances when the Parricide. Perhaps, Serious Physical Injuries kay ga suka2x
same act could be considered as another crime, a man ang bana, but that cannot be Frustrated Parricide. In
Consummated Crime. frustrated crime, the accused performs all the acts of execution
which would produce the felony but the crime was not
Example. The accused saw a beautiful woman, murag si Kim produced because of some causes independent of the will of
Chui, nga natug. Iyang gi hikap2x ang mga private parts. the perpetrator.
Private kay for ―private use only‖ man. Whats the crime In the problem given, the crime was not produced because of
committed? That‘s Consummated Crime of Acts of the acts performed by the accused.
Lasciviousness. Now, in order to determine what stage is the commission of
the crime, it is sometimes helpful to know the manner of the
What about if after touching the private parts, he undressed commission of the crime, the elements of the crime, as well as
the woman, likewise undressed himself, and placed himself on the nature of the crime.
top of the woman. That could no longer be Acts of Now there are crimes that have no attempted or frustrated
Lasciviousness, but that is already an Attempted Stage of stage. There are crimes that are consummated at once. These
Rape. Because the overt acts of undressing the woman, crimes are called formal crimes.
undressing himself, and placing himself on top of the woman, There are also crimes which have attempted, frustrated and
these overt acts will constitute the Attempted Stage of the consummated. These are called material crimes.
crime of Rape. The intention to rape now is obvious. There are even crimes that are attempted and consummated.
So, that is just to show you that an overt act may be a Some crimes do not have frustrated stage. Example: Theft. It
Consummated Crime and if you go further, pwede na syang does not have any frustrated stage, only attempted and
mahimong Attempted Stage of another crime. consummated. Why? Because in the crime of theft, it is
consummated the moment the accused takes control over the
Situation: What about if the accused was able to pull the stolen item. Opportunity to dispose of the item is not
trigger, hit the victim in the head. The victim was rushed to the necessary.
hospital and if it were not for the timely medical assistance
AND expertise of the doctor the victim would have died. CASE IN POINT: Ppvs Valenzuela, June 21, 2007
Kanang duha mag uban jud na. Kay kun immediate medical Unlawful taking is deemed complete from the moment the
assistance pero banga ang doctor, patay! accused takes possession of the thing even if he has no
What is the state of the commission of the crime? Frustrated. opportunity to dispose of the same.
Now, kaning frustrated, naa nani sa Objective Phase. You have to know the manner in committing the crime.
always consummated. A mere attempt - Ex. A police officer shot a person. There is a
to violate the special law is not crime of murder. Then you have to pay for the
punishable. Unless the special penal law life of the person (50k) including the grave lot
provides that an attempted stage of a and the earnings lost. The person is a public
crime is punishable. officer then an administrative case will also be
o Violation of R.A. 9165 (Drugs), there is a filed for grave misconduct (dismissal). If the act
provision where an attempted stage for committed is justified and would fall under any
the sale of drugs is punishable. of the justifying circumstances, there are no
liabilities.
Exc. –The special law specifically provides that
the RPC provision will apply. 1. Anyone who acts in defence of his person or his
o There are some special laws that rights, provided that the following circumstances
use/borrow the terms under the concur:
Revised Penal Code such as the a. Unlawful Aggression; (most important)
penalties imposable. b. Reasonable necessity of the means
o Those special laws that borrow the employed to prevent or repel it;
terms of penalties under the Revised c. Lack of sufficient provocation on the part
Penal Code may also apply its of the person defending himself.
provisions. Unlawful Aggression is the most important circumstance but
o Example: When using the penalties of all must be present for a valid justifying circumstance. Without
the Revised Penal Code, mitigating and it, there is no basis to perform self-defense.
aggravating circumstances will also be
applied. As a rule mitigating Aggression – an attack or at least a threat which is imminent
circumstances under the RPC do not and immediate.
apply to Special Penal Laws, unless the - Actual
Law uses the terms of penalties under o Already stabbed by a knife
the same Code. - Imminent
o The pleading of guilty under special o Still going to be stabbed by a knife
laws does not mitigate the crime o Being pointed with a gun
committed, unless the special law o At the point of happening
applies the penalties of the RPC. When o Expected to happen
the special law uses the nomenclature of
the Revised Penal Code, the provisions Types of Aggression:
of the latter may apply to the special 1. Lawful
law. (People vs. Simon, July 29, 1994) 2. Unlawful
(Go-Tan vs. Sps. Tan, September 30,
2008) There was this newlywed couple. The husband was
The Different Circumstances Affecting Criminal Liability: working in a call center. He usually reports at night. He had to
return to work. One evening, while the wife was left alone
Modifying Circumstances: sleeping in the rented house at midnight, there was someone
1. Justifying touching her. She recalls that sometimes her husband would
2. Exempting just come home in the middle of his nightshift. She thought it
3. Mitigating was her husband touching her. She did not resist the acts,
4. Aggravating thinking it was her husband. The man proceeded to have
5. Alternative/ Alternating sexual intercourse with her. After the sexual intercourse, the
Book I – most important article is article 11 (memorize if man whispered to her ―Thank You Very Much, I hope you
possible) enjoyed as much as I did.‖ At that very moment, she realized it
was not her husband. With all her might, she took the knife she
Article 11 Justifying Circumstances hid under her pillow and stabbed the man. It was found out
- Circumstances where the act of a person is in that it was their neighbor. She was charged with homicide. Is
accordance with law. The act is justified. she liable? She raised self-defense.
- Does not commit a crime and there is no civil
liability. - Yes, she is liable. There was no longer any
- When committing a crime, usually you are aggression when she stabbed her neighbour. The
charged with two cases. If it involves a public unlawful aggression already ceased. It was not
officer then it will be three charges, one for self-defence but retaliation. There must be
criminal, one for civil and another for unlawful aggression at the very moment of the
administrative. performance of the act.
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
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CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
- Support your answer with legal basis. No legal arrest him, he did not stop despite the warning shot.
basis –zero You fired at him. He was hit in the back and died. Is
the policeman liable?
The husband, the call center agent, went home early No. There is no more unlawful aggression.
because he was not feeling well. When he went home, he heard But why is it justifiable? There is another justifying
a disturbance in their room. He tried to listen to the noise. circumstance, not anymore self-defense. Your defense
When he looked inside the room, he realized it was his friend would be: Lawful performance of duty. Where can it
and his wife in the act of sexual intercourse. He then went into be found? That is par 5.
the kitchen and took a knife. When he was about to stop the
man (who was a police man), grabbed his firearm and fired the - Under this justifying circumstance, unlawful
gun. The husband died. The policeman was charged with aggression is not an element. There are only 2
homicide. Was he liable? requisites:
- Yes, he is liable. The policeman was liable 1. the accused is performing his duty; and
because there was no unlawful aggression. There 2. in the course of the performance of such duty
was an aggression but the aggression was lawful. he inflicted an injury to another person
The first element of self-defence was absent. It is - If these 2 requisites are present, he is not liable
within the right of a spouse to kill his/her spouse
or the paramour/ concubine in the act of sexual Art. 11. Justifying circumstances. — The following do not
intercourse. incur any criminal liability:
1. Anyone who acts in defense of his
Mr. Y attempted to stab Mr. X but Mr. X, who is a fan person or rights, provided that the following
of FPJ, was able to parry the attack and rest away the weapon circumstances concur;
of Mr. Y. Mr. X then used the knife and stabbed Mr. Y. Is he
liable? First. Unlawful aggression.
- Yes, at the time that he stabbed Mr. Y, there was Second. Reasonable necessity of the means
no longer any unlawful aggression. At the time employed to prevent or repel it.
the accused committed/performed the act to Third. Lack of sufficient provocation on the part
defend himself, there was no longer an unlawful of the person defending himself.
aggression. Even though there was an unlawful
aggression at the start it had already ceased. - why is it that the law allows self defense? You have
- The attacker was already disarmed therefore killed a person but you are not punished.
there was no longer unlawful aggression. Unless o Classical theory or positivist theory: self-
the attacker, after being disarmed, searched for defense is considered a justifying
another weapon, then unlawful aggression circumstance because it is just impossible for
the government to protect every citizen 24 hours,
would still be present. It is justifiable to stab him
7 days a weeks. Even if the 6 months is already
with the knife.
over, there would still be bad guys.
- What about if the attacker, the aggressor, after
firing at you ran away after stabbing you but you o Self-preservation is a right of every person
were able to evade the attack but you ran after
First. Unlawful aggression.
him and stabbed him, are you liable?
- There must be unlawful aggression
Yes, liable because there is no more unlawful
- Unlawful aggression: there must be either actual or
aggression.
imminent attack
- Imminent: expected or on the point of happening
Art. 11. Justifying circumstances. — The following do not
incur any criminal liability: o EX: a gun is still pointed at you
5. Any person who acts in the fulfillment of a duty - Actual: attack is already present
or in the lawful exercise of a right or office. o EX:you are already stabbed, or got shot at
- It is not right that you have already been shot before
- Remember that if the person being attacked; he is a you take your revenge. It is not a need. If you are
law enforcer, TN that being a law enforcer you have about to be hit, you can already kill the person. If you
the duty to arrest the criminal. have no gun, you can already run.
- If you are only a civilian, if you are being attacked – - Case for actual aggression: US vs Laurel
only until prevent and repel o Laurel – our President during the Japanese
- If you are a law enforcer, you have the duty to arrest period
him. o He was able to stab someone
- EX: After attacking you, you were hit or slightly hit o FACTS:
then after the attacker ran away. You fired a warning His friend had a girlfriend which he also
shot and told him to stop because you are going to wanted to court but the girl just kept on
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
agreeing but she never goes. So when he saw Marcos was very intelligent and
the girl he stole a kiss from her and ran Laurel saw himself in Marcos. He
away. The girl then told Laurel‘s friend thought that if he was convicted
about the incident. The boyfriend got really before then his life would have
mad. been different.
- Case for imminent aggression: PP vsCabungcal
There was this gathering once so the o FACTS:
boyfriend told one of his friends to call The accused and the member of his family
Laurel to let him go to the gathering. So together with other persons, one of whom
Laurel went and the boyfriend confronted was the victim, they were riding a boat or
him then he was hit by a stick or garote. paddleboat or outrigger. When they were
Laurel was able to bring a knife or batangas already on board the boat, on their way
during that time. When was told to kneel home, when they were already at the middle
down and was then hit by the stick. When of the river the victim kept on rocking the
the attacker was about to strike him again, boat as if he was playing around with the
he stabbed the attacker or the boyfriend. around passengers on board. The water
started to get in into the boat. The accused
The act of teasing or kissing the girl was scared because most of the passengers
happened the other day. or his family members were women. He
admonished the victim to stop but the victim
The victim almost died so he was only did not stop. So he hit the victim at the
charged of frustrated homicide. forehead using his paddle. The victim then
Liable? fell to the water but the victim tried to
RULING: capsize the boat. The accused hit the neck of
The lower court convicted Laurel. the victim and so he died.
When the case reached the SC Laurel was Liable?
acquitted. According to the SC, all the
elements of self-defense were present. There RULING:
was an actual aggression. There was an There was imminent danger. There was an
actual attack when Laurel stabbed the victim. unlawful aggression that is imminent.
o Why was he acquitted when there was Meaning, there is imminent danger to life or
provocation on his part? He made fun of the there is danger on the point of happening.
girlfriend. o It is not needed that you are already being
The sufficient provocation must attacked and that‘s the only time that you
immediately precede the attack. perform an act wherein you defend yourself
You do not have to wait for - EX: you are being insulted, is it sufficient that you
tomorrow. raise self-defense once you killed the person?
o Later on when Laurel became a lawyer then o Insulting words, light pushare not
a justice of the SC. One of the cases he considered unlawful aggression
decided was the case of former President - NOT unlawful aggression:
Marcos. o Insulting words
Marcos was charged with murder o light push
for allegedly killing the political o drawing a gun
opponent of his father o cocking a gun
Congressman Nalundasan. - Considered unlawful aggression:
o Pointing a gun, or aiming a gun (Almedavs
While Nalundasan was having his CA 80 SCRA 575)
victory party at Ilocos, he was shot. o Brandishing a gun
Marcos was a sharp shooter. So he o Slapping the face of a person (Rugasvs PP,
was accused as the killer. January 14, 2004)
Face = represents the person and
He was convicted by the lower his dignity
court but when the case was - The unlawful aggression made by the victim and the
appealed to the SC it was Laurel killing of the victim made by the accused should
who wrote the decision and Marcos succeed each other without appreciable interval of
was acquitted. time.
o If you are stabbed now, it is not allowed that
you would take your revenge tomorrow.
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
o It must be necessary that the defensive act possible that you would stab the person who said
be simultaneous with the unlawful that.
aggression or must immediately follow the - What about if there was provocation but it was not
unlawful aggression. sufficient?
- To determine self-defense, the number, location, and o EX: you only stepped on his foot but he
seriousness of the wounds would indicate self- already stabbed you. Was there provocation?
defense. That could be since you didn‘t check you
o EX: stabbing him 30 times, chopping his surroundings when passing by since you hit
head off, chopping his body parts? No him. But it is not sufficient provocation.
o Not necessary to chop off parts Can he claim self-defense? He can
because there was unlawful
Second. Reasonable necessity of the means aggression, the means is necessary
employed to prevent or repel it. then there was sufficient
- TN: reasonable necessity provocation but there was lack of
- Reasonable necessity: there is necessity of the cause of sufficient provocation on the part of
actiontaken and there is necessity of the means used the accused. Although there was
- When one used a gun, was it really necessary? When provocation but the same is not
you hit him with a gun, was it really necessary so as sufficient.
to prevent the attack? o EX: you stabbed a person but he had a gun
- When you were boxed, is there an unlawful so he shot you.
aggression? Yes, there is an unlawful aggression. - If it is sufficient but not, it would depend on the
- If you were boxed but used a gun, is the means used circumstances
to defend yourself necessary? That is not. - EX: if you were only walking but you were suddenly
- But if the person who boxed you is Shaquille O‘Neil stabbed then you took revenge by hitting his head
then you used a knife to defend yourself, is it until he died
reasonably necessary? Yes. o There was no provocation on your part
- If it is Pacquiao who boxed you, you used a knife? o Was there unlawful aggression? Yes you
Still necessary. were stabbed
- It depends on the reasonable necessity of the means o Was the means used by you reasonable? Yes
used: the means used depends on the weapon used reasonable
by the aggressor and counter-aggressor. It would - lack of sufficient provocation: it could be that there is
really depend. no provocation at all
- 2nd element: reasonable necessity of the means used to o EX: you were just walking but he was jealous
prevent or repel the attack of your hairdo because it‘s a mohawk so he
- Prevent when the attack is imminent stabbed you. So you took revenge.
- Repel when the attack is already going on or actual There was no provocation or there
- If you are boxed, as a rule you also box him. If he was no sufficient provocation
used a fist then you should also use a fist against him. - Lack of sufficient provocation:
If he winked at you, then wink at him also. 1. there was no provocation at all
2. there was provocation but it was not sufficient
Third. Lack of sufficient provocation on the part 3. there was sufficient provocation but it was not the
of the person defending himself. accused who made the provocation
- Where should the provocation come from? On the 4.
part of the person defending himself
- It should be that he did not do it first Justifying Circumstance: Self- defence
- If he committed an act that which triggered the
aggression then he cannot anymore claim complete Par. 1 Anyone who acts in defence of his person or rights,
self-defense because there was sufficient provocation provided that the following circumstances concur:
on his part 1. Unlawful aggression
- EX: the accused was teased that he was a cleft lip even 2. Reasonable necessity of the means employed to
if he knew that he was already a cleft lip, so he prevent or repel it
stabbed the victim. 3. Lack of sufficient provocation on the part of the
o Is it not a provocation? It is. person defending himself.
o Is it considered a sufficient provocation?
That could be considered a sufficient WHEN THE FIGHT WAS AGREED UPON, THE
provocation. AGGRESSION AS BETWEEN THE PARTIES IS
- EX: in front of a lot of people a person was called him CONSIDERED LAWFUL.
a thief. If it was you, what would you do? It is really
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- Case: There is no unlawful aggression in a concerted - But note that perfect equality between the
fight. Here the accused and the deceased after an weapon used by the one defending himself and
argument agreed to fight, went to a store and that of the aggressor is not required.
purchased two knives. Even if the accused expressed - Example: Stick vs. Knife= Reasonable
his desire not to push through the fight but the Gun vs. Bolo= Reasonable
deceased paid no heed and attacked the accused- but Gun vs Knife= Reasonable
the latter succeeded in killing the deceased. When the Fist vs Knife= As a rule is not
fight was agreed upon, the aggression as between the reasonable. If the attacker just used
parties is considered lawful. The aggression is his fist, you must just have used your
considered reciprocal and legitimate. There being no fist as well. But then again you have to
unlawful aggression then there is NO SELF- take into consideration the physical
DEFENSE. condition, character and the size of the
- US vs. Navarro 7 Phil 713 attacker. Because if the attacker is too
strong, he is a wrestler, a champion in
- What about if there was an agreement to fight but the the UFC. He can be deadly so you can
other deceived and ambushed the accused, the latter just shoot him.
however was able to kill the deceased. Is there self-
defence? YES. Now there can be self- defence because - But take note: That WHEN THE PERSON
the attack this time is unexpected. BEING ATTACKED IS A LAW ENFORCER,
DEFENSE OF PROPERTY CAN BE INVOKED AS A unlike a civilian which is required only to
JUSTIFYING CIRCUMSTANCE ONLY WHEN IT IS prevent or repel the attack, the law enforcer has
COUPLED WITH AN ATTACK ON THE PERSON OF ONE the duty to arrest and overcome his opponent. A
ENTRUSTED WITH SAID PROPERTY, SO THAT THERE police officer is not required to afford a person
IS COMPLETE SELF- DEFENSE. attacking him, the opportunity of a fair and equal
- Example: Your chicken was stolen. The thief (the fight. US. vs Mojica, 42 Phil. 784
deceased) ran and so you ran after him and shot him.
Here, the act is not completely justifiable. There could When there is complete self- defense, the accused is not
be unlawful aggression but the means used was not criminally and civilly liable because the act is justifiable.
justifiable, especially if the victim was not armed or
does not have any weapon. - But take note that justifying circumstances just like
the exempting circumstances are your defenses. It is
- People vs Narvais. April 20, 1983 not for the police to determine whether you are guilty
or not, but for the court. It is not the police who
- Is it necessary to kill the aggressor/ attacker? NO. But determines whether the requisites for a valid defense
the person defending himself is not expected to are present. A case can still be filed against you even
control his blow. if you claim self- defense.
IN REPELLING OR PREVENTING AN UNLAWFUL
AGRESSION, THE PERSON DEFENDING HIMSELF - In Criminal Procedure, what is required in filing a
MUST NOT INDISCRIMINATELY FIRE HIS DEADLY case is mere probable cause. The fact that you killed a
WEAPON. person makes you probably guilty, although not
- Example: You are attacked and you have a gun. You certainly guilty. Now it‘s up to you to argue that the
cannot just recklessly fire it, at the risk of the innocent act that you committed is justifiable.
bystanders around. Because in the event that you hit
an innocent person, even if you were attacked, you - Because when you raise self- defense, you are in effect
can still be held liable for culpable felony. Although admitting that you killed the victim. It is now
self- defense is a lawful act, you have to exercise such incumbent upon the accused to present evidence to
right with due care. Again, WITH. DUE. CARE. prove that all these elements are present. And the
amount of evidence required is CLEAR AND
What are the circumstances that will determine whether the CONVINCING.
means used is reasonable?
- Amount of evidence required:
1. The nature and the quality of the weapon used by the To convict the accused: Proof beyond reasonable
aggressor doubt.
2. His physical condition, character, size of the attacker, To acquit the accused (if self- defense is raised):
and other circumstances and Clear and convincing evidence.
EXCEPTION TO SELF- DEFENSE: BATTERED WOMAN
SYNDROME. - Here the accused can still be justified even in the
absence of the requisites for a valid and complete self- defense.
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- Under Section 26 of RA NO. 9262 or the Anti- VAWC 3. In case the provocation was given by the person
Act of 2004, victim- surviviors who are found by the attacked, the one making the defense had no part
courts to be suffering from battered woman therein.
syndrome do not incur criminal and civil liability
notwithstanding the absence of any of the elements - There is still a legitimate defense of relative even if
for justifying circumstances of self- defense under the the relative being defended has given provocation,
RPC. provided that the one defending such relative has no
part in the provocation.
- But the accused has to prove that she is suffering from
Battered Woman Syndrome (BWS). - When can you be considered part of the provocation? If for
example you induced your relative to hit the deceased
- BWS- meaning you are a victim of physical or and assured him you have his back come what may.
psychological abuse. A woman who is repeatedly Aw
subjected to any forceful physical or psychological
behaviour by a man. It must be ―REPEATED - What if your wife is already dead, and your brother in law
physical or psychological abuse‖. If you were is being attacked, can there still be a valid defense of a
(kulata) just once and you killed the victim right relative? In the case of Carungcong vs People, GR No.
away, you can still be held liable because the law 181409 February 11, 2010, the court said that you can
requires repeated abuse. still raise defense of a relative.
Justifying Circumstance; Defense of Stranger
- Even in the absence of unlawful aggression, or the Par. 3. Anyone who acts in defense of the person or rights of a
means employed was unreasonable. Such as when stranger, provided that the first and second requisites
you were hit by the fist and you used an axe in return mentioned in the first circumstance of this article are present
or a gun, you cannot be held liable. and that the person defending be not induced by revenge,
resentment or other evil motive.
- In People vs Genosa, GR NO. 135981 January 15, 2004, - Any person not included in the enumeration of
Genosa was convicted of parricide because at that relatives is considered stranger for this purpose.
time there was yet no law justifying killing on the THIRD ELEMENT: THE PERSON DEFENDING BE NOT
ground of Battered Woman Syndrome. But this case INDUCED BY REVENGE, RESENTMENT OR OTHER EVIL
was the basis of Congress in enacting RA 9262. MOTIVE.
- He must be prompted only by heroic motive.
Justifying Circumstance; Defense of Relatives
Par. 2. Anyone who acts in defense of the person or rights of - Example: You heard your neighbour screamed for
his spouse, ascendants, descendants or legitimate, natural or help. She was being chased with a knife by her
adopted brothers or sisters or of his relatives by affinity in the husband, you ran down and helped her. You stabbed
same degrees and those by consanguinity within the fourth the husband causing the latter‘s death. Are you
civil degree, provided that the first and second requisites liable? NO. Because there was unlawful aggression on
prescribed in the next preceding circumstance are present, and the part of the deceased. The means used was
the further requisite, in case the provocation was given by the reasonable. You were not induced by evil motive, but
person attacked, that the one making defense had no part only by heroic motive to save the life of your
therein. neighbour.
- ―Relatives by affinity in the same degrees‖ meaning
by marriage, this includes: - But for example the wife who cried for help was your
1. Brother in law paramour. You saw it as an opportunity to kill the
2. Sister in law victim so that you and his wife can now live happily
3. Mother in law ever after. Will you be held liable? YES. Because here
4. Father in law defense of stranger is no longer complete. Clearly
there was an evil motive that induced you to defend
- ―Relatives by consanguinity within the fourth civil the stranger, or the wife for that matter.
degree‖- first cousin is included.
4. Avoidance of a greater evil/injury
- Your sweetheart is therefore a stranger This presupposes that there are 2 evils, meaning there are 2
REQUISITES FOR DEFENSE OF RELATIVES TO BE dangers.
JUSTIFYING: Example:
1. Unlawful aggression So for example you are driving your car on a narrow road, on
2. Reasonable necessity of the means employed to your left there is a creek, so if you‘ll swerve to your left you
prevent or repel it and will die because there is a creek, if you‘re swerve to your right
there‘s a pedestrian. Now for example there‘s a dump truck
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coming your direction at a high speed, you were to choose no more unlawful aggression since the victim ran away, but
whether to swerve your car to the left and fall to the creek or to take note, under this justifying circumstance, UNLAWFUL
your right and eventually hit the pedestrian. What will you AGGRESSION is not an ELEMENT. That‘s why this
choose? You will choose between the 2 evils or injury. presupposes that the accused should have performed his duty
with DUE CARE.
ELEMENTS: There might be a case where you‘re an officer, you are after a
1. That the evil sought to be avoided actually exists; robber in the busy streets of colon, and you fired your gun and
2. That there is no other practical and less harmful means of hit a pedestrian or stranger, you could be liable, why? Because
preventing it; you are negligent, you know for a fact that the area is crowded.
3. That the injury feared be greater than that done to avoid it. Another case, policemen apprehended a person who‘s about to
Another example: rob a house, then upon investigation, the robber was asked
You are the captain of a motorized boat, you encounter violent where are the items that he robbed from the said house, robber
sea waves, in order to lighten the boat, you have to throw said that its in the house, now he was escorted to the
cargoes into the sea otherwise the boat will capsize and all of policemen in the patrol car, now while on the way to the house
you will die. Suppose you throw cargoes into the sea, are you of the suspected robber, the latter allegedly grabbed the service
criminally liable for malicious mischief? The answer is NO. firearm of one of the policemen and attempted to jump off the
You can raise paragraph 4, avoidance of greater injury. police car, now one of the policeman who saw what happened,
fired at the suspsect who is about to jumped off the service car
Note: Remember Under justifying circumstance, no criminal and killed him, there is no warning shot here, now they were
and civil liability. However, as an exception under paragraph 4 charged with murder, are they liable? Look at this case,
in connection to the example above, although you are not Cabanlig vs. Sandiganbayan, July 28 2005.
criminally liable for malicious mischief, but you are civilly Also look People vsDelima 46 PHIL 738
liable for the cargoes, you have to pay the value of the cargoes
thrown. So if a law enforcer is being attacked, and then inflicted upon
Here, actual case, a woman is about to get married, all was set, the person attacking him, 2 justifying circumstances can be
he eloped with another man, charged with slander by deed raised, self-defense and performance of duty. As a law
since she did not attended her wedding and as a result, enforcer, he is also duty bound to arrest the person attacking
humiliated the groom to be, by her act of not showing up in him.
her wedding, is she liable? According to the case of People vs. ―….lawful exercise of a right or office‖
Hernandez, the CA in that case applied paragraph 4, stating So, what can be an example under this phrase, now for
that the act was justified as she was made to choose between a example your legs are about to get amputated due to diabetes,
man whom she did not love and to a man whom she really can the doctor be liable for mutilation? Answer is no.
loved. Well I don‘t know what happened after that case. How about during the time of death penalty, a convict was
Note: This is the only paragraph where civil liability could be killed thru lethal injection, now is the one employing such
assessed to the accused liable for murder? Of course no.
5. Any person who acts in the fulfilment of a duty or in the 6. Obedience to an order issued by a superior for some
lawful exercise of a right or office. lawful purpose
ELEMENTS: ELEMENTS:
1. Under the performance of duty or in the lawful exercise of a 1. Order is issued by a superior;
right/office; and 2. for some lawful purpose;
2. Inflicts harm to another 3. Means used by the subordinate to carry out the order is
- Unlawful aggression is not an element. lawful.
That presupposes that the person here acted without any For example you‘re a policeman, and you are ordered by your
negligence or imprudence. superior to torture the rebel or a member of Abu Sayaf, and the
―Under the performance of duty….‖ victim died, liable? Yes, since the order is not lawful. Is
Example: torturing a prisoner lawful? No.
In one case, the policeman was ordered to arrest a person who
is a fugitive from justice, meaning there is a pending case, now Article 12. Exempting Circumstances
when he ordered the person to surrender, the accused attacked There is a crime committed but there is no criminal.
him with a spear, now when the policeman dodged the attack, Going back to justifying circumstance, do you remember the
he ran away, the policeman fired the warning shot, but the requisites under dolo and culpa? Freedom, intelligence, and
accused continued to run, hence the policeman fired at the intent. Absent any of one of these are not liable. Now under
fugitive to stop him. Now, is he liable? According to the SC, this article, what is absent? INTENT. There is no criminal
the killing was done in the performance of duty. He was intent. Because if you perform an act defending yourself, you
performing his duty and the injury inflicted was done while are not committing a crime, you are exercising your right to
the course of performance or as a consequence of his duty, defend yourself, which is the right to self-preservation. Why is
what is his duty? To arrest the criminal. You might say there is
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self-defense allowed? Because it is impossible for the state to TN: When an accused raises the defense of insanity,
defend its citizens 24/7. he is in a way admitting the crime. It is now
1. Imbecile/Insane person, unless the latter acted during lucid incumbent upon the accused to present evidence that
interval his act is exempting due to insanity. There must be
Imbecile – a person who is at age but his mental age is that of a COMPLETE ABSENCE OF INTELLIGENCE.
7yr old or younger It must be COMPLETE ABSENCE. If it is not
An imbecile is always exempt; an insane person may be COMPLETE, it will not be exempting but only
criminally liable if he/she acted during lucid intervals; it must mitigating. Thus, one is still liable.
be necessary that at the time of the commission of the crime,
there must be complete absence of intelligence. Because if there How may the defense prove that the accused is insane?
is only a mere abnormality of his mental faculties, then he is - thruthe doctor/psychologist, that the insanity occurred even
not exempt, he is only entitled to mitigating circumstance. before or during the accused committed the crime. (cause it‘s
Who is required to present evidence that indeed the accused possible that the accused became insane already after he
that at the time of the incident, there was complete deprivation committed the crime)
of intelligence? It is the accused/defense. How? Through his - anordinary person who has sufficient familiarity with the
lawyer, subjecting the accused to a psychiatric examination, accused claiming to be insane (e.g. mother, immediate family)
and the psychiatrist must be presented in court to testify that at
the time of the commission of the crime there was complete In a case, the SC ruled that a person who is suffering from
deprivation of intelligence. SCHIZOPHRENIA or DEMENTIA PRAECOX is equivalent to
What if the accused says, ―boangko‖ will the case be INSANITY. Dementia Praecox is an irresistible homicidal
automatically be dismissed? No, let the court decide, let the impulse. (you keep on thinking that a person wants to kill you)
court rule whether there is complete absence of intelligence.
Note: amount of evidence to establish this exempting People v Madarang GR 132319, May 12, 2000: the accused is
circumstance is CLEAR and CONVINCING evidence, the found to be suffering from Schizophrenia. This is a common
same with justifying circumstance. form of psychosis which is equivalent to insanity. Read this
Art. 12. Circumstances which exempt from criminal liability. case and try to know why the SC sustained the conviction of
— the following are exempt from criminal liability: the accused who was charged with Parricide for killing his
wife. He raised the defense of Schizophrenia.
1. An imbecile or an insane person, unless the latter has acted
during a lucid interval. Pedophilia? Read! Pp v Diaz, Dec 8, 1999
When the imbecile or an insane person has committed an act Amnesia? Read some more!Pp v Tabugoca Jan 28, 1998
which the law defines as a felony (delito), the court shall Epilepsy? Yes, equivalent to insanity.
order his confinement in one of the hospitals or asylums Committing a crime while in a dream? Read Pp v Taneo
established for persons thus afflicted, which he shall not be
permitted to leave without first obtaining the permission of Basis of Exemption: Absence of Intelligence
the same court.
2. A person under nine years of age.
Imbecility is always exempting; Insanity is not. 3. A person over nine years of age and under fifteen, unless
- A person claiming to be insane cannot be exempted if it is he has acted with discernment, in which case, such minor
found that he acted during lucid interval because an insane shall be proceeded against in accordance with the provisions
person has intelligence during his lucid interval. of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible,
Remember that one of the three elements of crimes against the court, in conformably with the provisions of this and the
dolo/culpa is intelligence. In this article, if a person commits a preceding paragraph, shall commit him to the care and
crime, and he is COMPLETELY DEPRIVED OF custody of his family who shall be charged with his
INTELLIGENCE – then he is exempt. There is a crime, but surveillance and education otherwise, he shall be committed
there is no criminal. to the care of some institution or person mentioned in
saidArt. 80.
TN: The presumption is that a man is SANE. So, he
who raises the defense of insanity has the burden of Paragraphs 2 & 3 have been repealed by RA 9344. This will be
presenting evidence that indeed at the time or before discussed separately. But here‘s a bird‘s eye view:
he committed a crime, he was completely deprived of
any intelligence. That he cannot distinguish right 15 years old exactly or under – EXEMPT
from wrong. Over 15, and under 18 – could be exempt IF the prosecution
fails to prove that he acted with discernment. (Prosecution has
Amount of Evidence required: CLEAR & CONVINCING the burden. It must be alleged in the information AND proved
EVIDENCE that he acted with discernment)
With allegation but no evidence, or vice versa = circumstances, the accused is not criminally liable but
ACQUIT! he can be civilly liable. Paragraph 4 is an exception.
Discernment- the mental capacity to distinguish right from 3. You are a police officer in Colon and saw a snatcher. You
wrong chased him but he did not stop. You fired a warning shot but a
person painting soemthing nearby got hit. Liable?
How to prove that he acted with discernment - Firing a warning shot may be lawful. But you should observe
-examination by a psychologist/psychiatrist from DSWD your surroundings. There is negligence on the part of the
- acts made during, after or before the commission of the crime police officer. He knew he was in Colon where there are many
(e.g. After committing the crime, he cleaned the materials used. people. He may not be liable for intentional crime like
So clearly, he is aware that what he did was wrong. So there is homicide or murder but he may be liable for Reckless
discernment.) Imprudence resulting to Homicide due to his negligence.
Reckoning date of the age: At the time he committed the Basis of Exemption: No criminal intent/ Negligence
crime
Term for the minor offender: Child in conflict with the law 5. Any person who act under the compulsion of irresistible
force.
If the minor is EXEMPT – subjected to INTERVENTION
(seminars) Force, meaning violence. It is a physical force (―kulata‖, punch,
shot by a gun). One that is irresistible.
Basis of Exemption: Lack of Intelligence
This is different from par 6. In the latter, there is mere threat.
4. Any person who, while performing a lawful act with due While in this par 5, there is physical violence.
care, causes an injury by mere accident without fault or
intention of causing it.
Par. 5: IRRESISTIBLE FORCE
Article 4 of RPC Article 12, par 4 Now, what do you mean by IRRESISTIBLE FORCE? Meaning,
- accused is performing an - accused is performing a the accused does not have the opportunity to put up a fight;
unlawful act lawful act the accused does not have any chance to escape.
Basis: Complete absence of freedom
Examples: ―An act committed by me against my will is not my act.‖
A person who committed a crime under a compulsion of an
1. You‘re driving your car with due care, at a moderate speed. irresistible force is reduced to a mere instrument, and as such
Suddenly a toddler ran to your lane. You noticed him running incapable of committing a crime. Who is liable there? The
when you were just 2 meters away. Unfortunately you ran him person who inflicted violence.
over. Liable? Par . 6: UNCONTROLLABLE FEAR OF AN EQUAL OR
- No! Par 4. Let‘s see the elements: GREATER INJURY
a. performing a lawful act – driving your car Now, the fear here must be actual or real and imminent and
b. with due care – moderate speed, not drunk, not tinkering the injury must be greater than or equal to that committed.
with a phone Actual, Imminent
c. inflicted an injury – ran over the child ―If you will not kill him, I will kill you later.‖ There is a threat but
d. by accident without fault or intention of causing it – no the threat is no imminent. The treat is one which is imminent
negligence or imprudence on your part or actual.
Equal or Greater Injury
The injury must have been by ACCIDENT. For example, in one old case, the accused was threatened to be
Accident- an unavoidable and unforeseeable event killed unless he will join the rebellious movement. So what
was the threat? Which is greater, your life or joining the
2. You have a plant on your window. You were watering it, rebellion?
and you placed it a big pail of water by the plant. You did not But suppose, you were told, ―Kill your father otherwise I will
notice but imongnasik-hanangbalde! (hit by the elbow haha). burn your house.‖ Is it exempting? No, because the act
The pail fell on a person outside and eventually died. Liable? threatened is not equal or greater than the crime committed.
- Danghagka! So here, there was no prudence on your part. Basis: Complete absence of freedom
Lack of foresight. So LIABLE! Again, ―An act committed by me against my will is not my act.‖
Who is liable? The person who committed threat.
If all the elements in this paragraph is present, you Par. 7: INSUPERABLE CAUSE
are exempt and so there is NO CIVIL or CRIMINAL The person fails to perform an act required by law when
LIABILITY on your part. Generally in exempting prevented by some lawful or insuperable cause.
Take note that the accused here is required to perform an act What do you mean by degree? Degree refers to one entire
by law but he failed to perform such act because of some penalty. What are the different penalties used by the RPC.
lawful or insuperable cause. Let‘s go jump to Art. 71. Familiarize the different penalties.
Insuperable Cause
A cause which beyond his control.
1. Death
Example, a law officer has arrested a person caught in
flagrante delicto (caught in the act). A public officer who 2. Reclusion perpetua
arrested another person is required under the law to
immediately file a case against him within the period of 12, 18 3. Reclusion temporal
and 36 hours, depending upon the gravity of the crime 4. Prision mayor DEGREE
committed by the person arrested.
5. Prision correccional (One entire penalty)
Suppose he arrested the offender in the afternoon of Friday.
The next day, Saturday, there is no court. Sunday, the more. 6. Arresto mayor
He was only able to file a case in the early morning of Monday.
Suppose Monday is also a holiday, then the next day. Is he 7. Destierro
liable for Arbitrary Detention? NO, because fails to performing 8. Arresto menor
an act, which is to file a case against the arrested person, when
he was prevented from doing so by some lawful or insuperable
cause. So, the penalties here are arranged according to seriousness or
Basis: There is no criminal intent. gravity.
The circumstances under Art. 12 is Not Exclusive. What is the penalty one degree higher than that of Reclusion
There are instances, not mentioned in Art. 12 that also exempts Perpetua? Answer: Death. So, what is the penalty next lower in
a person from criminal liability, we call it Absolutory Causes. degree from Death? Reclusion Perpetua. From Reclusion
Absolutory Causes Perpetua? Reclusion Temporal. So and so forth.
The act committed is a crime but by reason of public policy Period
and sentiment, there is no penalty imposed. A period refers to one of the 3 equal portions of a divisible
Example is Art. 332. A relative who committed Estafa, Theft, or penalty. They are called divisible because the range can be
Malicious Mischief against a family member is exempt from divided into 3 equal periods: Minimum, Medium and
criminal liability Maximum. A period is applicable only to divisible penalties. It
INSTIGATION AND ENTRAPMENT cannot apply to indivisible penalties – Death and Reclusion
Favor subject of Bar Exams. Perpetua.
Instigation Memorize the periods!
What do you mean by Instigation as an absolutory cause? Time
The law enforcer or his agent instigates or practically induces included
another person to commit a crime. IOW, the person induced is in the MINIMU MEDIU MAXIMU
Divisible
not committing a crime before the inducement. But because he penalty M M M
Penalties
is being induced by the law enforcer, he committed a crime. in its (Period) (Period) (Period)
And after committing the crime, he is arrested by the law ENTIRET
enforcer. Liable? NO, because there is instigation. Y
Example, you were just sitting down when a police officer, Reclusion From 12 From 12 From 14 From 17
who was your neighbor said ―I heard shabu is for sale these days, Temporal years and years and years, 8 years, 4
why don’t you buy some and we use it‖. 1 day to 1 day to 14 months months
That is what we call instigation. The person is not liable by 20 years. years and and 1 and 1 day
reason of public policy. Otherwise, the person who induced 8 months. day to 17 to 20 years.
must also be held liable for being a principal by inducement years
Entrapment and 4
The law enforcer resorted to means or ways to capture or months.
arrest the offender in the act of committing the crime.
Meaning, the law enforcer arrested the offender after he Prision mayor, From 6 From 6 From 8 From 10
resorted to ways and means. The idea idea of committing a Absolute years and years and years years and 1
crime comes from the offender itself. Very common example, Disqualificati 1 day to 1 day to 8 and 1 day to 12
―buy bust operation‖. on and Special 12 years. years. day to 10 years.
Temporary years.
There are still other absolutory causes scattered in the RPC but
Disqualificati
the most favorite there is entrapment and instigation.
on
PERIOD AND DEGREE
Degree
Prision From 6 From 6 From 2 From 4 most of the requisites for justifying or exempting must be
Correccional, months months years, 4 years, 2 present.
Suspension and 1 day and 1 day months months There are times when a period is considered a degree – if that
and Destierro to 6 years. to 2 years and 1 and 1 day is expressly provided by law.
and 4 day to 4 to 6 years. Example. Look at the penalty for Sedition (Art. 139) – Prision
months. years Mayor in its Minimum period. The period there is used as a
and 2 degree and not period. So you further divide it into 3 periods
months. because that is divisible. But that is the exception. Generally, it
is one whole penalty.
Arresto Mayor From 1 From 1 to From 2 From 4 Privileged Mitigating Circumstances
month 2 months. months months
and 1 day and 1 and 1 day 3. When there are 2 or more ordinary mitigating
to months. day to 4 to 6 circumstances and no aggravating circumstance
months. months. The penalty can be lowered by one degree.
Arresto Menor From 1 to From 1 to From 11 From 21 to Only applicable to divisible penalties.
30 days. 10 days. to 20 30 days. If ordinary mitigating only, it is lowered to
days. minimum period.
Now, what is the importance of knowing the Mitigating Ordinary mitigating circumstances
Circumstances? are those mentioned in Article 13
Mitigating Circumstance In incomplete and justifying, the
Mitigating Circumstance will not relieve the offender from majority requisites must be present.
criminal liability, if he is liable. But, the penalty is lowered. Otherwise, if only one is present
There is discount, discounted! such as unlawful aggression, it is
So for example, the penalty is Reclusion Temporal and there is not anymore privileged mitigating
an Ordinary Mitigating Circumstance and no Aggravating but only ordinary mitigating
Circumstance, the penalty will be imposed in the Minimum. circumstance.
Provided that the Mitigating Circumstance present can be In ordinary mitigating circumstance
considered Ordinary Mitigating. where the penalty is lowered to the
But for example, no Mitigating, there is Aggravating – the minimum period, it will only be
penalty to be imposed will be in the Maximum. Don‘t forget used if the imposable penalty is
that we are talking here with years. Meaning to say, if your divisible.
penalty supposedly is 8 years, now it will be 12 years.
Another example, there is No Mitigating, no Aggravating, What is the difference between ordinary mitigating and
impose in the Medium. privileged mitigating?
Two Kinds of Mitigating Circumstances: Ordinary and - In PM, it can lower the penalty by one degree.
Privileged Whereas in OM, lowered only until the minimum
Privileged Mitigating period of the imposable penalty.
We have Minority. Provided, over 15 years but below 18 years - In PM particularly in minority, it cannot be offset by
who acted ―with discernment‖. Because a minor below 15 or any aggravating circumstance. It will always lower
above 15 or under 18 who acted without discernment is the penalty by one degree. Whereas OM can be offset
exempt from criminal liability. by aggravating circumstance.
Another privileged mitigating is Incomplete Justifying or - The PM can be applied even if the penalty imposable
Exempting Circumstances provided MOST of the elements are is indivisible. In other words, if a minor committed
present. murder where the penalty is reclusion perpetua
Example, there is unlawful aggression and there was no which is indivisible, the court cannot impose
sufficient provocation on the part of the person defending reclusion perpetua because of his minority. The
himself BUT the means used is not reasonable. That is an penalty will always be lowered by one degree even if
example of privileged mitigating. Provided further that, as the penalty imposable is indivisible.
regards self defense, defense of relatives, defense of strangers,
unlawful aggression must be present. ART 13 (1)
What is the effect of the presence of Privileged Mitigating? The - This refers to justifying or exempting circumstances
penalty will not only be lower by period but by degree. wherein not all of the requisites are present.
For example, a minor killed. That‘s homicide. The penalty to be - As regards self-defence, defence of relatives and
imposed is Reclusion Temporal, BUT since Minor, one degree defence of stranger, unlawful aggression must be
lower, Prision Mayor. Penalty is lowered by one degree. The present. If majority are present, then that is privileged
same with incomplete justifying or exempting provided that mitigating. If not, that is only ordinary mitigating.
- Voluntary Restitution of Stolen Property collecting civil liability against the accused then it can
- Voluntary Reimbursement of Malversed Funds be allowed.
(similar to voluntary plea of guilt) - If aggravating is present then moral and exemplary
- Extreme Poverty (similar to incomplete justifying of damages may be awarded.
state of necessity)
Mitigating circumstances is not applicable to all accused. Chapter Four
- Personal only to an accused CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL
- Not applicable to co-accused LIABILITY
o A and B committed a crime. A is a minor but B Art. 14. Aggravating circumstances. — The following are
is already of age. Minority only applies to A. aggravating circumstances:
The function of a mitigating circumstance will lower the Aggravating Circumstances
penalty imposed. There is a difference between penalty - The accused is very mean here so the penalty will be
imposable and penalty imposed. increased
- Penalty Imposable is penalty prescribed by law EX:
- Penalty Imposed is the penalty actually given Stealing inside the church,
depending on: Killing someone in his home,
o Stage One is a public officer and he uses his position to
o Mitigating circumstances commit the crime/to facilitate in the commission
o Aggravating circumstances of the crime,
Mitigating Aggravating Committed the crime during nighttime so that
Lowers the penalty Penalty Imposes the you will not be identified
to its minimum penalty in the - The presenceof this could be the basis for the court in
maximum awarding moral and exemplary damages and other
Lowers the degree 2 or more Present Only imposes the forms of damages to the victim, as well as attorneys
of the penalty without the other penalty in the fees
maximum - If that is the purpose of the prosecution then they
present evidence to hold the accused liable for
Aggravating Circumstances: damages then it can be allowed even if the
1. Generic – refers to aggravating circumstances which aggravating circumstance/s to be proved are not
are applicable to all crimes. alleged in the information/complaint
2. Specific – apply to particular crimes (treachery is only
applicable in crimes against persons) 1. That advantage be taken by the offender of his public
3. Qualifying- changes the nature of the crime to a more position.
serious offense - Offender is a public officer, a government employee
a. Evident premeditation or treachery raises - Why is it aggravating? The party officer here
homicide into murder committed a crime and he committed the crime
4. Inherent – necessarily included or accompany the abusing his position and had it not in his position he
commission of the crime, does not increase the could not have committed the crime
penalty imposed - It is not automatic that once you are a public officer
a. Part or one of the elements of the crime and you commit a crime, aggravating. It is not
i. Malversation – public officers automatic.
taking advantage of public - It must first be proved that the accuse abused his
authority. office/used his office in order to make it easier for
ii. Robbery - Evident Premeditation him to commit the crime or because of this public
5. Special – arise under specified conditions to raise the office or of not because of this public office he could
penalty not have committed the crime
a. Cannot be offset by any ordinary mitigating EX:
circumstances You are a policeman you are assigned as a jailer.
Aggravating Circumstances While being assigned as a jailer you killed a
1. Must be alleged prisoner. If you were not a police, you could not
2. Proven during trial. have been assigned as a jailer or guard for the
prisoner. You could not have also killed him or
If it is proven but not alleged then it cannot be considered. If it you could not have committed the crime.
is alleged but not proven, it cannot be considered as well to o There was abuse of your position so
increase the penalty. because of that it is considered
- Exc. If the prosecution wants to present evidence, not aggravating.
for the increase of the penalty but for purposes
- The accused took advantage of his public position, in informal settlers along the creek or along the
order to be considered aggravating river. Suppose in his presence, in front of him the
EX: offender stabbed another person. Is it not an
The accused is a policeman and he used in killing insult on the part of the mayor?
his victim his service firearm. Is the use of his o That is an insult.
service firearm considered aggravating? (PP o This aggravating circumstance is
vsVillamor, January 15, 2002) present. The crime is committed in
o No contempt of or with insult to a person in
o In order to be considered aggravating it authority.
must be proved that the accused took - The public officer here is performing his duties
advantage of his position. outside his office.
o The mere fact that the accused who used EX:
his service firearm in the commission of The barangay captain was supervising a disco
the crime is not considered aggravating. party in his barangay. While checking up on
- As what we have said earlier, although as a rule the whether there was peace and order in the disco
presence of aggravating circumstances will party a man suddenly stabbed another person in
necessitate the imposition of the penalty in the front of him. Is this aggravating circumstance
maximum period but when that aggravating present?
circumstance is already inherent in the commission of o Yes
the crime, the same will not anymore be considered. o The crime was committed with insult to
That aggravating circumstance will not anymore be the public authority.
considered to increase the penalty. On TV, wherein there‘s a part that they catch a
EX: thief or snatcher or killer or one who stabbed
A policeman committed murder or homicide another and then the victim or relatives comes
because he killed the prisoner. out in front of the police then boxes the accused.
o Being a public officer is not an element If a case is filed against the suspect, will it be
of homicide or murder. The aggravating considered or appreciated an aggravating
circumstance will be considered to circumstance?
increase the penalty to the maximum o No
period. o The crime was not committed in the
The policeman is assigned as a custodian of a presence of a person in authority but
public property but he misused it and he is merely an agent.
charged with malversation. - The crime must not be committed against the public
o In the crime of malversation, public officer. The crime is merely committed in front or in
office or being a public officer is already the presence of the public officer. The victim is not the
inherent. And because it is already public officer himself.
inherent, the mere fact that he is a public - It is still an aggravating circumstance if the public
officer will not anymore increase the officer is the victim but this is not the correct
penalty. provision but under Par 5. It falls under a different
circumstance.
2. That the crime be committed in contempt of or with - In order to be aggravating, it is necessary that the
insult to the public authorities. accused must know that he committed the crime in
- What do you mean by pubic authority? This refers to the presence of a person in authority.
persons in authority.
- Who are persons in authority? We have barangay EX:
captain, barangay councilors under the LGC, mayor, He knows that he is a barangay captain but he
governor, judges does not know that a barangay captain is a
- The accused here committed the crime in the presence person in authority.
of a person in authority who is performing his duties o Ignorance of the law.
outside his office o The same will not excuse him.
- Are there public officers who in performing his duties - The public officer must be performing his duties
do it outside of his office? Yes, like mayors when they outside his office.
inspect drainage project or schools being built.
EX: 3. That the act be committed with insult or in
Suppose the mayor while inspecting a particular disregard of the respect due the offended party on
project, which is supervising or overseeing the account of his rank, age, or sex, or that the crime is
clearing of the sidewalk or clearing of the
committed in the dwelling of the offended party, if facts and you may be required to enumerate what are
the latter has not given provocation. the aggravating or mitigating circumstances present
- There are 4 aggravating circumstances here and you would be required to explain why you
1. Disrespect of the offended party on account of his rank considered it as an aggravating or mitigating
o What should one do when a person has a circumstances. So we should understand this.
high rank? The accused should respect him. 4. Dwelling
o What happens if one disrespects him? You o In order for dwelling to be considered the
instead stab him. That is aggravating. building or structure must be exclusively
o Rank refers to the high social standing or used only for rest and comfort.
position. So, in to other words there must be A combination of house and store that is
a difference in the social standing or social not considered a dwelling. (PP
condition between the offender and the vsMagnaye, 89 Phil 233, 239)
offended party in order for this aggravating A market stall that is used as sleeping
circumstance to be considered. quarter for the owner of the stall cannot
EX: be considered a dwelling.
Accused is just a civilian and the victim is a o In order to be considered aggravating, the
general of the Philippine army. crime must be committed inside the
o There is disregard of his rank. dwelling of the victim.
2. Disrespect of his age o It could be that the accused is outside the
o Supposed to be that when one is already a dwelling while the victim is inside his
senior citizen, one should respect him dwelling.
o Suppose that instead of respecting him, you EX:
stabbed or killed him He is standing near the window while the
EX: accused was outside then he shot him from here.
A 90-year sold is being stabbed by a 20 years old. That could still be aggravating.
o There could be lack of respect on o Dwelling also includes dependencies, such
account of his age. as garage, foot of the staircase, and enclosure
3. Disrespect of his age under the house. (US vsTapan, 211, 213, PP vs
o Sex here refers to a female Alcala, 46 Phil 739, 744)
EX: o If the victim is killed while she is climbing
The accused in order to take revenge since he had up the stairs, that would be considered
a relative that was killed by that group. He killed aggravating since it is part of the dwelling.
the female members of that group who killed his EX:
relatives. He selected and killed a female relative If the victim is a mere visitor because it was a
of the killers in retaliation. (PP vsDayug, 49 Phil fiestaand he was seen by his enemy then was
423, 427) killed. Aggravating?
o This is aggravating. TN that in order to be considered
Direct assault upon a lady teacher. (Sarcepuedesvs aggravating the victim must be the
PP, 90 Phil 230, PP vsManapat, CA, 51 OG 894) owner of the dwelling or house where
o This aggravating circumstance, lack of he is killed or at least he must have been
respect on account of sex was also staying there as a bed spacer, lessee, or
considered. boarder, or even as mere guest.
o Sex is inherent in the crime of rape Guest – must have been
EX: staying there not a casual guest
A 90-year old woman is being raped. What EX:
aggravating circumstances are present in the The victims, while sleeping as guests in the
case? house of another person, were shot to death in
o Age that house were killed. Dwelling was considered
o What about sex? It is not anymore aggravating. (PP vsBasa, 83 Phil 622, 624)
considered because it is inherent in that o The offender and the offended party are
crime. occupants of the same house? Dwelling is not
- In order to be considered, it must be shown that the aggravating.
accused deliberately insulted or disrespected the o EXCEPT: in adultery
offended party on account or despite of his rank, o The SC considered dwelling as
despite of his age, or sex an aggravating circumstance
***These should be memorized or familiarized since when adultery is committed in
bar questions or in the bar, you will be given a set of the dwelling of the husband
The public authority The public authority aggravating circumstance that the crime was committed in
MAY BE THE should NOT be the a place dedicated to religious worship, present here?
OFFENDED PARTY. offended party.
Case: Remember that case of the Canadian who A: NO. Because in order to be considered
aggravating, the offender must already have the
intruded the court? He killed the lawyer and the
intention to commit the crime when she entered the
doctor- plaintiff inside the court, nuon at that
place. In this case, the SC said that the accused did not
time the hearing hasn't started yet.
have murder in her heart when she entered the chapel
because in the first place she did not know that the
4. The crime is committed in a place dedicated to
religious worship. victim would be there, so this circumstance was not
considered in imposing the penalty. People vs Jaurigue,
76 Phil 174
- Example: When a thief or pickpocket took away your
cellphone while you were in a mass. What
Par. 6 That the crime be committed (1) in nighttime, or (2) in
aggravating circumstance is present in this case? Ans.
an uninhabited place, or (3) by a band, whenever such
That the crime was committed in a place dedicated to
circumstance may facilitate the commission of the offense.
religious worship.
1. Nighttime
- Examples of places dedicated to religious worship:
- means from dusk to dawn.
o Church
o Temple
- Q: Is it automatic that when a crime is committed
o Chapel
during nighttime, nighttime is aggravating?
o Mosques
A: NO. For it to be considered aggravating, nighttime
should be
- Q: What is the reason why it is considered
1. especially sought for by the offender to
aggravating?
insure the commission of the crime or for the
purpose of impunity; or
A: Lack of respect of the place. HE committed the
2. that it facilitated the commission of the
crime in a place which should be considered holy.
crime; or
3. that the offender took advantage thereof for
- Q: How about if the crime was committed in a
the purpose of impunity.
CEMETERY?
- Example: The accused, in order to kill the victim
A: The Supreme Court in one case said NO.
purposely waited for him at a dark place, so
Cemeteries are not such a place, however respectable
nighttime is aggravating.
they may be, as they are not dedicated to the worship
of God.
- Q: What about if the crime was committed at
nighttime but the place was lighted, let‘s say at
- Case: There‘s this girl (accused) who was so pissed
Fuente Osmena? Is nighttime aggravating?
about this guy (victim) who often confesses his
affection for her and who at that time was courting
A: NO. It must be dark. If it is lighted then of course
her. She gets irritated everytime she sees the guy
nighttime did not facilitate the commission of the
because he is bastos and touchy. And so one time, she
crime. It negates the notion that the accused had
started bringing a knife with her wherever she goes. It
especially sought or taken advantage of nighttime in
so happened that while inside the chapel for a novena
order to facilitate the commission of the crime.
the accused came, sat beside her and started
confessing and touching her again. And so the girl got
- The only question you have to take note of is ―Did the
his knife and stabbed him. The victim died. Is the
accused purposely commit the crime at nighttime to
consummate the commission of the crime?‖ If the answer Par. 7. That the crime be committed on the occasion of a
is yes then that is aggravating. conflagration, shipwreck, earthquake, epidemic or other
calamity or misfortune.
2. Uninhabitted place
- Meaning the houses are so far from each other that it would Conflagration- during fire.
be hard for the victim to receive some help. Specially in
remote places, ie. in the mountains. - Example: While the victim is occupied securing his
things, the accused commits robbery.
- If the accused specially committed the crime in a
place where the houses are very far from each other - Example: That time when one person screamed
or there are no persons staying in that place then that ―Tsunami!‖ causing the people to ran up the
is aggravating. mountains leaving behind their houses. Then the
accused took advantage and stole things from these
- IF THE CRIME IS COMMITTED IN THE MIDDLE houses. What aggravating circumstance is present in this
OF THE SEA. case? Ans. That the crime was committed on the
occasion of epidemic or calamity or misfortune.
For example the victim is a member of Bantay Dagat
(that who apprehends illegal fishermen). The accused - Case: There was this bus accident in Talisay, where
believing that the victim was the one who reported people in the vicinity finished the lives of the accident
him, waited for the victim at the middle of the sea and survivors to consummate robbery, at the same time
stabbed him. What aggravating circumstance is eliminate witnesses. So this aggravating circumstance
committed in that case? is present.
Ans. That the crime was committed in an uninhabited Par. 8 That the crime be committed with the aid of (1) armed
place. It is aggravating because the crime was men, or (2) persons who insure or afford impunity.
perpetrated in the OPEN SEA, where no help could
be expected by the victim and the offender could With the aid of armed men By a band (par. 6)
easily escape punishment. (par. 8)
If less than 4 armed At least 4 armed malefactors
- The offender took advantage thereof for the purpose malefactors.
of impunity. They may or may not All must have participated in
participate in the crime. the commission of the crime.
3. By a band
- Band is present where there are more than 3 armed
malefactors who have acted together in the commission of - Aid of armed men is absorbed when band is present.
the crime. In other words, band is present where there - ―Armed men‖ includes armed women.
are at least 4 armed malefactors.
Par. 9. That the accused is a recidivist.
- Example: If there are 10 of them but only 3 are armed, Who is a recidivist?
is band present? NO. There must be at least 4 persons.
- One who, at the time of his trial for one crime, shall have
- Case: A rock is considered a deadly weapon. So if 3 been previously convicted by final judgment of another
have knives while one has a rock then there is band. crime embraced in the same title of the RPC.
ALL THE ARMED MEN, AT LEAST 4 IN NUMBER - Note: To know if an offender is a recidivist, it is
MUST TAKE DIRECT PARTICIPATION IN THE important to know the different crimes under a
COMMISSION OF THE CRIME. particular title.
- So if one of the 4 armed persons is a principal by The reckoning period here is at the time of trial.
inducement then they do not form a band.
Multi-recedivism / Habitual delinquency – - A person who committed such has his own reason other than
the price, reward or promise; not aggravating
ELEMENTS:
- the price, reward or promise must be made prior to the
1. Accused committed 3 crimes; 2 of which are already final commission of the crime
and executor or could have serve sentence and at the same
time under trial for another crime. So for example, you did not agree with your neighbor, and the
latter killed your enemy, and after the killing you gave him a
2. Crimes committed could either be or a combination of the ff: bonus, aggravating? No. In order for it to be aggravating, the
a. Falsification
giving of the price, reward or promise must be the primary
b. Estafa
c. Theft consideration why the crime was committed.
d Robbery
e. Less serious and serious physical injuries Par. 12. Crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel, or intentional damage
3. That the time interval must not exceed 10yrs from conviction thereto; derailment of a locomotive or a by the use of any other
or release. artifice involving great waste and ruin.
15. That advantage be taken of superior strength, or means be True even if it was not shown or proved how the
employed to weaken the defense. attack was done. Treachery is always present. If there
is treachery, normally, the prosecution must prove the
When can you say that the offender/s is/are superior in means, methods and forms of attack, for it to be
strength? considered. But if the victim is a child, there is no
- superior in number need for the prosecution to prove these.
- superior in weapon/arms Not necessary that wounds must be found at the back
- superior in force of the victim to consider treachery
**But TN that the above is not automatic. It must be shown that Though wounds are frontal, it does not necessarily
those people TOOK ADVANTAGE of their superiority. follow that there was no treachery.
Treachery must be established by PROOF BEYOND
No advantage of superior strength in the ff: REASONABLE DOUBT. It can never be presumed.
- when a quarrel arose unexpectedly and the fatal blow was
struck at a time when the aggressor and his victim were Aggravating Circumstances that are absorbed in Treachery:
engaged against each other as man to man 1. Abuse of superior strength
- when the offender attacks another with passion and 2. Aid of armed men
obfuscation 3. Band
4. Means to weaken the defense
Advantage of superior strength present: 5. Nighttime
-accused killed a 6 month old baby/ 5 yr old child of tender 6. Craft
years. TN(take note) the killing of a child may be taking 7. Age
advantage of SS/ treachery. 8. Sex
9. Poison
Means to weaken the defense
e.g. Problems:
- the accused let the victim drink plenty of wine until the latter 1. X and Y were having a fist fight. In the course of their fist
got drunk and killed him fight, Y pulled a knife. When X noticed this, he ran away from
- accused threw sand on the eyes of the victim/used pepper Y and the latter chased him. X stumbled on a stone and wasn‘t
spray able to get up anymore. Y caught up and stabbed X in the back
by Y. Is there treachery?
16. That the act be committed with treachery (alevosia). - NO.In order for treachery to be considered, treachery must be
There is treachery when the offender commits any of the present at the inception/start of the fight. Here, at the start of
crimes against the person, employing means, methods, or the fight there was no treachery because they were having a
forms in the execution thereof which tend directly and fist fight. At the end of the fight, when Y stabbed X when latter
specially to insure its execution, without risk to himself was defenseless, treachery cannot be appreciated.
arising from the defense which the offended party might
make.
2. X planned to kill the governor. X went inside the governor‘s
office and had a short talk. When X noticed that the governor
Treachery
was not armed, X shot and was able to hit the former‘s
- when the offender commits any of the crimes against the
shoulder. The governor ran and ran until he was cornered. He
person, employing means, methods or forms in the execution
found a cabinet, and so the governor went inside it and locked
thereof which tend directly and specially to insure its
himself, and shouted for help. The accused, X, stopped for a
execution without risk to himself arising from the defense
while, and tried to discern by looking at the cabinet, where the
which the offended party/ victim might make.
head of the governor was. Afterwhich, X shot the cabinet,
- theattack here is sudden and unexpected; the means used must
where he thought the head was, and the governor died. Was
be deliberate
there treachery?
- the essence of treachery is that the victim does not have the
- SC said that at the start of the fight, there was no treachery
opportunity to put up a defense
because the governor was able to run away. But considering
that there was a break in the continuity in the attack – when X
e.g. The victim and the accused had an argument. Suddenly Y
stopped for a while and tried to discern where the head of the
pulled a knife and stabbed X. Is there treachery?
governor was – there was already treachery. (US vs Baluyot. 40
- No. The attack may be sudden, but it was not
Phil. 385) – ―If there was a break in the continuity of the
unexpected considering they had a heated argument.
aggression and at the time the fatal wound was inflicted on the
deceased he was defenseless, the circumstance of treachery
Take note:
must be taken into account.‖ (pg445 of JBL Reyes‘ book)
Killing of a child of tender years is always murder.
Again, Abuse of Superior Strength/Treachery is
present because the child could not put up a defense.
Remember, treachery can be appreciated even if there is error Par. 19: A WALL, ROOF, FLOOR, DOOR, OR WINDOW BE
in personae or aberratio ictus. It can be appreciated even if the BROKEN
victim is different from that intended to be killed.
This is inherent in Robbery with force upon things. It will not
This is different from evident premeditation. There is no anymore increase the penalty
premeditation if there is a wrong victim. It cannot be
Par. 20: (1) WITH THE AID OF MINORS OR (2) BY MEANS
appreciated if the victim is different from that person
OF MOTOR VEHICLES
intended to be the victim.
(1) With the aid of Minors
Par. 17: IGNOMINY
(2) By means of motor vehicles
Ignominy The motor vehicle here must be used not only for escape but
as means for the commission of the crime. Meaning, the motor
This refers to moral suffering which adds disgrace to the
vehicle here is used to facilitate or to make it easier the
material injury which is caused by the crime.
commission of the crime and also for easy escape.
PP vs. Jose, 37 SCRA 450
Example:
The victim there was Maggie dela Riva. She was kidnapped
Mr. Y wanted to kill Mr. X. In order for him to kill Mr. X, he
and brought to a secluded place. The accused before raping
borrowed a motor vehicle, followed Mr. X and after the
her, ordered her to dance naked in front of them.
killing, used the same motor vehicle for his easy escape.
Other examples:
Bar Question
When the accused put cogon grass around his organ
when he raped the victim. The accused was driving recklessly. He hit a pedestrian.
When a married woman was raped in the presence When he looked back, he noticed that the pedestrian was still
of the husband. moving. So he backed up his car and killed the pedestrian.
When the accused raped the victim from behind. What was the crime committed?
PP vs. Regala, 329 SCRA 709
The accused committed Murder because there was treachery.
According to the SC, there is no law providing that additional What was appreciated in the case was not means of motor
Rape or Homicide committed on occasion of Robbery should vehicle but treachery.
be considered as aggravating circumstance. A penal law
What about bicycle? Is it aggravating? NO. A bicycle is not a
should be construed in favor of the accused and no person
motor vehicle.
should be brought according to its terms if it is not clearly
made so by the statute. The SC said that Rape committed on Par. 21: CRUELTY
occasion or during the commission of Robbery with Homicide
cannot be considered as Ignominy because there is no such Cruelty
law providing for such and the doubt should be resolved in
favor of the accused. Refers to physical suffering when the accused enjoys and
delights in making his victim suffer slowly and gradually
The SC further stated that there is no such provision as causing unnecessary physical pain in the consummation of
―analogous circumstances‖ under Art. 14 – Unlike in Art. 13. the criminal act.
Therefore, the enumeration in Art. 13 are Exclusive.
Example:
Par. 18: UNLAWFUL ENTRY
Before killing the victim, his nails were removed. After it MC (the accused must really be drunk). There is
removing the nails, his fingers were dipped in vinegar. diminution of intelligence.
by. His father kept on cheering for him so he each other in raping W. When it was H who
kept on stabbing. F, father of S as well as S was having sex with W, Y was the one
was charged with murder. S as principal by holding the hands and feet of W. When it
direct participation because he was the one was the turn of Y to have sex with W, it was
who stabbed the victim and F was the one H who held the hands and feet of W. (PP vs
who shouted at S while S was still in the act Fernandez, 183 SCRA 511)
of stabbing Y. Are both of them liable? o According to the SC, two of them
o There is no question as to S. are liable for two counts of rape.
o How about F? Look at the elements. When it was H who was
(***Memorize the elements) committing sexual intercourse with
In a subdivision, a group of females were W while Y was holding the hands, Y
talking about their husbands. One kept was considered principal by
complaining about his husband that he indispensable cooperation and H
would often come home late since he came was considered as principal by
from the bar. So her neighbor advised her to direct participation. And vice-versa.
put poison. The wife also did what her - Indispensable meaning the crime could not have been
neighbor advised her to do when her committed without the act of the accused
husband came home. The wife was charged EX:
with parricide while the neighbor was While the accused was stabbing the victim
charged with murder as principal by the co-accused held the victim and killed the
inducement. Is the neighbor liable? (US vs victim.
Indanan) o The SC said that the one who
o No stabbed the victim was principal by
o A thoughtless expression without direct participation while the one
intention to produce the result is not who helped the victim was
an inducement to commit a crime considered as principal by
o An imprudent advice does not indispensable cooperation.
constitute an inducement - TN of those 3 kinds of principals
- He is not in conspiracy with the other accused or the in the evil desire of X. So he had
principal liability.
o Because if he is in conspiracy with the X borrowed a firearm from M. He is now in
principal then he be considered a principal the place of Y and saw him sleeping under
already not an accomplice the mango tree. X then thought of just
- 2 ways of becoming an accomplice: stabbing him so that the gunshots would not
1. by committing an act prior to the commission of be heard by the neighbors and Y cannot also
the crime, or put up a fight since he was sleeping. So X
EX: stabbed him. Someone saw X killing Y. What
is the liability of M as to killing of Y?
X wanted to kill Y. X had a friend who had a o M is not anymore liable as an
motorcycle so he went to M and borrowed accomplice.
his motorcycle. M asked him what it was for o Aside from the rule that there is no
and he answered that he was planning to kill conspiracy; the act of the accomplice
Y. So X was able to kill Y with the use of the must have cooperated or relation
motorcycle of M. What is the liability of M? with the commission of the crime. In
o He is an accomplice. the problem given, the act of M in
o Is there conspiracy between them? lending his firearm did not anymore
Does M have a planning on killing contribute to the killing of Y. He is
Y? No, there is no conspiracy. not anymore liable.
o His liability is only that of an 2. by an act at the time of the commission of the
accomplice. He performed an act; he crime
cooperated in the commission of the EX:
crime by previous act. Had M
refused to lend his motorcycle, X X boxed Y. M and X were members of Crips.
could have borrowed or hired M upon seeing X boxing Y also joined in. M
another motorcycle in order to fulfill was bringing a knife and stabbed Y. After
or commit the crime. stabbing, even if X saw M stabbing Y, X still
X wanted to kill Y. X borrowed a gun from M continued boxing Y. Y then died thereafter.
and told him about his plan on killing Y. X When autopsy examination was conducted,
was able to kill Y but the police caught him. it was found out that the death of Y was due
He then told the police that he borrowed the to the stabbing, not due to the boxing. What
gun from M. The police asked if M knew is the liability of the two? What are their
about the plan and he answered that he did liabilities?
know his plan. What is the liability of M? o M is liable as principal because his
o M is an accomplice. act was the cause of the death of Y.
o Why could he not be considered a Principal by direct participation.
principal by indispensable o X could just be held liable as an
cooperation? TN that X was accomplice because when he
determined to kill Y. Without the continued boxing Y despite the fact
gun, X can find another way like that he already knew that M
stabbing him or look for another stabbed Y, X in a way concurred in
gun. In other words, the act of M in the criminal design of M.
lending his firearm is merely
necessary but not indispensable. Art. 18. Accomplices- are the persons not being included in
Even if M declined or refused to Article 17, cooperate in the execution of the offense by previous
lend his firearm, just the same X or simultaneous acts.
could have committed the crime.
o The liability of M is that of an
Summary of liabilities:
accomplice because there was no
conspiracy between them. He
merely concurred in the criminal 1. Separate- if the act of the accused is not found to be in
plan of X. concurrence with the act of the principal.
o The act of letting X borrow the 2. Quasi- collective- if there is no conspiracy
motorcycle or the gun, it meant that 3. Collective- if there is conspiracy (includes implied
he agreed to the plan or concurred conspiracy).
LIABILITY IS SEPARATE. - Being present and giving moral support when a crime
is being committed will make a person responsible as
- Example: The players ended up in a clash after a an accomplice in the crime committed. This may be
basketball game. X threw punches on Y. Upon seeing through support, advice, encouragement or
it, F, the teammate of X stabbed Y. X was taken aback agreement. Through external acts.
after the stabbing, he was shocked and motionless
and so they brought him to the hospital but he was Article 19. Accessories. - Accessories are those who, having
dead on arrival. What is the liability of X? knowledge of the commission of the crime, and without having
participated therein, either as principals or accomplices, take
Ans. His liability is separate. It is merely that of part subsequent to its commission in any of the following
physical injuries. Because he did not anymore box Mr. manners:
Y when F stabbed him. It cannot be said anymore that
he concurred in the criminal design of F. 1. By profiting themselves or assisting the offender to profit
by the effects of the crime.
LIABILITY IS QUASI- COLLECTIVE 2. By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
- In the earlier example where X continued boxing Y discovery.
even after F stabbed Y, their liability is quasi- collective. 3. By harboring, concealing, or assisting in the escape of the
Here X was considered an accomplice of F. principals of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of
LIABILITY IS THAT OF A PRINCIPAL
the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known
- If X and F after the basketball game agreed and
to be habitually guilty of some other crime.
decided to kill Y then there is already conspiracy, they
are both principals.
Accessory before the fact- Accomplice
Accessory after the fact- Accessory proper
- Case of implied conspiracy: Where while X was boxing
Y, F approached and stabbed Y. Upon seeing it, X got
- Q: What do you mean by accessory?
a rock and hit Y and so the latter died. Here they are
both considered principals by direct participation.
Ans. Accessory- one with knowledge of the
There is in this case an implied conspiracy.
commission of the crime but has not participated in
RULE: To be liable only as an accomplice there must be no the commission thereof, either as a principal or an
conspiracy with the principal by direct participation accomplice. He performed acts AFTER the
commission the crime.
- But it is necessary that the accomplice must have
knowledge of the criminal design of the principal. SPECIFIC ACTS OF ACCESSORIES:
Because if he is not aware of the criminal design, he is
1. By profiting themselves or assisting the offender to
not liable.
profit by the effects of the crime.
- What is the liability of the buyer? He is also an - How about those engaged in buy and sell? They are
accessory. Because by buying he also assisted the required to obtain clearance from the PNP.
principal to profit by the effects of the crime. But TN
that he must have knowledge regarding the theft THEREFORE, A PERSON WHO WOULD BUY PROCEEDS
because if he had no knowledge, he cannot be liable OF THEFT OR ROBBERY COULD BE HELD LIABLE AS:
as an accessory for theft. 1. An ACCESSORY to the crime of theft or robbery
as the case may be; AND
- You might ask how could he know the cellphone was 2. A PRINCIPAL under the Anti Fencing Law.
stolen? Ans. By asking the vendor or by the price itself.
The buyer must be wary and watchful because note There is no double jeopardy. Because when an act
that a buyer can also be held liable as PRINCIPAL for is punishable under the RPC and at the same
a violation of a special law: PD 1612 or the ANTI time punishable under a special law, there is no
FENCING LAW. double jeopardy because there are two different
laws penalizing such act.
Fencing- is the act of any person who, with intent to
gain for himself or for another, shall buy, receive, - But if they initially agreed that one will snatch and
possess, keep, acquire, conceal, sell or dispose of, or the other will later on sell the property, then they are
shall buy and sell, or in any other manner deal in any both liable as principals to the crime of theft.
article, item, object or anything of value which he Therefore there must be no conspiracy between the
knows, OR SHOULD BE KNOWN TO HIM, to have supposed -accessory and the principal.
been derived from the proceeds of the crime of robbery
or theft. 2. By concealing or destroying the body of the crime, or
the effects or instruments thereof, in order to prevent
- So PD 1612 is applicable only to stolen or robbed its discovery.
items. It is not applicable to other crimes.
- Q: What would be these acts to conceal the crime?
Fence includes any person, firm, association
corporation or partnership or other organization Ans. By hiding the instrument used in the commission
who/which commits the act of fencing. of the crime. For example: You hid the knife used in
the commission of the crime or you wiped the blood
- So a corporation can be considered an accused in it. This is now concealing because you are
here but as we already learned earlier only the tampering the evidence that will establish the crime.
officers can be held criminally liable.
- ―Body of the crime‖- the proof of the commission of the
- The penalty is prision mayor, if the value of the crime. This is not the body of the dead person.
property involved is more than 12,000 pesos but
not exceeding 22,000 pesos. Note that the penalty - Example: You visited your neighbour and caught him
is almost the same with that in the crime of theft. in the act of concealing the body of the victim who he
just killed earlier. He asked you to help him drag the
Section 5. Presumption of Fencing. Mere possession of
body to bury it. What is your liability? Ans. You are an
any good, article, item, object, or anything of value
accessory because you performed an act to destroy
which has been the subject of robbery or thievery
the proof of the commission of the crime, or the
shall be prima facie evidence of fencing.
effects or instruments thereof, in order to prevent its
- What do you mean by prima facie evidence of fencing? discovery.
Meaning you are presumed to have stolen the
property if found to be in possession of it. It is - Example: Your classmate invites and treats you to
incumbent upon you to present evidence that Jollibee (sky is the limit!). While you were eating you
you acquired it in good faith. asked your friend why he has a lot of money. Your
friend, who happened to be the cashier in the
municipal office told you that a lot had paid taxes in
the office earlier. What is the crime committed by your natural for a relative to help the principal of the crime
friend? Ans. Malversation. prompted by love and affection.
What is your liability? Ans. Accessory to the crime of However you could be held liable for PD 1829 since it is a
Malversation. That‘s why if somebody treats you out, special law and the said law doesn‘t provide exemptions.
do not ask where he got his money because your
June 15, 2016
knowledge will make you an accessory.
Part 7
Notes:
ANTI-FENCING LAW (PD 1612)
In paragraph 3, there are 2 accessories, those who are public
There is no Fencing if there is no Theft or Robbery committed.
officers or govt. employees and accessories who are civilians.
Question: Is it necessary that the robber/thief should also be
What are these acts? By harboring, concealing or assisting the charged with Theft or Robbery?
escape of the principal with abuse of your public function. If
the accessory is a public officer, then he is liable for any crime Case in Point:
committed by the principal when he/she abused his
function/office to help escape the principal. Capili vs CA, GR No. 139250, August 15, 2000
Tan vs. People, GR 134298, August 26, 1999
Now, whereas if the person performing the acts under par. 3 is
a civilian, in order to be held liable as an accessory, the crime
committed by the principal should ONLY BE: Murder, ART. 21: PENALTIES THAT MAY BE IMPOSED
parricide, attempt on the life of the Chief executive, treason or
What do you mean by Penalty?
the principal is a habitual delinquent. These are the only
instances wherein a civilian could be held liable as an – Suffering inflicted by the State for the transgression of
accessory for doing acts enumerated in par. 3. the law.
So for example a civilian who knows that the principal has What are the conditions of Penalty?
committed malversation would hide him in his house, is he
– Penalty must be productive of suffering without
liable as an accessory? No, since the crime committed by the however affecting the integrity of human being.
principal is not those enumerated in paragraph 3. However – It must be commensurate with the offense
you will instead be liable as a principal for obstruction of committed – different crimes must be punished
justice under PD 1829. with different penalties.
– It must be personal – no one should be punished
Article 20. Accessories who are exempt from liability for the crime of another.
– It must be legal – it is a consequence of a judgment
Those who are: in accordance with law.
– It must be certain – no one may escape its effects.
1. Spouses – It must be equal for all.
2. Ascendants – It must be correctional.
3. Descendants Three (3) purposes of Penalty:
4. Relatives by affinity with same degree
5. Legitimate, natural, and adopted brothers and sisters 1. Retribution or Expiation
-with the single exception of accessories falling within the 2. Correction or Reformation
provisions of paragraph 1 of article 19 3. Social Defense
They are exempt from criminal liability if they would conceal ―There is no crime if there is no law punishing it.‖
the effects of the crime, or harbor the criminal, however not
ART. 23: EFFECT OF PARDON BY THE OFFENDED PARTY
exempt if they profit from said crime under paragraph 1. Why
is this? Because if they commit acts under par.1 of article 19,
What is the effect if the private offended party forgives or
they are fueled with greed. Unlike in par. 2 and 3, it is but
pardons the accused? Would the crime he committed be
considered extinguished?
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
In a criminal case, a private offended party is considered a related, you will be subjected to
mere witness in the commission of the crime because the real preventive suspension so that you cannot
offended party is the State, the government. That is why in a tamper with the evidence or harass the
witness
criminal case, the complainant is the People of the
Philippines. Therefore, if ever the private offended party 4. Fines and other corrective measures which, the
would forgive the accused, the crime would not be completely exercise of their administrative or disciplinary
extinguished. What is extinguished is just the civil liability. powers, superior officials may impose upon their
subordinate
Whenever a crime is committed, there could be two (2) 5. Deprivation of rights and the reparations which the
civil law may impose in penal form
victims – the State and the private offended party. Now, the
– Such as deprivation of parental authority
pardon extended by the private offended party, as a rule, of parents found guilty of corruption of
would not extinguish the criminal action. minors
In reality, there is no crime penalized with bond to keep - PrisionCorreccional, Suspension and Destierro– 6
the peace. Although in Article 282, 283 and 284, there was mons and 1 day to 6 yrs
a crime penalized with ―bond for good behavior‖. But - Arresto Mayor – 1 mon and 1 day to 6 mons
- ArrestoMenor – 1 day to 30 days
according to Boado, these two are different. Failure to
post ―bond for good behavior‖ will make the accused Reclusion Perpetua
suffer Destierro but failure to post ―bond to keep the - It has a period. (Different from Life Imprisonment
peace‖ will make the accused suffer Detention. which does not have a period)
- Has accessory penalty (unlike life imprisonment)
Accessory Penalty/ies - Remains to be indivisible
Ppvs Lucas, Jan 9, 1995 – amendment to
Those that are deemed included in the imposition of the duration did not mean that it has reclassified
principal penalty/ies. This are those that are necessarily as a divisible penalty
included if ever the court imposes a principal penalty. (Ikog)
Art. 28. Computation of Penalties
- if offender is imprisoned
This refers to Perpetual or Temporary Absolute
then the computation shall start from the
Disqualification, Perpetual or Temporary Special
day the decision becomes final
Disqualification, Suspension from Public Office, the right to - If offender is not imprisoned
vote and be voted for, Suspension from the Exercise of then the computation shall start from the
Profession or Calling, Civil Interdiction, Indemnification, day that the offender is placed under the
Forfeiture or Confiscation of Instruments and Proceeds of the custody of the judicial authorities
Offense and Payment of Cost. - Before conviction, if accused is imprisoned
He is called detention prisoner
the imprisonment is not a penalty but a
Now, you may notice that Disqualification and Suspension are
preventive detention
also considered as principal penalties. At the same time, there
are instances that they are used as accessory penalties. IOW, Art. 29. PREVENTIVE DETENTION/IMPRISONMENT
there are provisions of the RPC which uses them as principal - The preventive imprisonment of the accused shall be
penalty and also, accessory penalties. deducted from the penalty imposed
So while he is imprisoned, if he has not yet
Civil Interdiction convicted, that will be deducted from his
sentence imposed by the Court. Meaning, if
accused will be convicted, it shall only be
A person who is suffering from civil interdiction cannot
deducted.
exercise his rights. He is civilly dead. An example is a person
- Shall be credited in their service of sentence which
found guilty of a crime penalized by Reclusion Perpetua. must consist of deprivation of liberty like
The court cannot impose a penalty which is not provided or imprisonment.
different from that provided by law. Example is the imposition - Fine
of hard labor in addition to penalty imposed by law. Does not consist deprivation of liberty
- Destierro
Art 26. FINE Deprivation of liberty
- A fine will be imposed as a single or alternative Preventive detention shall be deducted from
penalty shall be considered as: sentence
Afflictive – if it exceeds 6,000
Correccional – if it does not exceed 6,000 When is there preventive imprisonment?
Light – if it is not less than 200 (200 or less) 1) When he is charged with Capital offense because he
- If the law provides a penalty of ―fine or cannot post bail.
imprisonment‖, the Court has choice to impose either 2) Although charged with bailable offense but he does
fine or imprisonment. But if the law uses ―fine and not have enough money, then he will be put up in jail.
imprisonment‖, it has to impose both.
How much will be deducted?
Art 27. DURATION OF PENALTIES (MEMORIZE) - 100% if prisoner agrees in writing to follow the rules
- Reclusion Perpetua – 20 yrs and 1 day to 40 yrs imposed on convicted prisoners in the facility where
- Reclusion Temporal– 12 yrs and 1 day to 20 yrs he is detained.
- Prision Mayor and Temporary Disqualification – 6 yrs - But he did not sign an undertaking that he will follow
and 1 day to 12 yrs the same rules, then he shall be entitled 4/5 of his
preventive suspension which shall be deducted from Example: The pardon granted to
his sentence former president Joseph Estrada.
After the judgment, he appealed
What about if the accused had undergone a period the decision to the SC. After
equivalent to that of the maximum penalty imposable? filing appeal, former president
- He will be subjected to his release although his case Arroyo told Estrada that she is
shall continue to be tried or without prejudice to the willing to grant him pardon. He
trial of his case. accepted the offer of pardon.
- If for instance it is not equivalent to the maximum But considering that pardon
but only to the minimum? cannot be extended unless the
He cannot be released but his bail bond will judgment of the case had
be reduced become final and executory,
- Destierro before Arroyo gave him pardon,
He shall be released after 30days of Estrada withdrew his appeal.
preventive imprisonment The effect was that, the decision
became final and executory.
Art. 330. PERPETUAL/TEMPORARY ABSOLUTE Then Arroyo granted him
DISQUALIFICATION pardon.
- Temporary, meaning during the duration of your The grant of Arroyo of pardon
penalty became a controversy. Why?
- Effects: Because Estrada
1) Deprivation of the public officer and promised before he was
employees which offender may have held given pardon that he will
even if conferred by popular election not run to any public
2) Deprivation of right to vote or to be elected office.
Detention prisoners may vote But Estrada filed a
because they are not yet convicted candidacy as Mayor of
3) Disqualification for offices/public Manila. A case was filed
employment against him.
4) Loss of all rights to retirement pay or other TN: Pardon will not restore the rights to
pension for any office formerly held hold public office unless the same is
All benefits shall be forfeited in expressly stated in the pardon.
favour of the government The accessory penalties is not restored
Except service leave credit unless it is expressly stated in the pardon
In the pardon papers particularly in the
Art. 34. CIVIL INTERDICTION dispositive portion of the paper, it was
- Shall deprive offender: written there that he (Estrada) is hereby
1) Parental authority restored to all his civil and political
2) Guardianship rights. So SC allowed Estrada to run.
3) Marital authority (CASE IN POINT: Risos-Vidal v
4) Manage his property and dispose such COMELEC, GR No. 206666, Jan 21, 2015
- Pardon:
Art. 36 Pardoning power shall not be extended in
- Pardon by the President case of impeachment
1) Shall not restore the right to hold public Can only be exercised after the conviction by
office or the right of suffrage final judgment. And such power cannot be
Except: when any or both such extended to cases of impeachment.
rights is or are expressly restored It will only extinguish the penalty
by the terms of the pardon EXAMPLE: Accused was given pardon and
Pardon the pardon did not expressly state that his
One of the executive civil and political rights are restored.
powers of the president Problem iss, when he was given pardon, he
Only the president can already served out his sentence. SC said that
grant pardon although it is not expressly stated in the
Accused must have been convicted pardon that his rights are restored and
by final judgment considering that he already served his
No pardon if case is still pending sentence, then it is presumed that he is
restored to his civil and political rights. Par. 1. If the principal penalty imposed be prision correccional
(CASE IN POINT: Pelobellovs Palatino, 72 or arresto and fine, he shall remain under confinement until his
Phil 441 fine referred to in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term
of the sentence, and in no case shall it continue for more than
Pardon – Granted by the president extinguishes the
one year, and no fraction or part of a day shall be counted
criminal liability of the accused.
against the prisoner.
o Extinguish the penalty imposed by the court.
Par. 2. When the principal penalty imposed be only a fine, the
Article 37 – Costs shall include fees and indemnities in the
subsidiary imprisonment shall not exceed six months, if the
course of the judicial proceedings, whether they be fixed or
culprit shall have been prosecuted for a grave or less grave
unalterable amounts previously determined by law or
felony, and shall not exceed fifteen days, if for a light felony.
regulations in force, or amounts not subject to schedule.
- 6 months is the longest
- Not attorney‘s fees or litigation expenses.
- Pecuniary liabilities Ex. Supposing the person is fined P1M. P1M is divided by
- Accused may be ordered by the court to pay 400(as the minimum wage). That is 2,500 days. That is 6 years
pecuniary damages. Momentary liabilities of the and 8 months. Under paragraph 2 only 6 months will be
accused such as payment of fine, damages and civil served, the rest is bonus.
liabilities.
- Suppose the accused does not have enough money or The fine may be imposed together with imprisonment if the
property. Article 38 provides for the order of law says ―and‖.
payment.
Par. 3. When the principal imposed is higher than prision
Article 39 – Pecuniary liabilities – Order of Payment – in case correccional, no subsidiary imprisonment shall be imposed
the property of the offender should not be sufficient for the upon the culprit.
payment of all pecuniary liabilities, the same shall be met in
the following order: - If the penalty imposed is prision correccional and
fine, he shall not suffer any subsidiary imprisonment
1. The reparation of the damage caused. for non-payment of the fine.
2. Indemnification of the consequential damages.
3. The fine. Par. 4. If the principal penalty imposed is not to be executed by
4. The cost of the proceedings. confinement in a penal institution, but such penalty is of fixed
duration, the convict, during the period of time established in
Article 39 – Subsidiary Penalty the preceding rules, shall continue to suffer the same
deprivations as those of which the principal penalty consists.
- If the convict has no property with which to meet the
fine imposed in the sentence, he shall be subject to - For destierro, non-payment of fine will not require the
subsidiary imprisonment or subsidiary personal accused to be imprisoned but merely extend the term
liability of his period for destierro.
- Article 39 was amended by RA 10159 - If the penalty is suspension, then the period of
o 1 day = highest minimum wage prevailing at suspension will be extended.
the time of the promulgation in any place of
the Philippines Par. 5. The subsidiary personal liability which the convict
o Highest minimum wage = metro manila may have suffered by reason of his insolvency shall not relieve
- A person may be imprisoned if the convicted person him, from the fine in case his financial circumstances should
is unable to pay what the court ordered on certain improve.
circumstances.
- When a person‘s financial circumstance improved
Ex. Supposing a person is fined with P10,000. Let‘s say 400 (as and he has already served subsidiary imprisonment,
minimum wage) divide the P10,000 by 400. he will still be compelled to pay the fine even if he
served subsidiary imprisonment.
Participation
o same cannot be applied to indivisible
Presence of mitigating and aggravating
o penalty
circumstances o Relate to RA 9344
Those minors who are over 15 but
- It would be an injustice to impose Reclusion
below 18, they could only be held
Temporal on an accessory
liable if they acted with discernment
When we say convict, that means that
Article 47 is obsolete unless there is a re-imposition of the the party acted with discernment
death penalty. 2. When the convict is more than 70 years of age
3. When on appeal or automatic review of the case
June 17, 2016 by the Supreme court, the required majority is
Part 8 not obtained for the imposition of the death
penalty
Art. 47. In what cases the death penalty shall not be imposed; o Under the Constitution, death penalty
Automatic review of death penalty. — The death penalty cannot be imposed without being reviewed
shall be imposed in all cases in which it must be imposed by the SC
under existing laws, except when the guilty person is below o Before there was this so called ―automatic
(18) years of age at the time of the commission of the crime or review‖. Automatic meaning even if the
is more than seventy years of age or when upon appeal or convict does not file an appeal the record of
the case shall automatically be forwarded to
automatic review of the case by the Supreme court, the
the SC for review.
required majority is not obtained for the imposition of the
From the RTC, it jumps to the SC =
death penalty, in which cases the death penalty shall be automatic. Even if no appeal filed,
reclusion perpetua. accused does not question the
decision.
In all cases where the death penalty is imposed by o Under the existing procedure, if death
the trial court, the records shall be forwarded to the Supreme penalty is imposed the case will not anymore
Court for automatic review and judgment by the court en be directly reviewed by the SC but the same
banc, within twenty (20) days but not earlier than fifteen (15) shall be reviewed by the CA. This is the so-
days after promulgation of the judgment or notice of denial called ―intermediate review‖.
of any motion for new trial or reconsideration. The transcript Why?
1. So that the cases would not be
shall also be forwarded within ten (10) days after the filing
congested with the SC.
thereof by the stenographic reporter. (As amended by R.A.
Once the CA finds the accused not
No. 7659) guilty or acquits the accused, then
would not be a case anymore that
- There is no more death penalty but we do not know will reach the SC.
when you take the bar whether death penalty will be If the CA affirms the appeal then
restored because the coming administration is that is the time that the case will
intending to revive death penalty reach the SC.
- Just in case in your time death penalty would be 2. If it would be reasonable to kill
restored
the accused.
- It tells us the instances where death penalty cannot be
imposed
There will now be a double review
1. It cannot be imposed when the accused/convict
of facts.
is below eighteen at the time of the commission
As a rule, the SC court does not
of the crime
review facts or factual issues. It will
o Of course it cannot be imposed because of
only review question of law.
his minority
o He us entitled to one degree lower Death penalty is the only exception.
o If the penalty imposable is death then by It is because of the weight of the
penalty. The SC would have to
reason of his minority you have to lower the
review the evidence or facts.
degree by one degree
o But remember that minority is a privilege (Pp vs. Mateo, GR Nos. 147678-87,
mitigating July 7, 2004)
o Privileged minority will always lower the o SC would double check,
penalty even if the penalty is indivisible. double review the evidence.
Unlike in ordinary mitigating wherein the
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
The accused shall be liable for Accused raped the victim and after raping the victim,
homicide with attempted homicide in order to eliminate all possible witnesses, he killed
and he shall be imposed with the the victim.- Here he committed rape and because he
penalty of reclusion temporal in its
killed the victim, he also committed either homicide
maximum period.
or murder. Therefore the crime here is Rape with
o Considering that the law itself states that the penalty
shall be imposed in the maximum, it cannot anymore homicide.
be lowered by an ordinary mitigating circumstance.
o Whenever a complex crime is committed, there is The term homicide here is used in its generic sense-
only one crime. But what if the penalty of both of the that would include murder, parricide.
offenses is the same.
EX: double homicide – his act produces 2 deaths
There is no such thing as:
o What will be the penalty that will
- Rape with murder
be used? Either because it is equal
and it shall be imposed in its - Rape with parricide.
maximum.
- The crimes committed must be or both be punishable There are two crimes committed- Rape and homicide.
by the RPC. But the law sees them as just one crime. They are
o If one of the crimes committed is punishable considered as one offense, a single indivisible crime.
by special law, there is no complex crime. That‘s what we call special complex crime.
Article 48. Penalty for complex crimes. When a single ct The law likewise imposes a specific penalty. The
constitutes two or more grave or les grave felonies, or when an penalty for this at present is RECLUSION
offense is a necessary means for committing the other, the PERPETUA.
penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period. (As amended by Act No. - Example: ROBBERY WITH HOMICIDE
4000)
Under Art 294 of the RPC, the penalty for Robbery
When should Art. 48 NOT apply: with homicide is RECLUSION PERPETUA.
Special Complex Crime refers to 2 or more crimes committed ARTICLE 48 DOES NOT APPLY TO CONTINUED,
by the accused but these two crimes committed are just CONTINUING OR CONTNUOUS CRIME (delito
considered as components of a single indivisible offense continuado).
with one specific penalty provided by law.
In a continuing offense, the accused does not perform a
single act but a series of acts, and one offense is not a
COMPLEX CRIME SPECIAL COMPLEX
necessary means for committing the other. These acts are
CRIME
under the law are just considered as one crime. A
The penalty depends on the The penalty is expressly Continuing Crime.
graver crime committed provided for by the RPC.
- Example: REBELLION
- Example: RAPE WITH HOMICIDE. You were a rebel in 1969 and until now you are still a
rebel, you must have committed several acts. You
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
must have killed several people. You must have only of Rape or homicide, whichever is proved
robbed things from other people in furtherance of during the trial.
rebellion. You ambushed the military, you committed
robbery and killed several people. You committed - Same rule applies with Complex Crimes. The rule in
murder, etc. You committed several acts. But these continuing offense also applies in Special Laws.
acts you committed are just considered one crime.
One crime of REBELLION. The common crimes CASE: Santiago vs. Garchitorena, 228 SCRA 214
committed by the rebel are absorbed.
Before Sen. Miriam Santiago became a senator, she was
- SC (in one case): the theft of the two game roosters appointed as commissioner of BID (Bureau of Immigration
belonging to two different persons was punished and Deportation). There were 32 foreigners who
with one penalty only, the SC holding that there being overstayed in the Philippines. In order to legalize their
only one criminal purpose in the taking of the two stay here, she required them to pay certain amounts. She
roosters, only one crime was committed. was sued of 32 counts of violation of the Anti graft and
corrupt practices act. So there were 32 cases filed before
- Example: When you commit robbery in a public the Sandiganbayan. Sen. MDS denied having committed
vehicle, say there are around 18 passengers, the crime and moved for the dismissal of those cases. She
supposedly there are 18 cases of robbery. But the argued that granting she is liable, she could only be
accused here is liable only of 1 count of robbery. In charged of 1 violation of the anti graft and corrupt
US, that is what they call the Single Larceny Doctrine practices act. SC sustained her argument and she was
charged with only one count of such violation.
Single Larceny Doctrine- The accused has only one
criminal design and because of that, the law considers *** Judge D: Read this case because here you will learn more
him to have just committed one crime although he about continuing offense.***
performed several acts. He can only be imposed of
one penalty. ARTICLE 48 DOES NOT APPLY WHEN THE LAW
PROVIDES FOR A TWO- TIERED PENALTY.
COMPLEX CRIME CONTINUING CRIME
―Two- tiered penalty‖
NOTE: In Complex Crime under Art. 48, in Special Complex The court stenographer asked for a bribe to change a
Crimes or in Continuing crimes, the accused committed certain part of the testimony of the witness. She
several crimes but in the eyes of the law, he only committed actually changed certain portions of the testimony of
one crime. Considering that he only committed one crime, only the witness. She committed two crimes there- Bribery
one information or one complaint shall be filed against him in and Falsification. There is no complex crime, he
court. And all the crimes that he committed shall be alleged in should suffer the penalty for the two crimes.
the information.
CASE: Ivler vs. San Pedro November 17, 2010
- Example: RAPE WITH HOMICIDE. There shall only (Judge D: This will come out in the 2017 BAR)
be one information, but in that information the
elements of these two crimes shall be ALLEGED. And Q: The accused was driving recklessly at a highspeed.
during the trial, the elements of these crimes shall also While disregarding the traffic rules, he bumped
be PROVED. Otherwise, he cannot be convicted of another car. His reckless act resulted to the death of
the special complex crime of Rape with homicide. But the driver of the car that he bumped. Aside from that,
the car that he bumped was totally damaged.
Fortunately, the passenger of the car that he bumped Now under this article, the penalty for the lesser offense shall
suffered only slight physical injuries. If you are the be the one imposed upon the accused because the accused
prosecutor, what crimes are you going to file against the intended to commit only 1 crime.
accused?
For example the accused intended to kill mr. X, but when he
The prosecutor in this case filed two information: actually committed the crime, it turn out that what he killed
1. Reckless imprudence The accused when was actually his father. So he is liable for parricide, however
resulting in slight arraigned, pleaded the lesser penalty of homicide shall be imposed since it is what
physical injuries guilty to this case. he really intended to commit.
Penalty is much lower
Article 51-57 (already discussed)
here (public censure)
because it was
Article 58. Accessories falling within paragraph 3 of Article 19.
committed by culpa.
Now under par.3 of art. 19, a public officer shall be held liable
2. Reckless imprudence He pleaded NOT guilty
as an accessory, with abuse of his function, he concealed and
resulting in homicide and filed a motion to harbor the principal, under this article, the principal shall
with damage to quash on the ground of
property. suffer absolute permanent/temporary disqualification as the
double jeopardy.
case therein if the principal is guilty of a less grave felony only.
lower in degree is reclusion temporal(from perpetua). Here Article 63. Rules for the application of indivisible penalties. -
there are 2 indivisible penalties. In all cases in which the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any
There are cases/crimes that the penalty imposed is only 1 mitigating or aggravating circumstances that may have
attended the commission of the deed.
divisible penalty. Example of this is homicide, so what is 1
In all cases in which the law prescribes a penalty composed
degree lower if this? Prision Mayor. of two indivisible penalties, the following rules shall be
observed in the application thereof:
What if there are 2 divisible penalties imposed? For example 1. When in the commission of the deed there is present only
prision mayor to reclusion temporal, what is 1 degree lower of one aggravating circumstance, the greater penalty shall be
this? The penalty next lower would be prision correctional. applied.
2. When there are neither mitigating nor aggravating
Now another example, the penalty imposed is prision circumstances and there is no aggravating circumstance, the
lesser penalty shall be applied.
correctional in its minimum and medium periods. Now the 1
3. When the commission of the act is attended by some
degree lower of this is aresto mayor in its medium and mitigating circumstances and there is no aggravating
maximum. circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances
Article 62. Effects of attendance of mitigating/aggravating attended the commission of the act, the court shall
circumstances and of habitual delinquency reasonably allow them to offset one another in consideration
of their number and importance, for the purpose of applying
(already discussed extensively in the previous discussions) the penalty in accordance with the preceding rules, according
to the result of such compensation.
Presence of aggravating circumstance as a rule will increase
This is about the presence of aggravating and mitigating
the penalty in its maximum period.
circumstances as regards indivisible penalties.
Crime is committed by the offender who abused his public
What are the Indivisible Penalties?
position, it says that the penalty shall be imposed in the - Death
maximum regardless of mitigating circumstances. - Reclusion Perpetua
Now the penalty shall not be increased in the aggravating is When the penalty imposable is single and indivisible, example
inherent in the commission of the crime. For example in the Reclusion Perpetua, the presence of mitigating and
crime of robbery, evident premeditation is always present, aggravating circumstances is IMMATERIAL. It does not
how can you commit robbery without planning? It cannot be increase to the maximum since it is indivisible. If there is an
ordinary mitigating circumstance, it also does not decrease
incidental. Now the aggravating circumstance of evident
either.
premeditation shall not increase the penalty since it is inherent
in the crime of robbery. Example:
Rape – penalty is reclusion perpetua. If the accused voluntarily
Now there are also instances that an aggravating circumstance surrenders and also pleads guilty. Now there are 2 mitigating
will only increase the penalty imposable on an accused but not circumstances. Will this lower the penalty?
on the other co-accused. For example, Mr. H, husband, - No, since the penalty is single indivisible.
conspired with mr. X in killing W, the wife of H, now the
relationship between H and W will increase the penalty with But if one who rapes is a minor, then we know that that is a
privileged mitigating circumstance. Now, this lowers the
regard to mr. H but will not apply to mr. S.
penalty by one degree.
Another, there are also instances where the mitigating If the penalty imposable is 2 indivisible penalties: Accused
circumstance is applicable only to an accused who has committed murder. Before, the penalty for murder was
knowledge on such aggravating circumstance, but cannot be Reclusion Perpetua to Death.
applied to a co-accused who has no knowledge to an o If there is an aggravating circumstance, the penalty
application or use of an aggravating circumstance in the imposed is the higher one which is Death.
commission of the crime. For example, Mr. X paid Mr. Y in o If 0 aggravating circumstance and 1 mitigating, the
lower one is imposed, Reclusion Perpetua.
order to kill Mr. A, Mr. Y in killing Mr. A, used treachery, now
o If 2 aggravating, 1 mitigating – there‘s an offset and 1
the aggravating circumstance will only apply to Mr. Y since aggravating circ is left, so Death.
Mr. X does not know of such treachery.
o If 0 aggravating, 0 mitigating – the lower penalty is If 0 aggravating, 2 mitigating – the penalty is reduced to 1
imposed, so Reclusion Perpetua DEGREE (not period) lower – so Prision Mayor
You always look at the information because for Aggravating If 1 aggravating, 4 mitigating – offset, 3 mitigating left –
circumstances to be considered, they must be ALLEGED IN Reclusion Temporal MINIMUM. Why? Since for 2 or more
THE INFORMATION & PROVED. mitigating circumstances, to lower the penalty by 1 DEGREE, it
is necessary that there should be no aggravating circumstance.
Article 64. Rules for the application of penalties which
contain three periods. - In cases in which the penalties In lowering the penalty to be imposed by 1 period is
prescribed by law contain three periods, whether it be a applicable only to the Revised Penal Code. This is not
single divisible penalty or composed of three different applicable to offenses in Special Laws, UNLESS that
penalties, each one of which forms a period in accordance special law is using the terms of penalties under the
with the provisions of Articles 76 and 77, the court shall RPC. So if the crime is penalized by a special law, no
observe for the application of the penalty the following matter how many mitigating circumstances there are,
rules, according to whether there are or are not mitigating or they will not be appreciated.
aggravating circumstances: Example:
1. When there are neither aggravating nor mitigating Violation of RA 9165 Section 11 – Possession of Shabu:
circumstances, they shall impose the penalty prescribed by 1 gram of Shabu – penalty is 12 years and 1 day to 20
law in its medium period. years. This is the same period as Reclusion Temporal
2. When only a mitigating circumstances is present in the (RT), but this is not RT.
commission of the act, they shall impose the penalty in its
If the accused would plead guilty (mitigating), the
minimum period.
penalty will not be lowered. It will always be between
3. When an aggravating circumstance is present in the
12 years and 1 day to 20 years.
commission of the act, they shall impose the penalty in its
maximum period.
This article will not also apply in crimes committed
4. When both mitigating and aggravating circumstances are
thru NEGLIGENCE like Reckless Imprudence
present, the court shall reasonably offset those of one class
against the other according to their relative weight. resulting to Homicide.
5. When there are two or more mitigating circumstances and
no aggravating circumstances are present, the court shall This will not apply when the penalty imposable is
impose the penalty next lower to that prescribed by law, in single and indivisible, but applies if there are 2
the period that it may deem applicable, according to the indivisible penalties like the example above in Article
number and nature of such circumstances. 63.
6. Whatever may be the number and nature of the
aggravating circumstances, the courts shall not impose a Article 65. Rule in cases in which the penalty is not composed
greater penalty than that prescribed by law, in its maximum of three periods. - In cases in which the penalty prescribed by
period. law is not composed of three periods, the courts shall apply
7. Within the limits of each period, the court shall determine the rules contained in the foregoing articles, dividing into
the extent of the penalty according to the number and nature three equal portions of time included in the penalty
of the aggravating and mitigating circumstances and the prescribed, and forming one period of each of the three
greater and lesser extent of the evil produced by the crime. portions.
Now here, we deal with DIVISIBLE PENALTIES. Those with Article 66. Imposition of fines. - In imposing fines the courts
periods (minimum, medium, maximum). may fix any amount within the limits established by law; in
fixing the amount in each case attention shall be given, not
Example: only to the mitigating and aggravating circumstances, but
X committed Homicide. Penalty is Reclusion Temporal more particularly to the wealth or means of the culprit.
Reclusion Temporal Here the court has to consider the means or the wealth of the
- maximum accused. Remember, when the law says penalty of
- medium ―imprisonment or fine,‖ the court has the option to impose
- minimum either. But if the law says ―and‖, the court should impose both.
If 0 aggravating, 1 mitigating – minimum period is imposed Article 67. Penalty to be imposed when not all the requisites of
exemption of the fourth circumstance of Article 12 are
If 1 aggravating, 0 mitigating – maximum
present. - When all the conditions required in circumstances
If 2 aggravating, 1 mitigating – offset, 1 aggravating left – so
Number 4 of Article 12 of this Code to exempt from criminal
maximum
liability are not present, the penalty of arresto mayor in its
If 1 aggravating, 1 mitigating – offset – medium
maximum period to prisioncorreccional in its minimum
If 0 aggravating, 0 mitigating – medium
period shall be imposed upon the culprit if he shall have
been guilty of a grave felony, and arresto mayor in its In the imposition of the penalties, the order of their
minimum and medium periods, if of a less grave felony. respective severity shall be followed so that they may be
executed successively or as nearly as may be possible, should
This is the penalty for a crime when the crime is committed by a pardon have been granted as to the penalty or penalties
mere accident but not all elements thereof are present. The first imposed, or should they have been served out.
penalty here is lowered. The accused here is performing a For the purpose of applying the provisions of the next
lawful act with negligence. preceding paragraph the respective severity of the penalties
shall be determined in accordance with the following scale:
Article 68. Penalty to be imposed upon a person under eighteen 1. Death,
years of age. - When the offender is a minor under eighteen 2. Reclusion perpetua,
years and his case is one coming under the provisions of the 3. Reclusion temporal,
paragraphs next to the last of Article 80 of this Code, the 4. Prision mayor,
following rules shall be observed: 5. Prisioncorreccional,
1. Upon a person under fifteen but over nine years of age, 6. Arresto mayor,
who is not exempted from liability by reason of the court 7. Arrestomenor,
having declared that he acted with discernment, a 8. Destierro,
discretionary penalty shall be imposed, but always lower by 9. Perpetual absolute disqualification,
two degrees at least than that prescribed by law for the crime 10 Temporal absolute disqualification.
which he committed. 11. Suspension from public office, the right to vote and be
2. Upon a person over fifteen and under eighteen years of voted for, the right to follow a profession or calling, and
age the penalty next lower than that prescribed by law shall 12. Public censure.
be imposed, but always in the proper period. Notwithstanding the provisions of the rule next preceding,
the maximum duration of the convict's sentence shall not be
This is the privileged mitigating circumstance of MINORITY. more than three-fold the length of time corresponding to the
Paragraph 1 has been repealed by RA 9344, but paragraph 2 is most severe of the penalties imposed upon him. No other
still followed. penalty to which he may be liable shall be inflicted after the
sum total of those imposed equals the same maximum
We already know this. If minor is over 15 and under 18, and period.
acted with DISCERNMENT – impose the penalty next lower in Such maximum period shall in no case exceed forty years.
degree. In applying the provisions of this rule the duration of
perpetual penalties (penaperpetua) shall be computed at
Article 69. Penalty to be imposed when the crime committed is thirty years. (As amended).
not wholly excusable. - A penalty lower by one or two
degrees than that prescribed by law shall be imposed if the This is a situation where the accused committed two or more
deed is not wholly excusable by reason of the lack of some of crimes and the court imposes several sentences.
the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Article 11 Example:
and 12, provided that the majority of such conditions be X is accused with 2 cases of Homicide, and is convicted. How
present. The courts shall impose the penalty in the period should he serve his sentences?
which may be deemed proper, in view of the number and Article 70 says:
nature of the conditions of exemption present or lacking. First, serve the sentences simultaneously if
the nature of the sentences allow it.
This is the mitigating circumstance of Incomplete Justifying or - an example is when in 1 crime he is to serve
Incomplete Exempting. a sentence of imprisonment, and in the other
When majority of the requisites are present, the court has the crime he is to pay a fine. Here, the accused
option to lower the penalty by 1 or 2 degrees. can serve both by serving in jail and paying
the fine.
Example: - another, both cases require him to pay a
The accused is charged with homicide and there is incomplete fine.
self defense. What‘s the penalty? Second, successive service of sentence by
- One or two degrees lower. Within the range of Prision Mayor serving the most serious or severe first.
or within the range of PrisionCorreccional. It is upon the - how do you determine the most severe or
discretion of the court. most serious crime? Article 70 tells us
arrangement of penalties according to
Article 70. Successive service of sentence. - When the culprit severity.
has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit **Compare paragraphs 7 and 8 of this Article
otherwise, the following rules shall be observed: with paragraphs 7 and 8 of Article 71.
Is he going to stay in jail for this long? Article 73. Presumption in regard to the imposition of
- No, Under Article 70, this is what we call‖Three Fold Rule.‖ accessory penalties. - Whenever the courts shall impose a
penalty which, by provision of law, carries with it other
Here, the convict shall only stay in jail 3x the most severe
penalties, according to the provisions of Articles 40, 41, 42, 43
penalty. The most severe penalty is 17 yrs 4 mos and 1 day (x3)
and 44 of this Code, it must be understood that the accessory
= 52 years and 3 days.
penalties are also imposed upon the convict.
Is he going to stay that long still?
Article 74. Penalty higher than reclusion perpetua in certain
- No, in no case shall he stay in jail for more than 40 years. So
cases. - In cases in which the law prescribes a penalty higher
from 58 years 8 months and 2 days, the convict is to serve only
than another given penalty, without specially designating
40 years. the name of the former, if such higher penalty should be that
** But later on you will know that he will not actually stay this of death, the same penalty and the accessory penalties of
long because aside from enjoying Parole, the convict who will Article 40, shall be considered as the next higher penalty.
stay in jail in good behavior is entitled to service credits which
we call Good Conduct Time Allowance (GCTA). There are crimes that when you compute for the penalty – it
will be Death.
Remember that under the Three Fold Rule, the convict has to
serve at least 4 sentences. If the sum of all penalties does not Example, Qualified Theft. The penalty provided under the law
exceed the most severe multiplied by 3, the Three Fold Rule here is ―2 degrees higher than that of ordinary theft.‖ So
does not apply. there‘s no specific penalty. We know that the penalty for
Ordinary Theft is Reclusion temporal. So for qualified theft,
Article 71. Graduated scales. - In the case in which the law since it says two degrees higher, what‘s the penalty when we
prescribed a penalty lower or higher by one or more degrees compute?
than another given penalty, the rules prescribed in Article 61 - Death! But this can‘t be imposed because Death can only be
shall be observed in graduating such penalty.
imposed when the law SPECIFICALLY PROVIDES for it. But
The lower or higher penalty shall be taken from the
with regards to the ACCESSORY PENALTY for death, the
graduated scale in which is comprised the given penalty.
accused must suffer that.
The courts, in applying such lower or higher penalty, shall
observe the following graduated scales:
ART. 75: INCREASING OR DECREASING THE PENALTY
SCALE NO. 1
1. Death, OF FINE BY ONE OR MORE DEGREES
2. Reclusion perpetua,
3. Reclusion temporal, Whenever it may be necessary to increase or reduce the
4. Prision mayor, penalty of fine by one or more degrees, it shall be
5. Prisioncorreccional, increased or reduced, respectively, for each degree, by ¼
6. Arresto mayor, of the maximum amount.
7. Destierro,
8. Arrestomenor,
It will always be ¼ of the maximum amount. So, one
9. Public censure,
10. Fine. degree lower, you just deduct ¼ of the maximum.
Divisible Penalties are deemed divided into 3 equal periods. INDETERMINATE SENTENCE LAW (ISL) Act No. 4103
TABLE SHOWING THE DURATION OF DIVISIBLE This law provides that the sentence to be imposed by
PENALTIES AND THE TIME INCLUDED IN EACH OF the court must have a Minimum and Maximum period.
THEIR PERIODS Do not confuse this one with the periods provided in
Divisible Penalties (Art. 76). This one is different. Take note of
Penalties Penalty Minimum Medium Maximum that.
in its period period period There are two (2) formulas in determining the
entirety indeterminate sentence; one formula for crimes punishable
under the RPC and another formula for crimes punishable by
special laws.
Reclusion From 12 From 12 From 14 From 17 Example: Homicide.
temporal years years and years, 8 years, 4
and 1 1 day to months months What is the penalty for Homicide? Reclusion Temporal.
day to 14 years and 1 and 1 day
20 years. and 8 day to to 20
MINIMUM
months. 17 years years.
and 4 12 years and 1 day to 14
months. years and 8 months
MEDIUM
Reclusion Temporal
Prision mayor, From 6 From 6 From 8 From 10 14 years, 8 months and 1
12 years and 1 day to 20
absolute years years and years years and day to 17 years and 4
years
disqualification and 1 1 day to 8 and 1 1 day to months
and special day to years. day to 12 years. MAXIMUM
temporary 12 years. 10 years. 17 years, 4 months and 1
disqualification
day to 20 years
MINIMUM
Prision From 6 From 6 From 2 From 4
6 years and 1 day to 8
correccional, months months years, 4 years, 2
suspension and and 1 and 1 day months months years.
destierro day to 6 to 2 years and 1 and 1 day Prision Mayor MEDIUM
years. and 4 day to 4 to 6 years. 6 years and 1 day to 12 8 years and 1 day to 10
months. years years. years.
and 2 MAXIMUM
months.
10 years and 1 day to 12
years.
Arresto mayor From 1 From 1 to From 2 From 4 MINIMUM
month 2 months. months months
6 months and 1 day to 2
and 1 and 1 and 1 day
day to day to 4 to 6 years and 4 months
months. months. months. Prision correccional MEDIUM
6 months and 1 day to 6 2 years, 4 months and 1 day
Arresto menor From 1 From 1 to From 11 From 21 years. to 4 years and 2 months.
to 30 10 days. to 20 to 30 days. MAXIMUM
days. days. 4 years, 2 months and 1 day
to 6 years.
ART. 77: COMPLEX PENALTY
MINIMUM
It is a penalty prescribed by law composed of 3 distinct 1 to 2 months
penalties, each forming a period – Minimum, Medium, MEDIUM
Arresto mayor
and Maximum. 2 months and 1 day to 4
Example: Reclusion Temporal to Death 1 month and 1 day to 6
months.
Maximum – Death months.
MAXIMUM
Minimum – Reclusion Perpetua
4 months and 1 day to 6
Minimum – Reclusion Temporal
months
A. UNDER THE RPC Your decision then is wrong because the crime of
Homicide is punishable under the RPC.
We first get the Minimum.
Example #2: (1) Mitigating. No Aggravating.
According to the ISL, when the crime is punishable by the
RPC, in order to get the Minimum of the sentence, the Where do you get your Maximum? From Reclusion Temporal
penalty prescribed by law shall be lowered by one degree. – MINIMUM. Minimum because there is a mitigating
circumstance.
What is the penalty prescribed by law for Homicide? Reclusion
Temporal. What is one degree lower? Prision Mayor. What is What is the duration of Reclusion Temporal – Minimum? 12
the range or duration of Prision Mayor? Six years and one years and 1 day to 14 years and 8 months.
day to 12 years. That is the range.
Can the court give a Maximum sentence of 12 years and 1 day
The court may impose the Minimum sentence within the penalty? YES. 13 years? YES. 14 years? YES. For as long as it
range of six (6) years and one day to 12 years. is within the range. How about 15 years? NO. Not within
the range.
So, if the accused is convicted of Homicide, can the court
give a Minimum sentence of six (6) years and one day? YES. 8 Note: The imposition of penalties is within the sound
years? YES. 10 years? YES, because it is within the range discretion of the court. You cannot question the
and for as long as it is within the range. How about 6 years? imposition.
NO. Not within the range. The Minimum sentence that the
court can give in this case is six (6) years and one day. Example #3: No Mitigating. (1) Aggravating.
Now then, we get the Maximum. Where do you get your Maximum? From Reclusion Temporal
– MAXIMUM. Maximum because there is an aggravating
In order to get the Maximum of the sentence, we are now circumstance.
going to consider the Mitigating and Aggravating
circumstances. What is the duration of Reclusion Temporal – Maximum? 17
years, 4 months and 1 day to 20 years.
Example #1: No Mitigating. No Aggravating.
Can the court give a Maximum sentence of 18 years? YES. 19
Where do you get your Maximum? From Reclusion Temporal years? YES. 20 years? YES. For as long as it is within the
– MEDIUM. Why Medium? Because there is no Mitigating range. How about 12 years? NO. Not within the range.
or Aggravating circumstance that may be applied.
Example #4: Privileged Mitigating. No Aggravating.
What is the duration of Reclusion Temporal – Medium? 14
years, 8 months and 1 day to 17 years and 4 months. If the accused is a Minor, that is Privileged Mitigating, you
lower the penalty by one degree. That is, Prision Mayor
Can the court give a Maximum sentence of 14 years? YES. 16 (one degree lower from Reclusion Temporal).
years? YES. 17 years? YES. For as long as it is within the
range. To determine the Minimum of the sentence, you lower it
further by one degree. That is, Prision Correctional.
If the judge, after taking into consideration the Minimum
and Maximum of the ISL, has decided to sentence the What is the range or duration of Prision Correctional? Six (6)
accused of six (6) years and one day to 15 years, he may, in months and one day to six (6) years. Therefore, your
his decision, write that, ―The court finds the accused guilty of Minimum now is six (6) months and one day to six (6)
Homicide and hereby sentences him to suffer the penalty of six years.
(6) years and one day of Prision Mayor to 15 years and one day
Can the court give a Minimum sentence of six (6) years and one
of Reclusion Temporal.‖
day? YES. It is within the range.
Why not simply write, ―six (6) years and one day to 15
Maximum
years‖? Because… if walay apelyido, that will give the
impression that the crime is punished under a special law.
Where do you get your Maximum? Prision Mayor – already served 6 years already, he will have to serve the
MEDIUM. Why Medium? Because there is no more reaming 9 years of his sentence.
Mitigating or Aggravating circumstance that may be
applied. It is called ―indeterminate‖ because you are not sure if you
are going to finish serving your sentence or not.
Example #5: Privileged Mitigating; (1) Ordinary Mitigating.
No Aggravating. B. UNDER SPECIAL LAWS
The Minimum sentence remains the same. The minimum penalty imposable under Sec. 11 (Possession of
Dangerous Drugs) under RA 9165 or The Comprehensive
Where do you get your Maximum? Prision Mayor – Dangerous Drugs Act is 12 years and 1 day to 20 years.
MINIMUM. Minimum because there is a mitigating
circumstance. To determine the Minimum in ISL
Example #6: Privileged Mitigating; Two (2) or more Ordinary In crimes punishable by special law, the minimum of the
Mitigating; No Aggravating. sentence should not be lower than the penalty imposable.
Therefore, should not be lower than 12 years and one day.
To determine the Minimum of the sentence, you lower
Example #4 further by one degree. That is, Arresto Mayor. To determine the Maximum in ISL
What is the range or duration of Arresto Mayor? One (1) The maximum should not be higher than the maximum
month and one day to six (6) months. penalty imposable. Therefore, should not be higher than
20 years.
Can the court give a Minimum sentence of two (2) months?
YES. It is within the range. What is the opposite of Indeterminate Sentence?
Where do you get your Maximum? Prision Correctional – Instances when the Indeterminate Sentence Law will not apply
MEDIUM. Why Medium? Because there is no more
Mitigating or Aggravating circumstance that may be 1. When the penalty imposed by the court is not higher
applied. than one year.
– If exactly one year, it could bestraight
penalty.
2. Will not benefit a habitual delinquent
WHAT IS THE PURPOSE OF THE ISL? 3. Offenses such as Rebellion, Treason, or Proposal to
Commit Treason
The purpose is to save the valuable human resources. The
accused will be more productive when he is outside. And, June 19, 2016
the government can save a lot. Part 9
Under the ISL, once the accused was able to serve the INDETERMINATE SENTENCE LAW
Minimum of his sentence, he can avail of parole. Meaning, - Mandates that the Court in imposing a sentence upon
the accused now will be released. And if stay in good the convict should provide a minimum period or
duration of the sentence as well as the maximum
behavior while outside the jail, he will not return anymore
- Purpose of providing minimum and maximum:
to serve the sentence. The remaining period of the Main purpose is for the convict to avail of
sentence shall be deemed served. Parole after he has served the minimum
duration of his sentence
But if he will commit any infraction while outside the jail,
he will return to jail to finish his sentence. The period Parole
spent outside jail will not be counted. He has to finish the - Suspension of sentence after serving the minimum
remaining period of his sentence. So for example, the period of the indeterminate sentence
- Convict will be released conditionally. The condition
accused was sentenced to 15 years in prison and he has
is that he should not violate any law while he is
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outside jail until the time the maximum period of his - Mere privilege and not a right
sentence is over or the end of the maximum period
- When convict violates the terms, he may be required When can the accused file an application for probation?
to serve the remaining portion of his sentence - It must be filed within the period to perfect an appeal
- Rationale: to save the valuable human resources or to file an appeal in the same trial court that
convicted him
Disqualification of Parole - When convict has perfected an appeal, an application
1) Accused is sentenced to life imprisonment, death, for probation cannot be granted
reclusion perpetua - Upon the filing of application for probation, he cannot
CASE IN POINT: People vs Rocha: penalty anymore file an appeal because the decision will
of reclusion perpetua is considered automatically become final and executory. But the
synonymous with life imprisonment for the service of sentence shall be suspended.
purpose of the indeterminate sentence law - Approval for probation is not automatic
only (the application of the law) Who will conduct investigation?
2) Those convicted of treason, rebellion, espionage, The court will have to issue an
piracy, repeat offenders (habitual delinquent) order directing the Parole and
Recidivist can avail of parole Probation Office to conduct an
3) Those who shall have escaped or evaded sentence investigation – post-sentence
4) Those whose maximum term of imprisonment does investigation – and submit such
not exceed 1 year report to the court to determine
If exactly 1 year or less, this will not apply. whether the accused is qualified to
The court will provide for straight penalty, avail of probation. The
no minimum and no maximum investigation must be done within
Rule on imposition of minimum and 15 days.
maximum penalty:
1st Rule: Offenses punishable by Qualifications (ALL MUST CONCUR)
RPC 1) The sentence imposed should not be over 6 years
2nd Rule: Offenses punishable by The maximum period is 6 years or less
SPL 2) The crime charged should not be against crime of
Under special laws which national security/public order
uses the penalty imposed Example: Accused pleaded guilty to an
under the RPC, the rule to offense of direct assault. He cannot apply for
be followed in probation because it is a crime against public
determining the minimum order.
and maximum of the Remedy:
indeterminate sentence is File a Motion to Withdraw his
the rule that is used for Improvident Plea of Guilty because
those crimes defined he did not intelligently plead guilty.
under the RPC Then plead not guilty.
If 1 SPL uses terms of During pre-trial, plea bargain for
penalties from RPC, the another offense. Plea
formula that will be used bargainingrequires the consent of
will be that also of the RPC the police officer.
Plead guilty to slight physical
Probation injuries. It is now probationable
- Convict applies to Board of Pardon and Parole because it is a crime against person.
- The Parole and Probation Office monitors the accused Then apply for probation
while outside jail. Sometimes it conducts surprise 3) Must not have been previously convicted by final
drug testing. judgment of an offense punished by imprisonment of
- A disposition under which an accused is released more than 6 months or a fine more than P1,000
subject to conditions imposed by the court and under
a. Amended by RA 10707
the supervision of a probation officer
- Probation is much better than Parole because in 4) Not availed of previous probation
parole you have to serve the minimum of the sentence a. Probation cannot be availed more than once
but in probation, the convict may not be able to serve 5) Must not have been serving sentence at the time of
even a day of his sentence. He is already convicted yet application.
he cannot be able to stay in jail even for a minute.
All the qualifications must be alleged in the application. The conditions imposed by the court:
Conditions that make a person productive:
Can a recidivist/repeat offender apply for probation?
1. Community service
- Yes, provided that the penalty imposed on him in the 2. Plant trees and care for them
previous crime committed should not have been more 3. Not associate himself with persons with
than 6 months. 6 months or less or P1,000 fine or less. questionable character
4. Engage in gainful employment
Upon filing of the provision, the court will order the parole 5. Allow the probation office to visit
and probation office to conduct a post sentence investigation and a. All probationers have a supervising
to submit the report within 60 days. probation officer to follow him up
6. Undergo seminars and recollections
- If the recommendation is favourable then the court
7. Surprise drug tests
will approve the application for probation.
8. Not commit any infraction
- The application is not automatic
The most important condition is that the probationer must
If the convicted person applied for probation, the judgment
report once a month to the supervising probation officer.
will become final. The accused must not withdraw his bail, so
that he will not be imprisoned during the application for - At least once a month
probation. If the probation will be approved, the bail will be - Until the end of the probation
returned. If he did not post bail then he may be release by way
of ―release on recognizance‖ Failure to fulfill the conditions will warrant the revocation of
his probation.
- Promise by a responsible person that he would
produce the accused in court whenever his presence - He will be arrested and will now serve his sentence
is required. - Although minor violations may only give penalties to
- Respected member of the community, e.g. Barangay extend his term of probation.
captain
- The presence of the accused is needed during the The effects of probation:
application for probation.
1. Service oh his sentence is suspended (including the
The period of probation is different from the period of the accessory penalties)
sentence a. He can vote even in conviction because the
accessory penalty is suspended
- The period of probation may be longer than the b. If the period of probation is terminated
sentence without violation of any condition, all the
- If the court penalized the accused for 1 year of rights that are suspended are restored to the
imprisonment, his probation may be for 2 years. accused.
- But the probation must not exceed 6 years
Probation is not automatically terminated. The probation
If the penalty imposed is a fine officer must submit to the court that indeed the probationer
has complied with his probation and the conditions. The court
- Probation may still be applied if he is subject to will issue an order formally terminating the probation. (Bala
subsidiary imprisonment vs. Martinez 181 SCRA 459)
- The period of probation may not be more than twice
the number of days of subsidiary imprisonment. - There was a case. When his probation was done, he
- The decision must have the stipulation for subsidiary left the country. (Probationers cannot change their
imprisonment. address without permission from the court.)
- Travel is possible but there must be permission from
the court.
- His probation was revoked even if the period was - The SC said he is qualified to avail of probation.
complied. When the probation came back, there was - Multiple prison terms imposed on the accused found
already a warrant of arrest. guilty of several offenses in one decision should not
be added up. The sum total is not determinative of his
There was a case. The probationer was given a condition that eligibility or disqualification to avail of probation.
she will refrain from teaching. The accused questioned the - The law uses the word ―maximum‖ and not ―total‖.
condition stating that she does not know any other profession - The maximum charged is only 1 year, therefore he is
other than teaching. still qualified for probation
- Even if there are 100 cases and non go beyond 6 years,
- The liberality of probation should not be used as a
he is eligible for probation.
tool by the trial courts to stipulate unrealistic terms.
(mu samot nuun ug ka problemado) Earlier, we knew that a person who files an appeal cannot avail
of probation. If the court sentences you to suffer imprisonment
An accused was charged of arbitrary detention. He was found
of 6 years and yet you did not avail of probation because you
guilty and sentenced to suffer 4 months and 1 day to 2 days
filed an appeal. In the event that the decision of the court is
and 4 months. He applied for probation. After the termination
affirmed by the appellate court (RTC). You cannot avail of
of the probation, he ran for barangay captain. There is a
probation.
provision under the local government code, sec. 40 par. a., ―the
following persons are disqualified from running from any Case: The accused was charged with frustrated homicide with
elective local position. 1. a. those sentenced by final judgment the RTC. The accused denied having committed the crime. He
for an offense involving moral turpitude or for an offence reasoned out that even if it is true that I am guilty, that I
punishable for 1 year or more imprisonment within 2 years inflicted injury upon the victim, I could not be convicted of
after serving sentence.‖ The opposing candidate stated that 2 frustrated homicide because there is no proof of intent to kill.
years have not yet elapsed from the service of sentence. He But the problem is the RTC did not believe him and convicted
was filed with a disqualification case. him as charged. And because the crime charged is frustrated
homicide, the sentence imposed on him was over 6 years. So
- SC said that the person was qualified to run
he cannot avail of probation. He now appealed the decision to
- During the period of probation, while the accused is
the CA. It was affirmed. When it reached the SC SC said there
under probation, the probationer is not disqualified
is no intent to kill and he is only liable for serious physical
from running for a public office because the accessory
injuries. SC imposes a penalty of not more than 6 years.
penalty of suspension from public office is put on
hold for the duration of the probation. Q: Can he avail of probation?
- Those who have not served their sentence by reason
of the grant of probation, once the person fully TN that the rule is: if the accused has applied or filed an appeal
complied with his probation; he no longer has to he cannot avail of probation.
serve his sentence. He should not be likewise
disqualified from running in a local elective office But recently the SC reversed the jurisprudence before that once
because the 2 year period of illegibility under section a person files an appeal, one cannot file a probation.
40 par. a. of the LGC does not even begin to run.
Now, one can file for probation for as long as if the sentence
There is no reckoning date for the 2 year period
imposed by the RTC is not probationable.
because he was not able to serve his sentence. (Morina
vs. COMELEC Aug. 10, 2006) If the trial court imposes a penalty which is not probationable,
but on appeal the appellate court changes the penalty imposed
The case is charged with different cases. 10 counts of BP 22
to a probationable one, the accused can still avail of probation
(bouncing checks) every bouncing check counts as 1 case. 10
and the application for probation shall be filed within 15 days
counts mean 10 cases. The court sentenced him each case for 1
from the receipt of the copy of the decision and before the
year. Service of sentence should be successive for he cannot
decision becomes final.
serve it simultaneously. The court rendered the judgment of
the 10 cases in one decision. When adding up all the penalties, Where should the application be filed?
it would reach him 10 years. - Before the trial court.
CASE: PP vsColinares Dec. 13, 2007
This decision of the SC has not been embodied in the Probation incidents than those expressly authorized thereby.
Law, RA 10707.
In addition to the provisions of the law, the special regulations
―When a judgment of conviction imposing a non-probationable prescribed for the government of the institutions in which the
penalty is appealed or reviewed and such judgment is modified penalties are to be suffered shall be observed with regard to
through the imposition of a probationable penalty, the accused shall the character of the work to be performed, the time of its
be allowed to apply for probation based on the modified decision performance, and other incidents connected therewith, the
before such decision becomes final. The application for probation relations of the convicts among themselves and other persons,
based on the modified decision shall be filed in the trial court where the relief which they may receive, and their diet.
the judgment of conviction imposing a non-probationable penalty
was rendered or in the trial court where such case has been re- The regulations shall make provision for the separation of the
raffled.‖ sexes in different institutions, or at least into different
departments and also for the correction and reform of the
*** secure a copy of RA 10707 convicts.
A penalty shall not be executed in any other form than that If at any time the convict shall recover his reason, his sentence
prescribed by law, nor with any other circumstances or shall be executed, unless the penalty shall have prescribed in
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accordance with the provisions of this Code. extended or shortened by the court on the recommendation of
the Director of Public Welfare or his authorized representative
The respective provisions of this section shall also be observed or agents, or the superintendent of public schools or his
if the insanity or imbecility occurs while the convict is serving representatives, according as to whether the conduct of such
his sentence. minor has been good or not and whether he has complied with
the conditions imposed upon him, or not. The provisions of the
- when the accused goes crazy, what happens?
first paragraph of this article shall not, however, be affected by
o When it is found that the accused is insane at
the time of the commission of the crime: he is those contained herein.
exempt from any criminal liability
o When the accused at the time of the If the minor has been committed to the custody or care of any
commission of the crime is not yet insane but of the institutions mentioned in the first paragraph of this
while the case is pending he became insane: article, with the approval of the Director of Public Welfare and
the proceedings will be suspended subject to such conditions as this official in accordance with
o When the accused during trial he is sane but law may deem proper to impose, such minor may be allowed
when he learned that he is convicted and
to stay elsewhere under the care of a responsible person.
now he is confined in jail, he became insane:
the service of his sentence will be suspended
If the minor has behaved properly and has complied with the
and he will now be placed at the mental
hospital conditions imposed upon him during his confinement, in
accordance with the provisions of this article, he shall be
Article 80.Suspension of sentence of minor delinquents. - returned to the court in order that the same may order his final
Whenever a minor of either sex, under sixteen years of age at release.
the date of the commission of a grave or less grave felony, is
accused thereof, the court, after hearing the evidence in the In case the minor fails to behave properly or to comply with
proper proceedings, instead of pronouncing judgment of the regulations of the institution to which he has been
conviction, shall suspend all further proceedings and shall committed or with the conditions imposed upon him when he
commit such minor to the custody or care of a public or was committed to the care of a responsible person, or in case
private, benevolent or charitable institution, established under he should be found incorrigible or his continued stay in such
the law of the care, correction or education of orphaned, institution should be inadvisable, he shall be returned to the
homeless, defective, and delinquent children, or to the custody court in order that the same may render the judgment
or care of any other responsible person in any other place corresponding to the crime committed by him.
subject to visitation and supervision by the Director of Public
The expenses for the maintenance of a minor delinquent
Welfare or any of his agents or representatives, if there be any,
confined in the institution to which he has been committed,
or otherwise by the superintendent of public schools or his
shall be borne totally or partially by his parents or relatives or
representatives, subject to such conditions as are prescribed
those persons liable to support him, if they are able to do so, in
hereinbelow until such minor shall have reached his majority
the discretion of the court; Provided, That in case his parents or
age or for such less period as the court may deem proper. The
relatives or those persons liable to support him have not been
court, in committing said minor as provided above, shall take
ordered to pay said expenses or are found indigent and cannot
into consideration the religion of such minor, his parents or
pay said expenses, the municipality in which the offense was
next of kin, in order to avoid his commitment to any private
committed shall pay one-third of said expenses; the province
institution not under the control and supervision of the
to which the municipality belongs shall pay one-third; and the
religious sect or denomination to which they belong.
remaining one-third shall be borne by the National
The Director of Public Welfare or his duly authorized Government: Provided, however, That whenever the Secretary
representatives or agents, the superintendent of public schools of Finance certifies that a municipality is not able to pay its
or his representatives, or the person to whose custody or care share in the expenses above mentioned, such share which is
the minor has been committed, shall submit to the court every not paid by said municipality shall be borne by the National
four months and as often as required in special cases, a written Government. Chartered cities shall pay two-thirds of said
report on the good or bad conduct of said minor and the moral expenses; and in case a chartered city cannot pay said
and intellectual progress made by him. expenses, the internal revenue allotments which may be due to
said city shall be withheld and applied in settlement of said
The suspension of the proceedings against a minor may be indebtedness in accordance with section five hundred and
eighty-eight of the Administrative Code. subsequent to the execution, be turned over to the institute of
learning or scientific research first applying for it, for the
Section Two. - Execution of principal penalties. purpose of study and investigation, provided that such
institute shall take charge of the decent burial of the remains.
Article 81.When and how the death penalty is to be executed. - The
Otherwise, the Director of Prisons shall order the burial of the
death sentence shall be executed with reference to any other
body of the culprit at government expense, granting
and shall consist in putting the person under sentence to death
permission to be present thereat to the members of the family
by electrocution. The death sentence shall be executed under
of the culprit and the friends of the latter. In no case shall the
the authority of the Director of Prisons, endeavoring so far as
burial of the body of a person sentenced to death be held with
possible to mitigate the sufferings of the person under sentence
pomp.
during electrocution as well as during the proceedings prior to
the execution. - Articles 80 – 85: repealed by PD 603 and RA 9344
- About minors
If the person under sentence so desires, he shall be
anaesthetized at the moment of the electrocution. Article 86.Reclusion perpetua, reclusion temporal, prision mayor,
prisioncorreccional and arresto mayor. - The penalties of reclusion
Article 82.Notification and execution of the sentence and assistance perpetua, reclusion temporal, prision mayor,
to the culprit. - The court shall designate a working day for the prisioncorreccional and arresto mayor, shall be executed and
execution but not the hour thereof; and such designation shall served in the places and penal establishments provided by the
not be communicated to the offender before sunrise of said Administrative Code in force or which may be provided by
day, and the execution shall not take place until after the law in the future.
expiration of at least eight hours following the notification, but
before sunset. During the interval between the notification and - 3 years or more – insular prisoner
the execution, the culprit shall, in so far as possible, be - Where will he be serving his sentence: if from Cebu
furnished such assistance as he may request in order to be then at the regional penitentiary – Abuyog, Leyte
attended in his last moments by priests or ministers of the - There is a proposal now that the national penitentiary
at Muntinlupa will be transferred to Laguna or Nueva
religion he professes and to consult lawyers, as well as in order
Ecija. There is a 50H lot there.
to make a will and confer with members of his family or
persons in charge of the management of his business, of the Article 87.Destierro. - Any person sentenced to destierro shall
administration of his property, or of the care of his not be permitted to enter the place or places designated in the
descendants. sentence, nor within the radius therein specified, which shall
be not more than 250 and not less than 25 kilometers from the
Article 83.Suspension of the execution of the death sentence. - The
place designated.
death sentence shall not be inflicted upon a woman within the
three years next following the date of the sentence or while she - The accused is prohibited from entering a certain
is pregnant, nor upon any person over seventy years of age. In place
this last case, the death sentence shall be commuted to the EX: He is prohibited from entering Cebu City. The
penalty of reclusion perpetua with the accessory penalties distance should not be less than 25km. If 25km, so
provided in Article 40. Naga. If he exceeds that he will now be liable for
evasion of service of sentence.
Article 84.Place of execution and persons who may witness the - Imposed on cases like:
same. - The execution shall take place in the penitentiary of 1. Concubinage
Bilibid in a space closed to the public view and shall be - Concubine is sentenced to destierro
witnessed only by the priests assisting the offender and by his 2. For an accused or convict who killed his spouse
under exceptional circumstance
lawyers, and by his relatives, not exceeding six, if he so
- Like caught him on the act of sexual intercourse with
request, by the physician and the necessary personnel of the another person - called death under exceptional
penal establishment, and by such persons as the Director of circumstance
Prisons may authorize. - Destierro is imposed not as a penalty but for his
protection
Article 85.Provisions relative to the corpse of the person executed 3. After lowering the penalty by certain degrees,
and its burial. - Unless claimed by his family, the corpse of the destierro would become the proper lower penalty
culprit shall, upon the completion of the legal proceedings - Art 71
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Art. 89. How criminal liability is totally extinguished. — that he was ordered to pay the value of the jewelleries
Criminal liability is totally extinguished: that he failed to return- 1million. He appealed the
decision. Pending appeal, the accused died. Q: What
1. By the death of the convict, as to the personal happens to his obligation ordered by the court to pay
penalties and as to pecuniary penalties, liability 1million?
therefor is extinguished only when the death of the A: The obligation subsists. The claim for civil liability
offender occurs before final judgment.
survives notwithstanding the death of the accused if
2. By service of the sentence;
the same may also be predicated on a source of
3. By amnesty, which completely extinguishes the
obligation other than delict, such as law, contracts,
penalty and all its effects;
quasi- contracts, and quasi delicts. Y can still file a
4. By absolute pardon;
separate civil action against the estate of Mr. X. (People
5. By prescription of the crime;
vs. Bayotas, 236 SCRA 239.
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided
2. By Service of Sentence.
in Article 344 of this Code.
- Of course if the accused has already served his
What are the grounds or causes of TOTAL sentence then there is no more criminal liability.
EXTINGUISHMENT OF CRIMINAL LIABILITY:
3. By Amnesty
1. By the death of the convict. - Completely extinguishes the penalty and all its
- CRIMINAL LIABILITY effects.
The death of the convict whether before or after final - Amnesty and pardon are the powers of the President.
judgment extinguishes CRIMINAL LIABILITY, AMNESTY PARDON
because one of the juridical conditions of penalty is
that it is personal. Is a blanket pardon Includes any crime
to classes of persons and is exercised
- CIVIL LIABILITY or communities who individually by the
But as regards his civil liability, if the decision has may be guilty of President
already become final and executory, the same shall political offenses.
not be affected by his death anymore. His civil May be exercised Exercised when the
liability is NOT EXTINGUISHED. And the claim shall even before trial or person is already
therefore be filed against his estate. investigation is had convicted
- It is enough that - Requires that the The crime of oral defamation and slander by deed shall
the decision has minimum
prescribe in six months.
already become sentence should
final and have been served.
Light offenses prescribe in two months.
executory. No
need of service.
When the penalty fixed by law is a compound one, the highest
penalty shall be made the basis of the application of the rules
5. Prescription of the crime
contained in the first, second and third paragraphs of this
PRESCRIPTION OF PRESCRIPTION OF
article. (As amended by RA 4661, approved June 19, 1966).
THE CRIME THE PENALTY
- TN that the ―oral defamation‖ which prescribes in 6
The forfeiture or loss of The loss or forfeiture of
months here refers to Grave Oral Defamation,
the right of the State to the right of the
because the prescriptive period for slight oral
prosecute the offender Government to execute
prescribes in only 2 months.
after the lapse of a the final sentence after
certain time. the lapse of a certain
There are two kinds of defamation:
time.
1. Grave
2. Slight oral- only 2months.
The case has not yet Case already filed, the
been filed accused is already
- Example: The offended party failed to file a complaint
convicted, sentence
for slight physical injuries within the prescriptive
already imposed but
period. So instead, he filed a complaint for attempted
the accused is not yet
homicide against the accused. After trial, the court
serving his sentence
finds that the crime committed is only slight physical
because he has escaped
injuries. Q: Can the accused be convicted of slight physical
from jail.
injuries?
6. By the marriage of the offended party Ans. NO MORE. When the crime proved has already
prescribed at the time the case was filed, the accused
- As provided by Art. 344 of the RPC. can no longer be convicted of such crime. Otherwise it
- This Article mentions of the private crimes would be easy to circumvent the law by just filing a
(Seduction, abduction, etc.). Rape is no longer case for the graver offense. Francisco vs CA, 122 SCRA
considered as a private crime. It is already classified 545
as a crime against person. Nevertheless, even if it is
Art. 91. Computation of prescription of offenses. —
considered as crime against person, valid marriage
The period of prescription shall commence to run
between the victim and the accused will still
from the day on which the crime is discovered by the
extinguish the criminal liability.
offended party, the authorities, or their agents, and
Art. 90. Prescription of crime. — Crimes punishable by death, shall be interrupted by the filing of the complaint or
reclusion perpetua or reclusion temporal shall prescribe in information, and shall commence to run again when
twenty years. such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped Question, is the motion meritorious? Yes! Now take note here,
for any reason not imputable to him. the start of the counting is the discovery of the crime and not
of the criminal. That is why in order to prevent the crime to
The term of prescription shall not run when the prescribe, the authorities should exert all efforts to know who
offender is absent from the Philippine Archipelago. are responsible for the crime, otherwise the case would
prescribe.
Q: When shall the prescriptive period of a crime start to
run? Now this would relate to your criminal procedure. When does
A: From the day the crime was committed or the prescriptive period stop to run? Now the filing of the case
discovered. with the prosecutor‘s office as a rule will stop the running of
the prescriptive period and will run again if the case is
Discovery by whom? dismissed on grounds which are not imputable to the accused.
1. The offended party In other words, the case is dismissed since the accused is not
2. Authority or guilty, then the prescriptive period will be suspended.
3. Agent of an authority
In the case of Jadewell parking system corp. Vs Bidua sr. 706
- Example: Supposed Mr X. planned to kill Mr. Y in a SCRA 724, SC said where the crime charged is based on
remote place. One night, he followed Mr. Y and ordinance, prescriptive period only stops to run upon filing of
stabbed him. He already prepared a graveyard 6 feet the information in COURT; not in the prosecutor‘s office.
under the ground and there he buried Mr Y. Mr X
- Prescriptive period will not run if accused is not
didn‘t know that a boy witnessed the incident. But the
found in the Philippines or is abroad.
child didn‘t have enough courage to tell what he saw
because he was just 10 years old then. He got the
Now there‘s a case, the accused executed a deed of sale,
courage to tell the authorities only when he reached
wherein a parcel of land was sold to him, when in fact it was
40 years old, because the victim kept on appearing in
not, now using the falsified document, Mr. X the accused have
his dream asking for justice. Based on the testimony
the title of the lot transferred to his name, he then registered it
of the child (now a man), a murder charge was filed
in the register of deeds, later on the title was changed to his
against Mr. X. The latter filed a motion to quash on
name. Now after 20years, the owner discovered that the title of
the ground of prescription. If you were the judge will
his lot was already in the name of the accused, he then found
you grant the motion?
out that Mr. X made a falsified document. He then filed a case
for falsification against Mr. X, the latter invoking prescription,
Ans. NO. The crime has not yet prescribed. The
stating that the falsification occurred 20 years ago. Now, the
prescriptive period did not commence to run. The
prosecution countered that the crime did not prescribe since
commission of the crime was known only to the boy
the owner just discovered it recently. Is the motion to quash
(now a man), who was not the offended party, an
filed by X meritorious? refer to the case of Cabral vs Puno 70
authority or an agent of an authority. It was
SCRA 606.
discovered by the authorities only when the boy (now
a man) revealed to them the commission of the crime. Article 92. Prescription of penalties
Now let‘s change the facts, suppose after killing Y, Mr. X just This refers to the loss of the right of the state to let the convict
left the body of Y and 3 days thereafter, when the relatives of serve his sentence.
the deceased found the decomposing body of Mr. Y, and upon
examination, it was concluded that he died with stab wounds. 1. Death and Reclusion perpetua – 20yrs
The problem here is that the authorities could not get any 2. Other afflictive penalties – 15yrs
3. Correcional penalties – 10yrs;
witness. Now Mr. X did not know that W, the boy, saw the
4. Aresto Mayor – 5yrs (exception to correctional penalties)
killing, however the latter did not have enough courage to 5. Light penalties – 1yr
report the incident to the police. He only got the courage to
told the authorities only after 30yrs when he was already an This refers to the prescription to the PENALTY imposed by the
adult. Now the police filed a case against Mr. X, and thereafter court; Accused here is already sentenced and is serving the
Mr. X filed a motion to dismiss on the ground of prescription. sentence.
Now for example, the convict is charged with murder, but the Conditional Pardon – granted by the President; and the usual
court allowed him to post bail since the evidence against him is condition here is that the offender should not commit any
not strong, but after trial, the court found him guilty of crime.
murder. The accused did not anymore appear in court, now
If condition violated – pardon revoked and the person
the court cancelled his bail and issued a warrant for his arrest,
granted the same shall be re-arrested and required to serve the
the accused was only arrested 40yrs later, now he filed a remaining portion of his sentence.
petition for habeas corpus on the ground that his
imprisonment is already illegal because the penalty imposed Article 96. Effect of commutation of sentence. - The
on him has already prescribed. Meritorious? No! Now take commutation of the original sentence for another of a
note that the prescriptive period of the penalty will only start different length and nature shall have the legal effect of
substituting the latter in the place of the former.
to run when the accused has evaded the service of his
sentence, this presupposes he already started his sentence. It is So effect of commutation is the reduction of penalty.
necessary for the prescriptive period to run that the accused
MUST HAVE SERVED HIS SENTENCE and later on escaped. Article 97. Allowance for good conduct. - The good conduct of
Because if the accused did not serve his sentence and escaped, any prisoner in any penal institution shall entitle him to the
following deductions from the period of his sentence:
then the prescriptive period will not run.
1. During the first two years of his imprisonment, he shall be
Refer to the case of Pangan vs Gatbaliti Jan. 21 2005
allowed a deduction of five days for each month of good
behavior;
Article 94. 2. During the third to the fifth year, inclusive, of his
imprisonment, he shall be allowed a deduction of eight days
Provides for the causes for partial extinction of criminal for each month of good behavior;
liability. 3. During the following years until the tenth year, inclusive,
of his imprisonment, he shall be allowed a deduction of ten
1. Conditional Pardon; days for each month of good behavior; and
4. During the eleventh and successive years of his
2. Commutation of the sentence; imprisonment, he shall be allowed a deduction of fifteen
days for each month of good behaviour.
3. Good conduct allowances which the culprit may earn while
he is serving sentence. (Good Conduct Time Allowance under Article 98. Special time allowance for loyalty. - A deduction
of one-fifth of the period of his sentence shall be granted to
Article 97). However this is already amended by RA. 10592: any prisoner who, having evaded the service of his sentence
under the circumstances mentioned in Article 58 of this
If the accused is serving his sentence in the following: Code, gives himself up to the authorities within 48 hours
following the issuance of a proclamation announcing the
a. 1st 2yrs – 20days for each month of good behavior passing away of the calamity or catastrophe to in said article.
shall be deducted
b. 3-5yrs – 23 days deduction This is another reason for granting time allowance.
c. 6-10yrs – 25days deduction
d. 11-up – 30days What is the effect if the prisoners would leave the jail facility
on occasion of calamity?
- Also includes useful behavior inside the jail such as engaging - Under Art 98, the leaving of the facility on occasion of
in productive activities.(teaching other inmates; spreading the calamity is not considered a crime. But so as not to be liable of
word of the Lord) evasion of service of sentence, the convict should return to the jail
facility within 48 hours from the announcement of the passing What are the damages to be awarded to the private offended
of the calamity. party?
1. Actual Damages
So if he surrenders within 48 hours, he does not commit any 2. Moral Damages
crime, and instead will be granted reduction of 1/5 of his 3. Exemplary Damages
original sentence.
- so let‘s say he is sentenced to 20 years, and since he as served Good to know:
10 years already, there is a remainder of 10 years for him to The fact that one committed RAPE – civilly liable for 50k; if the
serve. 1/5 of 20 is 4. So from the 10 years of service left, deduct accused is the father who committed rape– 75k
4 yrs – he now ends up with 6 years of service left.
Even if one is acquitted, may still be civilly liable in the ff cases:
If you did not escape at all, despite the calamity, how much is 1. Acquittal is merely based on Reasonable Doubt
your deduction? 2. Court finds that the liability is Purely Civil in Nature
- Under RA 10592, you are entitled to 2/5 reduction of the 3. On the ground of Torts/ Criminal Negligence
original sentence. 4. Acquittal based on Minority
If you never returned to jail, what crime did you commit? Article 101. Rules regarding civil liability in certain cases. -
- Evasion of Service of Sentence on Occasion of Calamity The exemption from criminal liability established in
subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4
We talked earlier about Time Allow of Article 11 of this Code does not include exemption from
civil liability, which shall be enforced subject to the
Article 99. Who grants time allowances. - Whenever lawfully following rules:
justified, the Director of Prisons shall grant allowances for
good conduct. Such allowances once granted shall not be First. In cases of subdivisions 1, 2, and 3 of Article 12, the
revoked. civil liability for acts committed by an imbecile or insane
person, and by a person under nine years of age, or by one
Who grants Time Allowance? over nine but under fifteen years of age, who has acted
- the Jail Warden (RA 10592) without discernment, shall devolve upon those having such
- TN time allowance may be earned by the Preventive person under their legal authority or control, unless it
Detention Prisoners. So, to determine if the offender has stayed appears that there was no fault or negligence on their part.
in jail equivalent to the maximum period, then time allowance Should there be no person having such insane, imbecile or
may be computed and earned. minor under his authority, legal guardianship or control, or
if such person be insolvent, said insane, imbecile, or minor
Article 100. Civil liability of a person guilty of felony. - Every shall respond with their own property, excepting property
person criminally liable for a felony is also civilly liable. exempt from execution, in accordance with the civil law.
This rule is due to the DUAL NATURE/CHARACTER of a Second. In cases falling within subdivision 4 of Article 11,
the persons for whose benefit the harm has been prevented
crime. In most cases, when a person commits a crime, he is at
shall be civilly liable in proportion to the benefit which they
fault to the State and the Private offended party.
may have received.
The courts shall determine, in sound discretion, the
The private offended party may file a civil case against the
proportionate amount for which each one shall be liable.
accused to hold him civilly liable. When the complainant does
When the respective shares cannot be equitably determined,
not file a separate civil case, it is deemed included in the even approximately, or when the liability also attaches to the
criminal case. Government, or to the majority of the inhabitants of the
town, and, in all events, whenever the damages have been
In the prosecution of a criminal case, considering that civil caused with the consent of the authorities or their agents,
liability is deemed included, the private complainant may hire indemnification shall be made in the manner prescribed by
a private lawyer if he can afford. If he can‘t afford, he can ask special laws or regulations.
the prosecutor may file to claim civil liability from the accused
after presenting evidence. Also, the court, after finding the Third. In cases falling within subdivisions 5 and 6 of Article
accused guilty, may order the accused to pay damages to the 12, the persons using violence or causing the fears shall be
private complainant. primarily liable and secondarily, or, if there be no such
persons, those doing the act shall be liable, saving always to
But if there is NO private complainant, a private lawyer has the latter that part of their property exempt from execution.
NO personality to appear in the case.
This deals with civil liability in cases wherein the accused is
exempt from any Criminal liability.
In exempting circumstances, there is a crime committed but shall also apply to employers, teachers, persons, and
there is no criminal. Though the accused is exempt, he could be corporations engaged in any kind of industry for felonies
civilly liable EXCEPT in paragraphs 4 and 7. committed by their servants, pupils, workmen, apprentices,
or employees in the discharge of their duties.
In paragraphs 1,2 and 3 of Art 12 (imbecile, insane,
minor), civil liability is shouldered by persons who In connection with Art 102, another exception is this article.
have control over the minor or the insane or imbecile
unless it appears that the person who has legal TN of the phrase ―in the discharge of their duties‖
authority has NO FAULT OR NEGLIGENCE.
Example: Taxi Business
If there is no person responsible for the insane or minor? The driver ran over a person. He was sued for Reckless
- the minor/insane/imbecile shall be helad liable with their Imprudence resulting to Homicide. He was convicted. Since
own property there was death, liable for 50k and 1m for the loss of earning
capacity. Who pays if the driver is insolvent?
Art 11, Paragraph 4 (avoidance of greater injury), the - the Employer, as per Art 103 because the latter is engaged in
person benefited in this case is civilly liable an industry.
Art 12, Paragraphs 5 and 6 (Irresistable If you are a Regional Director, with no business and your
Force/Uncontrollable Fear) – the person using personal driver ran over a person. Are you liable?
violence or threats shall be held civilly liable. - No, because you are not engaged in any business.
Innkeepers are also subsidiarily liable for the restitution of SC: There is no violation of due process. Requirements of due
goods taken by robbery or theft within their houses from process are met once a motion to execute subsidiary writ of
guests lodging therein, or for the payment of the value execution is filed in court and the employer is required to
thereof, provided that such guests shall have notified in comment when the motion is heard. The employer will only be
advance the innkeeper himself, or the person representing
held liable after proof that the accused cannot pay due to
him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such insolvency.
innkeeper or his representative may have given them with
respect to the care and vigilance over such goods. No liability PP vs. Pangunorum; April 11, 2005
shall attach in case of robbery with violence against or Phil. Rabbit Bus Lines Inc. vs PP; April 14, 2004
intimidation of persons unless committed by the innkeeper's
employees. The nature of liability is solidary. However, the employer may
raise the defense of diligence of a good father of a family in the
GR: Civil liability shall be shouldered by the person selection of his employees.
committing the crime.
(one of the) Exceptions: Art 102 Q: You are a storeowner. The security guard assigned in your
store left his post, rode a jeepney and robbed a nearby
Subsidiary liabilityin this article happens when a person who
is responsible for the commission of the crime cannot pay civil establishment. Are you liable?
liability by reason of insolvency, then the employer of that
person/owner of the business(innkeepers, etc) can be held A: You determine if the crime was made while ―in the discharge
liable. of his duties‖. The subsidiary liability does not arise from any
and all offenses that the employees may commit, but limited to
TN: Robbery in this Article refers only to Robbery with force those which he shall be found guilty of ―in the discharge of his
upon things. duties‖.
Article 103. Subsidiary civil liability of other persons. - The
subsidiary liability established in the next preceding article
ART. 104: WHAT IS INCLUDED IN CIVIL LIABILITY This provision does not apply however, in cases where the
thing has been acquired by the third person in the manner and
Actual or compensatory damages: under the requirements which is barred by law, such as in a
1. Restitution – return of the thing taken away public sale and provided in good faith.
2. Reparation – payment of its value
3. Indemnication for consequential damages – such as the For example, the accused above is charged with Theft. Can the
loss income while being confined in the hospital court order the pawnshop to return the thing to the private
complainant? YES. Legal basis: Art. 105.
PP vs. Pradis; July 13, 1998
ART. 105: REPARATION
Bar Q: The accused was found guilty of ten (10) counts of
Rape. When convicted, in addition to imprisonment, he was How made?
ordered to pay indemnity of P50, 000 for each count.On appeal,
the accused questioned the award of civil indemnity for each The court shall determine the amount of damage, taking into
count arguing that there was only one and the same victim. Is consideration the price of the thing, whenever possible, and its
the accused correct? special sentimental value to the injured party and reparation
shall be made accordingly.
SC: NO. Under the law, every person criminally liable is also
civilly liable. The civil liability is based on the crime committed Example: You are a victim of Robbery inside a jeepney and one
and not on the number of the victim/s. Since each count of the things taken from you by one of the robbers was your
charges different felonious acts and ought to be punished wedding ring. You include that – special sentimental value.
differently, the concomitant civil indemnity ex delicto for every
ART. 106: INDEMNIFICATION
criminal act should also be adjudged. Said civil indemnity is
mandatory upon a finding of the fact of Rape. It is distinct What is included?
from and should not be denominated as moral damages which
are based on a different moral foundation. (PP vsJalosjos; Nov. Indemnification of consequential damages shall include not
16, 2001) only those caused the injured party, but also those suffered by
his family or by a third person by reason of the crime.
ART. 105: RESTITUTION
You include here lost income; upon showing of proof thereof
How made? (pay slip, proof of hospitalization).
The restitution of the thing itself must be made whenever Formula: Indemnity for Loss Earnings
possible, with allowance for any deterioration or diminution of
value as determined by the court. Net Earning Capacity = Life Expectancy* x (Gross Annual
Income – Living Expenses**)
The thing itself shall be restored, even though it be found in
the possession of a third person who has acquired it by lawful *Life Expectancy = 2/3 x (80 – age of the deceased at the time of his
means, saving to the latter his action against the proper person death.
who may be liable to him.
**In the absence of proof, living expenses is estimated to be 50% of
Q: A cellphone was snatched and was later pawned at a the Gross Annual Income.
pawnshop. The pawnshop recovered it in good faith. Can it be
recovered?
PP vs. Mosa, Jr.; GR 1037042, June 17, 2003
A: The thing itself shall be restored, even though it be found in ART. 108
the possession of a third person who has acquired it by lawful
means, saving to the latter his action against the proper person What about if the accused is already dead but the decision is
who may be liable to him. IOW, this is without prejudice to already final and executory? The payment of liability is
whatever action that the pawnshop against he person who shouldered by the heirs provided the deceased left properties.
pawned the item.
- What about accepting public office/position? - What about defence of obedience to the de facto
GR: Not treason. EXP: when it is considered government? Valid defence?
as policy determining. It means you are Yes. Obedience to the de facto government is
occupying a highly responsible occupation considered a valid defence.
such as being a member of the cabinet.
- Defence of duress and uncontrollable fear?
- Is there a crime complex with treason? Also a valid defence.
Common crimes committed by the traitor
are absorbed in treason such as murder.
ART 115 – Conspiracy or proposal to commit treason
Because when you wage war against the
government to help the enemy, it is - 2 concepts of conspiracy and proposal
necessary that you kill. 1. It can be considered as mere
Are you liable to the ordinary crimes? preparatory act
o No, they are absorbed in treason. There 2. Or as crimes by themselves
is no crime of treason complex with It can only be considered as crime if
murder, rebellion complex murder. there is a particular provision of law
Common crimes are also absorbed in penalizing conspiracy or proposal.
rebellion. Art 115 expressly penalizes mere
o Including rape. There is no crime as conspiracy and proposal to commit
treason complex with rape because it is treason
absorbed in treason.
- What about if treason is actually committed?
- It is also considered as continuing offense just like A person is liable for conspiracy or proposal
rebellion. What is a continuing offense? if the accused did not wage war against the
There are several acts committed but the government. If the accused actually engages
accused is liable only for one crime. in war he is not liable for conspiracy or
proposal to commit treason, the same will be
- How can treason be proved? absorbed and considered as preparatory
It can only be proved by 2 credible witnesses acts.
testifying for the same act. If the prosecution Therefore, if you file conspiracy or proposal
presented 2 witnesses but the court doubts to commit treason, that presupposes that no
the testimony of 1, the accused cannot be treason yet has been committed. It is still in
convicted. the conspiracy stage.
Another way is when the accused confessed - The 2 witness rule does not apply.
in open court or the accused would plead - This can only be committed in times of war.
guilty.
ART 116 – Misprision of treason
The penalty for treason is Reclusion
Perpetua. - Every person owing allegiance to the government of
Treason cannot be proved by circumstantial the Philippines, strictly Filipino, and having
evidence. It has to be proved by 2 credible knowledge about any conspiracy who conceals or
witnesses. This is what we call the TWO who does not disclose the same when possible.
WITNESS RULE
- The accused here has knowledge about conspiracy to
- As regards adherence, it is a mental activity commit Treason against the government not
manifested in the actuations of the accused.it can be knowledge about treason. But he does not make
proved by only 1 witness or the act itself. Because that known his knowledge regarding the conspiracy to the
is a mental activity. You cannot define what is in the governor of the province or the city mayor or the city
mind of the accused. It can be proved by fiscal where he resides.
circumstantial evidence from the nature of the act - AS a RULE: you cannot be held liable if you just keep
itself. to yourself what you know about the commission of a
- The Two Witness Rule pertains to the act. crime. But if you have knowledge regarding
conspiracy to commit treason and you did not report
- Is the defence of suspended allegiance or change in it to the governor or city mayor or to the provincial
sovereignty be considered a valid defence? fiscal, you are liable for misprision of treason. You are
NO. A citizen owes absolute and permanent punished for your silence. You are not liable as
allegiance to the government.
accessory but as principal to the crime of misprision Sabah in order to recover Sabah from the rule of Malaysia. The
of treason. act of Kiram in sending armed men to Sabah would be
considered as Inciting to War or Giving Motive for Reprisals.
His act of sending armed men to Sabah in order to free Sabah
ART 117 – Espionage
from Malaysia may provoke Malaysia or give occasion for a
- Ways in committing the crime: war.
1. By entering a warship or naval or military
establishment or reservation without
authority in order to obtain any Article 119. Violation of neutrality.
information, plans, photographs or other
date related to the defence Elements:
The confidential data that the accused 1. There is a war which Philippines is not involved
wants to obtain has something to do 2. There is a regulation issued by competent authority
with the defence of our military. They for the purpose of enforcing neutrality
are military secrets. 3. Offender violates the regulation
It is not necessary that the accused has
actually obtained. It is consummated
the moment he enters the prohibited Article 120. Correspondence with hostile country.
area mentioned. Elements:
The accused here is an outsider.
1. Time of war in which Philippines is involved
If insider? Para 2
2. Being in possession by reason of public 2. Offender makes correspondence with an enemy
office he holds, of the articles, data, country or occupied by enemy troops
information referred to in the preceding 3. Correspondence is:
paragraph, discloses their contents to a a. Prohibited by Government
representative of a foreign nation. b. Carried on in ciphers or conventional signs
He is a custodian of these military c. Containing notice or information which
secrets and he discloses such might be useful to the enemy
contents Ciphers or conventional signs
The information has something to do
with defence of our country - Codes
What about if the information is If the offender intended to aid the enemy by giving notice or
confidential but it has nothing to do information, the penalty is higher.
with thedefence of our country? Is he
liable?
o NO but liable for another crime.
It could be infidelity of the
custody of public records or Article 121. Flight to enemy country.
violation of Para k, Section 3 of
Elements:
RA 3019 about Anti-Graft and
Corrupt Practices Act. 1. War in which the Philippines is involved
o CA 616 2. Owes allegiance to the Government
3. Offender attempts to flee or go to enemy country
4. Going to enemy country is prohibited by competent
June 24, 2016
authority
Part 11
Section Three – Piracy and mutiny on the high seas in
Article 118. Inciting to war or giving motives for reprisals. —
Philippine waters
Elements:
Article 122. Piracy in general and mutiny on the high seas.
1. Offender performs unlawful or unauthorized acts
- Piracy is robbery in the sea.
2. Acts provoke or give occasion for a war involving or
- There is still jurisdiction even if committed beyond
liable to involve the Philippines or expose Filipino
the Philippine territory. Piracy is punishable
citizens to reprisals on their persons or property.
anywhere. Pirates can be prosecuted in our country.
The sultanate of Sulu claims that Sabah is a part of the
2 Ways of Committing Piracy:
Philippines. Kiram was the sultan of Sulu. Sabah was paying
lease to the sultanate of Sulu because the kingdom was the 1. Attacking or seizing a vessel on the high seas or in
owner of Sabah. Kiram sent around 100 heavily armed men to Philippine waters
- The officer is not liable for trespass to dwelling - Search here is with search warrant, with court order but
because it is only committed by private persons. what makes it a crime? The search was conducted in the
absence of the subject, in the absence of any lawful
Aggravating Circumstances:
occupant or any member of his family
- Night time - But if they are all on vacation, in the presence of 2
- Any papers were not returned immediately witnesses who are residing in the same locality.
EX: You serve a search warrant. The media was also there.
Elements:
When you arrive at the place there was no one around or no
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
one home. So you did your search in the presence of the media. ARTICLE 132
Liable for violation of Art 130?
Yes, if none of the media is residing in the said barangay - Committed by any public officer or employee who shall
where the search was conducted. But if there were 2 who prevent or disturb the ceremonies or manifestations of
were residents of that barangay, no crime. nay religion.
- What if the one searched by the law enforcers is a car - Ceremony or manifestation – mass (for Catholics), service
parked in a parking area. Are those crimes committed? (for non-Catholics), prayer meeting
o Refer to the case of GalvantevsCasimero 552 SCRA 304 – - If that mass or service is being interrupted, is being
the answer to the question stopped without any valid reason then the public officer
who made such interruption or who prevents the conduct
of the same could be held liable for interruption of religious
ARTICLE 131 worship.
- Ceremony or manifestation may not necessarily be held
- This is about prohibition, interruption and dissolution of inside the church. It could be held inside the house. If the
peaceful meetings holding of one is prevented or disturbed or interrupted by
- TN of the word peaceful a public officer then the public officer is liable for
- Any public officer or employee who, without legal ground, interruption of religious worship.
shall prohibit or interrupt the holding of a peaceful - If a private person does not notoriously interrupt the
meeting, or shall dissolve the same is liable for violation for religious ceremony and the purpose is not to mock or
Art 131. offend the religious feelings, the private person could he
- When we say prohibit, there could be no meeting yet. So a held liable for unjust vexation.
person is prohibited from attending a meeting or if there is - But if the purpose of the private person is to mock or
already a meeting, the same was interrupted or dissolved. offend the religious feelings of the faithful then the crime
The public officer who committed those acts could be held committed could be violation of Art 133, offending the
liable for violation of Art 131. religious feelings.
- To be held liable, the meeting dissolved must be ARTICLE 133
peaceful. If the public officer dissolved the meetingbecause
it has become chaotic then this crime is not committed. - The accused here performs an act which is to ridicule or
- One of the elements: the one dissolving or interrupting the aimed to mock or offend the feelings of the faithful
peaceful meeting should be a public officer who is a - Case of Carlo Celdran: He was against the church because
stranger, who is not part of the meeting. he is against the RH Bill. In the middle of the mass, he
o If he is a private person then the crime committed will brought a placard with the words ―Father Damaso‖ and
be disturbance of public order under Art 153; or walked down the aisle. Charged with violation of Art 133
o If he is a public officer but he is a participant then it but case is still pending.
could be unjust vexation o According to accused he cannot be held liable for the
- TN that this article has something to do with the crime because he had no intent to offend the feelings
constitutional right of the people to peaceably assemble. of the people who attended the mass because his
The right to meet is not absolute. purpose was just to express his feelings. He was just
o The government, including LGUs including has the exercising his freedom of expression. Still pending
power to prescribe regulations to promote order and with the CA.
safety as well as the general welfare of the people. - PP vsBaes68 Phil 203
o In life with the police power of the state. - What are some acts which are considered notoriously
o LGU may pass an ordinance requiring those who will offensive to the feelings of the faithful?
assemble to secure a permit first before they are o Throwing stones at the people making a procession
allowed to meet or to conduct a rally. Why? o Calling the pope as the commander of Satan
So that the LGU may know who are the organizers
and who can be held liable if there would be
chaos. TITLE III – CRIMES AGAINST PUBLIC ORDER
- The peaceful meeting here could be a religious meeting
ARTICLE 134
132 and 133
- How is rebellion committed? Elements:
- Something to do with freedom of religion 1. That there be (a) public uprising, and (b) taking arms
- 132 – public officers; 133 – any person so could be a private against the Government
person 2. That the purpose of the uprising or movement is
either:
A. To remove from the allegiance to said Government or its - Rebellion is only a crime once it fails. If it succeeds, they
laws: become heroes.
EX: EDSA 1 – if it was a failure then the leaders would have
(1) The territory of the Philippines or any part thereof; or been placed behind bars, rebellion. But since it succeeded, they
(2) Any body of land, naval or other armed forces; or are heroes.
B. To deprive the Chief Executive or Congress, wholly or
partially, of any of their powers or prerogatives. - It is a continuing offense – offender commits series of acts
but his act will be considered as one crime
- Can just 1 person commit this? This is a crime of the masses - Common crimes are absorbed in rebellion: murder,
or a vast movement of men seeking to change the homicide, and robbery. But they cannot be held liable for
established or crime of the masses. common crimes if they commit these crimes in furtherance
- Purpose: either to remove the allegiance to the government of rebellion.
or its laws, the Philippine territory or any part thereof, or EX: Commit murder but not in furtherance of rebellion but for
any body of land, naval, or other armed forces, or deprive private purpose. Like killing a man since he believed that it is
the Chief Executive or Congress,wholly or partially, any of his wife‘s paramour, not considered as in furtherance of
their powers rebellion. Be held liable for murder.
- What is the crime committed if thousands of armed men
would attack and occupy the provincial capitol of Bohol
- Common crimes committed for personal reasons and not in
and their purpose is to declare the Independent Republic of
furtherance of rebellion are punished separately.
Bohol. Because they do not want to become part anymore
EX: Sometime in 1988, Enrile was one of those people who
of the Government of the Republic of the Philippines
because the national government neglected them. What is started a coup d‘état against Cory Aquino (no law prohibiting
the crime committed by the group of armed men? coup d‘état yet). He was also part of the EDSA. Being one of
o That is rebellion. There is public uprising and the the leaders,he was charged with rebellion. The penalty for
purpose is to remove from allegiance from the rebellion is prision mayor (Why only this? Since rebellion is
Philippine government a portion of its territory. considered a political crime.)The government during that time
- TN that size does not matter. didn‘t want Enrile to put up bail (prision mayor is bailable) so
EX: A barangay, residents of that barangay would rise against
they complexed the crime with murder. If Art 48 is applied, the
the government and take up arms and they would declare
crime with the greater offense will be applied. Rebellion
their barangay as independent from the Republic of the
complexed with crime, non-bailable. Justice Secretary before
Philippines. What is the crime committed?
was Drilon.
o That is rebellion. There is public uprising and taking
Before this case, there were those cases similar to this like
up of arms and the purpose is to remove from the
allegiance to the government a portion of its territory. (1950s cases): PP vs Hernandez, PP vs Geronimo. SC said,
– Same with MILFs case, Bangsamoro rebellion cannot be complexed with common crimes because
EX: Thousands of armed men calling themselves ―Red Army of common crimes are absorbed. The government tried to argue,
God‖ led by General Pacman and would attack the Congress those killings were not done in furtherance of rebellion. (In
in order to prevent the Congress from signing the divorce bill furtherance – as a means to commit rebellion.) It was done on
and freedom of expression bill. What is the crime committed? occasion of rebellion (there is rebellion going on and you
o The crime committed is rebellion. There is public commit murder). But SC refused to make a distinction re: in
uprising and taking up of arms against the furtherance and on occasion. Whether the killing is done in
government and the purpose is to deprive the furtherance of rebellion or on occasion of rebellion, common
Congress of its power. crimes are absorbed. (Enrilevs Salazar, 186 SCRA 217)
EX: A group of persons would take up arms in order to
prevent the SC from exercising its powers. What is the crime - This provision has been amended.
committed? 1. Penalty is already reclusion perpetua.
2. There is a separate provision for coup d‘état
o Not rebellion, since SC is not included here. Only the 3. The phrase before ―who while holding any public office or
Chief Executive or the President, or the Congress employment takes part therein engaging war against the
wholly or partially. If the purpose of the uprising and forces of the government, destroying property or committing
the taking of arms is to prevent the SC from exercising serious violence, exacting contributions or diverting funds
its powers then that could not be rebellion. It is not appropriated‖. This phrase has already been deleted.
anymore included in the definition of rebellion. The The consequence of this deletion is that rebellion can
crime could be sedition. now be complexed with common crimes. But there is
no recent jurisprudence so the controlling
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
jurisprudence is Enrilevs Salazar. So, common crimes - TN: definition, who can be held liable, and the purpose of
are absorbed in rebellion. the attack
- Distinguish rebellion from treason: (**be able to know)
TREASON REBELLION
ARTICLE 135
The purpose of staging It is not
the war is to help the - The principal offenders in coup d‘état are: military, police
enemy or persons holding public office.
- Penalties – before punishable only by prision mayor but
Adherence to the enemy Adherence to the rebels now:
and giving aid and even giving them aid or Leaders– By reclusion perpetua, the same with coup d‘état
comfort is treason comfort is not rebellion Participants of rebellion – Reclusiontemporal so bailable
Person in the government who participates or executes
EX: If the government is fighting a foreign enemy and a group
direction or commands of others – Reclusion temporal
of persons are also fighting against the government but not for
Civilian who supports or finances or aids in undertaking
the purpose of helping the foreign enemy. They are liable for
coup d‘etat – Prision mayor in its maximum
rebellion and not for treason.
- If not certain who the leader is under, any person who
directed the others, spoke for them (spoke to the media or
spokesman), signed receipts, shall be their leader
- What is the crime committed if it is a group of military elite
would attack the TV station and the purpose is to cease or
diminish government powers? Coup d‘état.
ARTICLE 134-A
Requires public uprising. Coup d‘état It does not also ARTICLE 138
require public uprising - About inciting to rebellion or insurrection
because it relies more on the - Inciting - inducing
swiftness and stealth - Any person who, without taking arms or being in open
necessary for seizing power. hostility against the Government, shall incite others to the
execution of any of the acts mentioned in Art 134 by means
of speeches, proclamations, writings, emblems, banners or 2. Prevent the National Government, or even the Local
other representations towards the same result could be Government or any public officer thereof to freely exercise
held liable for inciting to rebellion or insurrection. their function of their powers, or to prevent the execution
- Something to do with our freedom of expression or speech. of any administrative order
EX: Let us make this government fall and let us make a new EX: The acting mayor issued an order for the return of the city
government, a government for the poor and oppressed. That issued cars. The barangay captains numbering to 100 rise
can be considered as inciting to rebellion or insurrection. publicly and tumultuously in order to prevent the city mayor
from implementing such order. What is the crime committed?
EX: If those people induced would actually fight against the Sedition.
government because of its inducement. What is the crime
committed by the person inducing them? Rebellion, not EX: City mayor issued an order to remove all those informal
anymore inciting to rebellion. settlers living along the creek/s. The informal settlers
organized themselves and rise publicly and tumultuously in
- Inciting to rebellion is committed when rebellion did not order to prevent the city government from removing them or
take place in spite of his inducement. If those people he
driving them away. What is the crime committed? Sedition.
induced would actually fight against the government
because of his inducement, the crime committed is
EX: A group of policemen are trying to serve the warrant of
rebellion and he is considered as principal by inducement.
Those people who fought against the government are arrest against the accused, Jaguar but the neighbors of Jaguar
considered as principals by direct participation. rise public and tumultuously in order to prevent the police
from serving the warrant of arrest or arresting the accused.
***Learn to distinguish one from the other: rebellion, sedition, coup What is the crime committed? Sedition because they want to
d’état. prevent the National government or is officers to exercise their
functions.
ARTICLE 139
3. Inflict hate or revenge upon the person or property of the
- How is sedition committed? Sedition is committed by public officer or employee
persons who rise publicly and tumultuously. There is also EX: The mayor issued an order to clear the sidewalks from all
public uprising here. Cannot be committed by one person,
sidewalk vendors. The sidewalk vendors resisted, got angry
at least 4 because of the word tumultuously.
with the mayor, marched and rise publicly and tumultuously.
- Purpose of the participant is to have redress of their
grievances outside of legal means They went to City Hall looking for the mayor since they want
- They rise publicly and tumultuously in order to attain by to kill him or beat him black and blue. What is the crime
force, intimidation or other means outside of legal methods committed? Not only direct assault but sedition. If there is no
and any of the 5 purposes: public uprising and they only attacked the mayor that is now
1. Prevent the promulgation or execution of any law of the direct assault. If the attack is coupled with public uprising, that
holding of any popular election
is sedition.
EX: What is the crime committed if a group of persons would
rise publicly and tumultuously in order to prevent the holding EX: They are looking for the mayor but they were not able to
of the May 11 election? That is sedition. see the mayor, only his car. They vent their ire on the car of the
mayor. They destroyed the car by striking it. What is the crime
- They do not want to overthrow the government. They do
not want to deliver the country to the foreign enemy. They committed? Not only malicious mischief because there is
want to achieve their goals by violence, intimidation or public uprising, that is sedition.
other means outside of legal means.
EX: What is the crime committed if a group of persons, 4. Commit, for ant political or social end, any act of hate or
numbering from 50-100 would rise publicly and tumultuously revenge against private persons or any social class
- TN that in sedition that the victim here could be private
(violently, disorderly) in order to prevent the DOH from
persons
implementing the RH law? They do not want the DOH to EX: A group of persons would rise publicly and tumultuously
distribute condoms, pills, etc. Sedition is the crime committed. and would kill all the Chinese or Turks or gays. What is the
crime committed? Sedition.
EX: They rise publicly or tumultuously to prevent the DAR in
5. Despoil (take away), for any political or social end, any
implementing the CARP Law. What is the crime committed?
person, municipality or province, or the National
Sedition. Government of all its property or any part thereof
EX: A group of persons would rise publicly and tumultuously Different acts of inciting to sedition:
and would forcibly open the warehouse of the NFA and take
away all the sacks stored therein. What is the crime committed? 1. Inciting others to the accomplishment of any of the
Not only theft but is sedition. acts which constitute sedition by means of speeches,
proclamations, writings, emblems etc.
- In order to commit sedition there must be public uprising - This has something to do with our freedom of
plus any of those purposes. (memorize or familiarize) speech.
- PP vsUmali 96 Phil 185: About a Congressman who hired 2. Uttering seditious words or speeches which tend to
rebels in order to kill his opponent in an election. He
disturb the public peace.
thought that he was going to lose. So the person killed the
3. Writing, publishing or circulating scurrilous libels
opponent. What is the crime committed? SC said that the
crime committed is sedition under Par 3, Inflict hate or against the Government or any of the duly
revenge upon the person or property of the public officer constituted authorities thereof, which tend to disturb
or employee. the public peace.
- PP vsTahil 52 Phil 318: About resisting a warrant of arrest i. Which tend to obstruct any lawful officer in
under Par 2, Prevent the National Government, or even the exercising the functions of his office; or
Local Government or any public officer thereof to freely
ii. They tend to instigate others to cabal and meet
exercise their function of their powers, or to prevent the
execution of any administrative order together for unlawful purposes; or
- If there is not public uprising and any of those purposes or - Meaning to secretly meet.
acts is committed that is not sedition. If there is public iii. They suggest or incite rebellious conspiracies or
uprising but none of those purposes is present then there is riots; or
no sedition. It should be public uprising plus any of the iv. The lead or tend to stir up the people against the
purposes. lawful authorities or to disturb the peace of the
- Common crimes are not absorbed in sedition. The accused
community, the safety and order of the
liable for sedition can also be held liable for murder. Or
could be liable for malicious mischief. Government.
ARTICLE 140 This provision may affect or may have something to do with
our freedom of speech or freedom of the press bec under this
- Penalty: provision, if the speech or writing tends to disturb or obstruct
Leader – Prision mayor in its minimum period any officer from executing the functions of his office. Or if such
Mere participants – Prision correctional writings or speech tend to instigate others to meet together for
unlawful purpose. Or tend to stir up people against the lawful
ARTICLE 141 authorities, then such writings or speech or words uttered may
- There is conspiracy to commit sedition. be punished under this article.
- Proposal to commit sedition is not punishable. Proposal to
commit sedition is merely a preparatory act because there Recall from Political Law:
is no particular provision penalizing the act.
2 RULES RELATIVE TO SEDITIOUS WORDS:
ARTICLE 142
- Inciting to commit sedition 1. CLEAR AND PRESENT DANGER RULE
- Something to do with our freedom of speech, freedom of - Meaning, if there is a danger of public uprising
expression
and such danger is both clear and imminent, the
- Clear and present danger
seditious words uttered can be held punishable.
- Dangerous tendency rule
- Acts:
1. By speeches - IOW, the words must be of such a nature that by
2. Uttering seditious words uttering them there is a danger of a public
3. Writing or circulating scurrilous (obscene) libels uprising and that such danger should be both
CLEAR and IMMINENT.
June 26, 2016
Part 12 - It is required that there must be a reasonable
Art. 142. Inciting to Sedition ground to believe that the danger apprehended is
Q: What about if what is being disturbed is the proceedings of 1. Any meeting ATTENDED BY ARMED PERSONS for the
the Prosecutor’s Office, or of the Courts, and there is no public purpose of committing any of the crimes punishable under
uprising? What is the crime committed? the Code.
A: IF ANY PERSON PRESENT AT THE MEETING - Under the LGC, Section 388, the following are also
CARRIES AN UNLICENSED FIREARM: considered persons in authority:
1. Punong Brgy/ Brgy. Captain
1. It is presumed that the purpose of the meeting insofar
2. Kagawads/ Brgy. Councilors
as he is concerned is to commit acts punishable under
3. Members of the Lupong Tagapamayapa
the Code; and
2. He is considered a leader or organizer of the meeting.
Under the last paragraph of Art 152, just for the purposes of
Art. 147 Illegal Association. Art 148, 149 and 151, the following shall also be deemed
persons in authority.
ILLEGAL ASSMEBLY ILLEGAL ASSOCIATION
1. teachers, professors and persons charged with the
It is necessary that there is an Not necessary that there be supervision of public schools or duly recognized private
actual meeting or assembly of an actual meeting. schools, colleges and universities and
armed persons for the
2. lawyers in the actual performance of their professional
purpose of committing any of
duties or on the occasion of such performance.
the crimes punishable under
the Code, or of individuals Q: What about an AGENT OF A PERSON IN AUTHORITY?
who, although not armed are
incited to the commission of A: Under the 2nd par. of Art 152, any person who by direct
treason, rebellion etc. provision of law or by election or by appointment by
competent authority, is charged with the maintenance of
It is the meeting and Mere act of forming or
public order and the protection and security to life and
attendance at such meeting organizing; and mere
property, such as barrio councilman, barrio policemean and
that are punished. membership in that assoc is
barangay leader, and any person who comes to the aid of
punishable.
persons in authority , shall be deemed an agent of a person in
authority.
- It means that he has the power and authority to govern NOTE: Any person who comes to the aid of a person in
and execute laws. authority shall be deemed agent of a person in authority.
- Now, in the same case, instead of stabbing, the - ―Shall bury with pomp the body of a person
attacker just boxed the vendor, what‘s the crime legally executed.‖ – before when there was death
committed? Now it is not direct assault, instead it penalty, if a convict is to be executed, and upon
is resistance under article 151. Pursuant to burial, a person would ―shout for justice‖, then
jurisprudence, if the victim is an APA, the force they would be liable under this article.
used must be serious in order to constitute direct - Another example: The ―Tsunami/Chona Mae‖
assault otherwise it will only be penalized under incident
article 151. - Article 154. Unlawful use of means of
- Article 150. Disobedience to summons issued publication and unlawful utterances
by Congress/committees/subcommittees - (Refer to codal provision; discussion revolves
- Committed by any person who having been around the provision itself)
summoned to attend as witness, however refuses - Example: False news which may endanger the
without legal excuse to obey the same, or refuses public order
to be sworn or placed under affirmation or refuse - Article 155. Alarms and Scandals (STAR
to answer any legal inquiry or produce any PROVISION)
books/papers in his position. - How committed:
- Article 151. Resistance or disobedience to PA or - 1.By any person within any town/public place,
APA shall discharge any firearm/rocket/firecracker or
- (Already mentioned in the discussions in the other explosives calculated to cause alarm or
previous articles.) danger.
- Any person not being included in the preceding - Example: A person firing his firearm (not aimed
articles shall resist or seriously disobey any PA or at anybody) at Colon Street causing panic among
APA while in the performance of duties. When the people
the disobedience is not serious, then it‘s just - What if the firearm is only fired in a place where
simple disobedience. its only you and your neighbor in the area? That
- Elements: would be considered as alarms and scandals
- 1. In the performance of duty since it is not in a public place, it may only be
- 2. Gives a lawful order unjust vexation.
- Article 152. (already discussed this; definition - What if the firearm is aimed at a person but the
of PA and APA) latter is very far away? Now the crime here
- CHAPTER V. PUBLIC DISORDERS instead is illegal discharge of firearm, why is it
- Article 153. Tumults and other disturbances of not attempted homicide? Although the firearm is
public order pointed at a person, the intent to kill is negated
- (refer to codal provision for the modes) by the distance, however if the firearm is a high-
- Notes: powered one, then that could be considered as
- (relevant matters as discussed by Judge D) attempted homicide.
- If disturbance is done by more than 3 armed - What if the firing of the firearm or a firecracker is
persons (at least 4) with used inside a movie house? Now that could be
threat/force/intimidation, then the same is public disorder under article 153.
considered as TUMULTOUS. - However, as to firecrackers, if the same is used
- Any person who in any meeting, association or during holiday season such as Christmas, then
public place shall make an outcry tending to there would be no crime since it‘s a tradition.
incite rebellion/sedition or in such places, shall This article only presupposes that the firecracker
display placards/emblems etc. which provoke a is used to cause alarm or serious disorder.
disturbance of the public order. - 2. Any person who shall instigate or take active
- Now the outcry here, or outburst/shouts, must part in any charivari or other disorderly meeting
be spontaneous, meaning it is not consciously offensive to another or prejudicial to public
calculated to induce others to commit tranquillity.
sedition/rebellion; otherwise the crime would be - Charivari – making unnecessary noises (kanang i
inciting to commit rebellion/sedition. paka-pakaangkaldero)
- 3. Any person while wandering about at night or If he is a mere detention prisoner – NO CRIME
while engaged in any other nocturnal COMMITTED, but connect this with Crim. Procedure:
amusements, shall disturb the public peace; If he has been arraigned – he can be tried in
absentia because he is deemed to have
- Example: Your neighbor singing to the karaoke
waived his right in the succeeding
late at night in a public area/place. However if
proceedings.
only the 2 of you are in the area, then it‘s just If he is eventually convicted – he will lose his
unjust vexation. right to appeal the decision convicting him
- 4. While intoxicated or otherwise, shall cause any
disturbance or scandal in public places; but if the If the convict is not yet serving his sentence when he
act is serious then it will fall under article 153. escaped – not liable for Evasion of Service of Sentence
- Some LGU have this disturbance, however if no
Aggravating Circumstances (Penalty shall be higher):
ordinance is made regarding intoxication and
When the escape takes place by unlawful entry, or by breaking
causing disturbance in public places, then this doors, windows, gates, walls, roofs, floors; using picklocks,
could also be a basis for the arrest. false keys; disguise, deceit, violence; attacking the guards,
- Article 156. Delivering Persons From Jail connivance with other convicts
- Any person who shall remove from any jail, any
person confined therein, or shall help the escape Art. 157. Evasion of Service of Sentence
- applicable even if the penalty imposed is merely Destierro
of such person by means of violence/
(prohibited from entering a certain place)
intimidation or bribery.
- Notes: Situation:
- If the escape is through bribery then the penalty X escaped because the jailguard was bribed. What are the
is higher. crime/s committed by the jailguard?
- Take note, Bribery will always be punished; it Bribery
will not create a complex crime, so there will be 2 Infidelity in the Custody of Prisoner (Art. 223) – this
crime could only be committed by a custodian/one
crimes committed, delivery of persons from jail
charged with the custody of the prisoner at the time
and of bribery. the latter escaped.
- What if there is no bribery or violence employed? Crime of the bribe-giver?
Then the penalty would be lower. Corruption of Public Officer
- What if the prisoner is detained and is serving Suppose the one bribed is not the jailguard but was the janitor
sentence for the crime of of the jail or the cashier? What is the crime committed?
Art. 156- Delivery of prisoners from jails
treason/murder/parricide? What crime is
committed? Then here the offender who helped So TN: Evasion of Service of Sentence is connected with
the escape is an accessory of such crime, Prescription of Penalty (not Crime, Penalty!)
remember article 19 par. C? Prescriptive period -
- Now as to the prisoner who escaped? What is his RUNS: from the moment convict escapes; and
liability? Now this time it depends. If he is a STOPS: when he is recaptured OR he commits another crime
convicted prisoner, then he is liable for evasion of while he is outside the detention facility
service of sentence under the next article.
- What if he is a mere detention prisoner? Then he Art. 158. Evasion of service of sentence on the occasion of
does not commit any crime. disorder, conflagrations, earthquakes, or other calamities.
If the prisoner who escaped is a convicted prisoner, Remember the Article in Book 1 about Loyalty of the Prisoner
and he was serving sentence when he escaped- liable (On occasion of calamity he would escape)
for EVASION OF SERVICE OF SENTENCE. - deduction is 1/5 if he escaped on occasion of calamity and
returns within 48 hours after declaration of the Pres.
Connect this to Prescription of Penalty (Art 92):
- Prescription of penalty starts to run when the
prisoner escapes from jail while serving sentence. In If prisoner did not return? What‘s his crime?
other words, for it to apply, the escaping prisoner - This article, Art 158 – a convict who shall evade the service of
necessarily commits another crime, which is Evasion sentence by leaving the penal institution where he shall have
of Service of Sentence. been confined on occasion of disorder resulting from
conflagration, earthquake, catastrophe or during a mutiny
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
Review: If the prisoner did not leave the institution at all? Art. 162. Using forged signature or counterfeit seal or stamp.
What‘s the effect? – Deduction of 2/5 - talks about the user of the forged signature or counterfeit seal
Art. 159. Other Cases of Evasion If the person who forged is also the person who used
- this is a violation of Conditional Pardon – only liable for Art. 161. Only one crime/
If the person only used – liable for Art 162
TN that a prisoner is not required to serve the minimum
period of his sentence. What is required is that the decision is Art. 163. Making and importing and uttering false coins.
already final and executory. Uttering – means ―use‖
False coins – not authorized by BSP as legal tender even if it is
In conditional pardon, the condition is that the prisoner will of greater value
not commit ANY infraction (even if not a crime; ex: driving
without license) while he is outside. If he violates the Case: Accused polished a copper coin making it appear as a
condition, he can be charged under Art 159. silver coin. He went to a store and used it. Is there a violation
of Art 163? No. There is no counterfeiting here because the
Penalty copper coin is genuine.
- if the remaining period is more than 6 years, NO PENALTY.
He only serves the remaining period. False coin
- if less than 6 years, there is a crime – violation of Conditional – Meaning the coin is not authorized by the BSP.
Pardon which is penalized with Prision Correctional Minimum Mutilation
AND service of the remaining portion of his sentence. – Taking off part of a coin and replacing it with a metal of a
TN that the court cannot order the convict to serve the lower or lesser value or inferior quality.
remaining period of his sentence because that power belongs (Irrelevant provision)
to the President who granted the Conditional Pardon
In re: PD 247
TN: It is a condition sine quanon that before the convict can be
convicted of Art. 159 that he is first found guilty in the crime ART. 165: Selling false or mutilated coins
that he committed while on pardon.
– But actually it‘s not selling but possession of mutilated or
Art. 160. Commission of another crime during service of
false coin with intent to utter (or use) the same
penalty imposed for another offense; Penalty.
What obligation or security includes? Bonds, certificates of occasions the proper amount of change in lawful money, and
indebtedness, national bank notes, coupons, treasury notes, when arrested and asked by the policeman to explain the
certificate of deposits, bills, etc. possession of the same, the offender refused to make any
explanation, stating he would know what to say in court. In
Checks are EXCLUDED because when you falsify a check, court, he failed to explain his possession of the forged bank
you commit falsification, not under Article 166 but under bills. (People vs. Co Pao, 58 Phil 545)
Article 172, falsification of a commercial document.
Another, when somebody discovered that the P20-bill to be
This article also includes counterfeiting obligations or changed was forged, the owner snatched it from the one who
securities issued by a foreign government such as US treasury was examining it and tore it to pieces. (People vs Quinto, 60
bills or documents issued by foreign bank. Phil 351)
Remember when we discussed Article 2, we talked about the ART. 169: How forgery is committed?
territorial and extraterritorial effects of our penal laws. Take
note that our courts have jurisdiction over such crime even 1. By giving to a treasury or bank note or any instrument
though the forging or the falsification of the notes or payable to bearer or to order mentioned therein, the
documents issued by the Philippine government is done appearance of a true and genuine document.
abroad. 2. By erasing, substituting, counterfeiting, or altering by any
means the figures, letters, words, or sign contained
ART. 167: Counterfeiting, importing and uttering therein.
instruments not payable to bearer
Forgery includes falsification and counterfeiting.
Where to prosecute the ―user‖? Under Article 168.
ART. 170: Falsification of legislative documents
ART. 168: Illegal possession and use of false treasury or
bank notes and other instruments of credit Crime punished: Any person who, without proper authority
therefor, alters any bill, resolution, or ordinance enacted or
So, for example you have a fake P500 bill, which you bought approved or pending approval by either House of the
for P50. You used the same to buy 1 pack of cigarettes. What is Legislature or any provincial board or municipal council.
the crime that you have committed? Violation of Art. 168 - Illegal
possession and use of false treasury or bank notes. ***Five Star Articles: Articles 171 and 172***
For example you are a store owner and you are in possession ART. 171: Falsification by public officer, employee or notary
of a fake P500 bill and you place it in your table for or ecclesiastical minister
comparison in case you come across the same fake bill. What is
the crime committed? None, because there is no intent to use. 1. Counterfeiting or imitating any handwriting, signature or
rubric
Possession must be coupled with intent to use.
The word imitating includes simulating or feigning.
How do you determine ―intent to use‖? Intent to use may be
determined from the volume or number of said notes and the In counterfeiting, there is an attempt or intent to imitate the
acts of the accused taken in connection therewith. So, the acts signature of another. So in other words, the person whose
of the accused should be taken into consideration.
signature you try to imitate knows how to write.
Common defense – no knowledge that it was fake But in simulating or feigning, the person does not have
actually any signature. For example, making it appear that a
Conduct of the accused is considered to establish knowledge
person who does not know how to write has signed the
of forgery.
document.
What is the crime committed when you prepare a deed of sale 4. Then another is making untruthful statements in narration
purportedly signed by your parents indicating that a parcel of land is of facts
sold to you when in fact they did not sign the documents and it was
you who imitated their signatures? That is falsification. - The accused here has the obligation to narrate facts
- The offender makes in documents statements in
2. Causing it to appear that persons have participated in an narration of facts that he has the legal obligation to
act or a proceeding (when in fact he did not) disclose the truth of the facts narrated by him but the
facts narrated are absolutely false, contrary to his
In our previous example, you prepared a deed of sale obligation.
purportedly signed by your parents by imitating their - The perversion of the truth is made with the wrongful
signatures, what acts of falsification did you commit? intent injuring the third person.
- What is ―making untruthful statements in the
That is par. 1 because you imitate their signatures. And that is narration of facts?‖
par. 2 also, because you made it appear that your parents have Example: when you take the BAR, you will
prepared the deed of sale when in fact they did not. be required to answer ―Have you ever been
convicted to any crime involving moral
So acts of falsification can be a combination of any of the acts
turpitude?‖ You have the obligation to tell
mentioned under Art. 171.
the truth. If you have been charged and you
answered No, that is making untruthful
Another example is a common practice in the workplace. You
statements in a narration of facts. That is
texted your co-worker saying that you cannot come to the
falsification.
office on time so you asked him to punch your time card in.
But for instance your statement is a form of
What crime did you commit? That is falsification. You made it
affidavit but false, that is not falsification
appear that he had punched his time card in on time when in
because false statement in an affidavit is not
fact he did not.
considered falsification but perjury.
- One of the important requirements is that there must
Or for example you took the civil service exam for your
be an obligation imposed by law for the accused to
brother. What crime did you commit? That is falsification,
tell the truth.
because you made it appear that he took the exam when in fact
Example: The accused in order to secure a
he did not. If there was conspiracy between the two of you,
driver's license, he secured a residence
then the both of you should be held liable for falsification.
certificate. In the residence certificate, he
made false information to the clerk as to his
Or when you vote for and in behalf of another. That is also
falsification because you made it appear that he voted when in full name, place and date of birth,
fact he did not. citizenship, civil status, length of residence
in the Phils as well as in the city or
3. Attributing to persons who have participated in any act municipality issued. He was convicted of
or proceeding statements other than those in fact made falsification. What is the act? Making a false
by them statement as to the narration of facts because
he has the legal obligation to disclose the
This is the act of twisting words or putting words in the mouth truth in his residence certificate.
of the offended party.
So for example, you agreed to execute a real estate 5. Another, altering true dates
mortgage but because the other party does not know
about these transactions, instead of executing a real estate - The date must be material.
mortgage, you executed a deed of sale. That is attributing - Art 125, delay in the delivery of arrested person or
to persons who have participated in any act or delay in the filing of appropriate case against the
proceeding statements other than those in fact made by arrested person. What is the reglementary period? 12,
them. 18, 36.
There was once case where the arresting
policeman, in order not to be charged by Art
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125, he changed the date of the arrest. in Civil Law from 63 to 73, Remedial Law from 58 to
Instead of June 20, he changed it to June 24. 64. The average was changed from 72.8 to 75. What
Why did he change? In order to avoid crime or crimes did she commit? The crime is
prosecution for violation of Article 125. Is the FALSIFICATION. Under what Acts?
date material? Yes. Par 2. Causing it to appear that persons have
participated in any act or proceeding when they
6. Another, is making alteration or intercalation (insert) in a did not in fact so participate;
genuine document which changes its meaning Par. 3, Attributing to persons who have
participated in an act or proceeding statements
- What is the crime committed in case of dagdag-
other than those in fact made by them;
bawas? Or you change the amount appearing in the
Par. 6, Making any alteration or intercalation in a
official receipt. For instance, the amount is 5000, you
genuine document which changes its meaning.
erased the last 0. It changed the amount. It is
People vs. Romualdez and Mabunay, 57 Phil 14
falsification.
- Take note: if the purpose of committing falsification is Let‘s go back to Article 171. Under this Article, when the
to commit another crime, there is a complex crime. So accused is a public officer or public employee or a notary
relate to Art 48.the crime committed is malversation public or ecclesiastical minister, the same penalty shall be
of public funds through falsification of public imposed for committing any of the offenses enumerated with
document. respect to record or document of such character that each
falsification may affect the civil status of persons. Otherwise,
7. another act is, issuing in an authenticated form a document
they will only be liable as private persons. The document
purporting to be a copy of an original document when no
falsified must affect the civil status of the person.
such original exists, or including in such copy a statement
contrary to or different from that of the genuine original.
What is the difference in Art 171 and Art 172?
- ex: Private person who changes the amount Officers/Employees or Notaries Public who did not
appearing in a check. A check is a kind of commercial take advantage of their position
document. 2. Falsification of Private Document by any person
3. The Use of falsified document
2. Any person who, to the damage of a third party, or - under the 3rd par. Of Art 172, it says, ―Any person
with the intent to cause such damage, shall in any who shall knowingly introduce in evidence in any judicial
private document commit any of the acts of proceeding or to the damage of another or who, with the
falsification enumerated in the next preceding article. intent to cause such damage, shall use any of the false
- refers to falsification of private documents documents embraced in the next preceding article, or in
- ex: X, debtor prepares a purported receipt signed by any of the foregoing subdivisions of this article, shall be
Y the creditor showing that he has paid Y when in punished by the penalty next lower in degree.‖
fact Y did not execute such receipt. Receipt here is a - so if the offender knowing that a document is
private document. falsified, introduces it in court – then he is liable of
- ex: X prepares a falsified Transcript of Records Use of Falsified Document. But if he is the author, he
(TOR) purportedly issued by USJR. The TOR here is a will be liable for Falsification under par 1 or 2 of Art
private document. 172, .
But if the TOR is purportedly issued by a public - use could also mean use in any transaction even if
school (CNU, UP), the crime is falsification of a not a judicial proceeding. Ex: the falsified document is
public/officialinstrument because such is prepared by used in applying for a job, but he is not the author of
the school register of such public school, who is a the falsification, liable for Use of Falsified Document.
public officer in the course of the performance of his
official duty. But considering that he is a private POSSESSOR OF A DOCUMENT IS PRESUMED TO
person, he shall be prosecuted under 172. Art 171 is BE THE AUTHOR OF THE FALSIFATION. (People vs
reserved for public officers who take advantage of his Sindaydigeo 81 SCRA 120)
position – so he could be a custodian or he has some
participation in the preparation of the document by There could be a crime of Falsification of Commercial
reason of his position. Documents thru Reckless Imprudence. Ex: You signed a
Connect this to Art 14 (Aggravating). Considering falsified document without examining it. You signed
that taking advantage of the position is already an it right away.
element of the crime, the same will not anymore
increase the penalty to its maximum period. Private Documents considered as Public Documents:
1. Deed of Sale acknowledged before a Notary Public
There could be no complex crime of Estafa thru - if not acknowledged, it is private
Falsification of Private Documents. It will not result in 2. When a document becomes part of an official record
a complex crime. - ex: a receipt when made by your office as a support
- ex: A cashier in a private company falsifies the of your liquidation. Now the receipt becomes a public
receipts so that she could spend the money for her record.
personal use, the crime committed is NOT Estafa thru
Falsification of Private Documents. It is either Estafa TN:
alone orFalisifcation of Private Documents alone. It If the document falsified is Public, Official or Commercial
depends upon which crime is committed first. - Falsification may be complexed with another crime.
- Why doesn‘t it result to a complex crime? This is so - damage to 3rd person is not required because the principal
because one of the elements of Falsification of Private thing that is punished is the violation of public faith and the
Documents is damage to 3rd persons. This is the same perversion of truth.
with Estafa. So they have the same element. Thus,
there is no complex crime of Estafa thru falsification Art. 173. Falsification of wireless, cable, telegraph and
of Private Doc. telephone messages, and use of said falsified messages.
May already be OBSOLETE since there are no more telegrams.
Actual damage is not necessary. See par.2 of Art 172,
―any person who, to the damage of a 3rd party, OR with the Case: the telegraph operator who received 2 telegrams for
intent to cause such damage‖ it is enough that the transmission purposely reduced it by 12 and 8 words and he
falsification is committed to cause damage to 3rd persons.‖ pocketed the differences in the prices. (the longer the message
- ―Damage‖ may include damage to the honor of a 3rd in a telegram, the more expensive.)
person.
Art. 174. False medical certificates, false certificates of merits
3 acts penalized in Art 172: or service, etc.
1. Falsification of a Private, Official or Commercial
document by a Private Individual or Public Persons liable for falsification of certificates
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1. Physician or surgeon who, in connection with the practice 1. Making or introducing into the Philippine Islands any
of his profession, issued a false certificate. stamps, dies, marks, or other instruments or implements
intended to be used in the commission of the offenses of
For example, you were absent from work because you were
counterfeiting or falsification mentioned in the preceding
partying the night before. You asked your doctor-friend to
sections of this Chapter shall be held liable under this
issue a medical certificate indicating therein that you suffered
Article.
from LBM. What is the liability of the doctor? He could be held
liable under article par. (1) Article 174, Issuance of false 2. Mere possession, with the intention of using them, is
certificate. likewise punishable under this Article.
Or, you were punched and although the wounds could heal in Article 177. Usurpation of authority
just five (5) days, you made it fifty (50) days so that the penalty
will be higher, it will become serious physical injuries, because There are 2 crimes here:
sometimes, in physical injuries cases, the gravity of the offense
will depend on the number of healing period. What is the 1. Usurpation of authority
liability of the physician? Issuance of false certificate.
―Any person who shall knowingly and falsely represent himself to be
an officer, agent or representative of any department or agency of the
2. Public officer who issued a false certificate of merit or
Philippine Government or of any foreign government‖
service, good conduct or similar circumstances.
What is the liability of person representing himself as a policeman
For example, you applied for a position in the government.
when in fact he is not? Usurpation of authority under Article
The position requires 3 years of experience. You asked for a
177.
certificate signifying that you have years of experience when in
fact you just graduated. What is the liability of the one issuing the How about for example, you pretended to be a priest because the
certificate? Issuance of false certificate. priest is absent, are you liable under this Article? No. To be liable
under this article, the person must falsely represent himself to
If the one who issued the same certificate is a private company
be an officer, agent or representative of any department or
or person, the offense is the same although the penalty will be
agency of the Philippine Government or of any foreign
lower.
government. If he pretended to be a priest when in fact he is
Example if your mother would like to avail of the Cebu City‘s not, he cannot be charged under Article 177.
allowance for senior citizens. To avail, you must be a resident
2. Usurpation of official functions
in the barangay for at least six months. If your barangay
captain will issue a certificate signifying that you have been ―One, who, under pretense of official position, shall perform any act
residing in the place for more than six months when in truth pertaining to any person in authority or public officer of the
and in fact you just transferred the other day, the barangay Philippine Government or any foreign government, or any agency
captain is liable for issuing false certificate. thereof, without being lawfully entitled to do so‖
3. Private individual For example, without saying anything, you man the traffic.
Certification from the call center that applicant was employed
You saw someone violating traffic rules; you flagged the
for 7 years, when in fact, one month only. Supervisor who
issues false certificate is liable for Issuance of false certificate. motorist and asked for his license. What is your liability?
Usurpation of official functions, because you performed an act
Art. 175. Using false certificates. Any one who shall pertaining to a person in authority or public officer.
knowingly use any of the false certificates mentioned in the
next preceding article shall be liable. These two acts, usurpation of authority and usurpation of
official functions, may be considered only as one crime.
Art. 176. Making and possession of instruments or
implements for falsification. People vs. Silvano, 99 Phil 655
There are two acts here: The mayor is temporarily on leave. Instead of the vice-mayor,
it was the councilor who acted as acting mayor. Because he
represents himself as a mayor, he solemnized marriages, he
appointed policemen. The SC convicted him of usurpation of Any person who shall publicly and improperly make use of
authority and usurpation of official functions under Article insignia, uniforms or dress pertaining to an office not held by
177. such person or to a class of persons of which he is not a
member is penalized under this article. The crime is illegal use
Article 178. Using Fictitious Name of uniforms or insignia.
There are 2 crimes here: For example, wearing of military uniform or police uniform,
when you are not a military or a police, what is the crime
1. Using fictitious name
committed? Illegal use of uniforms or insignia.
Fictitious name: Any name other than the registered name.
How about when you wear the ―sotana‖ of the priest? Are you
For example, Mario is gay, he feels like a woman, acts like a liable? YES! Because uniform or dress you wear pertains to an
woman and thinks like a woman and so he changed his name office not held by you or to a class of persons of which you are
from Mario to Mary. Is he liable under Article 178 for using not a member.
fictitious name? No, because to be held liable under Article 178
Republic Act No. 75
for using fictitious name, it is necessary that the accused shall
publicly use a fictitious name for the purpose of concealing a This Act punishes the unauthorized wearing of any naval,
crime, evading the execution of a judgment or causing military, police or other official uniform, decoration or regalia
damage. of a foreign State or nearly resembling the same with intent to
deceive or mislead.
So if Mario, aside from being gay, used the name Mary in
order to hide his identity because he has committed a crime Executive Order No. 297
and he has been convicted, then he could be held liable for
using fictitious name under Article 178. Prohibits the illegal manufacture, sale, distribution and sale of
PNP uniforms, insignia and other outfits.
US vs To Lee Piu, 35 Phil 4
The SC convicted the accused for publicly using fictitious Articles 180, 181, 182, 183, & 184 STAR Provisions!!!
name. A Chinese national, instead of using his real name To
Lee Piu, in an application for passport, he used Toribio Jalijali. What do you mean by false testimony?
- What about if the accused is acquitted? Is the U.S. vsSoliman, 36 Phil. 5 -The accused was charged with
woman liable? estafa. When it was his turn to testify, he said that one of the
Yes. False testimony against the accused but evidence presented before him, an extrajudicial admission
penalty is lower. Paragraph 4 says the made before the police, was not true because he was allegedly
penalty of arresto mayor if the accused shall forced and threatened to make such admission. He imputed to
have been sentenced to a correctional the policemen a serious offense, that he was tortured by them
penalty or a fine or shall have been in order to admit the crime. The Supreme Court convicted him
acquitted. under Article 181.
- You‘ll notice that the penalty imposed on the false - In this case, the accused could only be convicted
witness depends upon the penalty imposed on the under this provision if aside from giving a false
accused. Because of that, it is a condition sine qua non testimony he imputes to some other person a
that the case of the accused should be terminated first commission of a grave offense. But if he merely
before the false witness shall be prosecuted for false denies his participation in the commission of the
testimony. It is a prerequisite. The accused cannot be crime charged, he should not be prosecuted under
prosecuted before the case filed against the accused this article.
against whom the false witness testified.
Art 182
- What about if the false witness testified in a civil
What about if the false testimony is favorable to the accused case? Liable?
but the testimony is false? He testified that the accused was Any person found guilty of false testimony
elsewhere when in fact the accused actually committed a in a civil case.
crime? What is the crime committed by the false witness? The penalty shall depend on the amount of
the controversy.
- False testimony favourable to the accused. - Art 182 is applicable only in civil cases. It does not
- Any person who shall give false testimony in favor of apply to special proceedings or administrative cases.
the accused shall suffer the penalties of arresto mayor
in its maximum period to prisioncorreccional in its What about if the witness falsely testified in that
minimum period a fine not to exceed 1,000 pesos, if administrative case or in a special proceeding?
the prosecution is for a felony punishable by an - Art 183. The crime is perjury. But it is still false
afflictive penalty, and the penalty of arresto mayor in testimony but such is given in an administrative case
any other case. or other proceedings other than criminal or civil
- Is there a need to terminate the accused first before proceedings.
the false witness be prosecuted?
No because the penalty here does not 2 ways of committing perjury:
differentiate whether the accused is
1. by making false testimony, under oath, other than in
convicted or acquitted because of the
criminal or civil cases;
testimony.
2. bymaking/executing a false affidavit.
- Suppose it is the accused himself who testified
falsely in favour of himself? Example:
Even the accused testifying in his favor
could be liable under this provision because - A woman testified in prosecutor‘s office that he was
the law does not distinguish. (if you will be raped when in fact she was not? The crime committed
strict with the letter of the law) is perjury.
But according to Justice Regalado, this - What about if the testimony is given in court? The
would be impractical or unrealistic for it crime committed is false testimony against the
would give the accused no other option but accused.
to plead guilty of the crime charged against
him otherwise he would have no other Elements of perjury:
defence at all.
1. That the accused made a statement under oath or
execute an affidavit upon a material matter
- Material matter – refers to the subject of the - So when you execute an Affidavit of Loss, is
case. Evidence which directly proves a fact it required by law or just a policy of the
(e.g. executing an affidavit alleging that you school? Policy only of the school.
were rape but it turned out to be false, is the - But if you file it with the Prosecutor‘s Office
affidavit material to the charge of rape? YES) it must be under oath because it is required
by law. It is provided in the criminal
2. That the statement was made before a competent procedure. It must be notarized by the Fiscal.
officer authorized to receive and administer an oath If Fiscal is not available, notary public.
- Who can notarize or are authorized to - Therefore, if you execute an affidavit
administer oath? claiming that you were raped and filed it
Notary public or an ex-officio before the Prosecutor‘s Office, and it was
notary public. made under oath, made with an officer
- Who is an ex-officio notary public? competent to administer oath, then you can
Those who can notarize by reason be held liable for perjury because all the
of their position such as the judges. elements are present; (1) you execute an
We can notarize affidavits but not affidavit on a material matter; (2) it was
deed of sale but only those in made before a competent officer; (3) the false
relation to our function. Mayors, statement was deliberately made; (4)and the
they can notarize but only those in execution of the affidavit is required by law.
relation to the performance of their Thus, you are liable for perjury.
functions. Police Officers in the
rank of Inspectors can notarize in People v Bansil (CA Case) - The accused was charged with
relation to performance of their immorality before the Civil Service because she committed
function. adultery. During the trial of the administrative case, before the
- So, examples: notary public, judges (notary accused could testify, she was asked about her personal
public ex officio), mayors, policemen (in circumstances. She falsely said that she is single when in fact
relation to the performance of their she is already married. She was charged criminally for perjury.
functions) Is she liable?
Look at the 4 elements of perjury.
3. That in that statement or affidavit, the accused made When she lied about her civil status, is it
a wilful and deliberate assertion of a falsehood; and material to the charge of immorality? It does
- wilful and deliberate assertion of a falsehood not matter. Her being married or single does
He knows that what he is stating not matter as long as she committed an illicit
under oath is false. sexual relationship. It was not material to the
Example: A claimed that she was charge. She was acquitted. The false
raped although she knew that she statement must be material to the case, must
was not raped. A made a wilful and refer to the material matter.
deliberate assertion of falsehood
because she knew that it was not Wilful and deliberate
the truth but still asserted the claim
- If the accused is in good faith, if the accused made a
as a fact.
false statement but in good faith, he cannot be made
When you lost your ID and you
liable for perjury.
executed an Affidavit of Loss when
- Good faith is a defence.
in fact you did not lose it. Liable?
Look at element 4.
Flordelis vs. Himalaloan July 31, 1978 - Accused filed an
answer in court and it is verified. It contained false statements.
4. That the sworn statement or affidavit containing the
Example, it was alleged in the complaint that he obtained a
falsity is required by law.
loan but in his answer, he denied. Is it not false? It is false. But
is he liable for perjury in in his verified answer? Remember
that verification as a rule is not required in a pleading. It is
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only required if it is required by law or rules of court. Answer stay away from an auction by threats, gifts, promises or any
need not be verified. If defendant submitted an answer and the other artifice with intent to cause the reduction of the price of
same is verified, verification is a surplusage. the thing auctioned.
July 3, 2016 There was a lampshade that was bid. There were two bidders.
One said that they will just settle it and give me P100 and the
Part 14
lampshade is yours. It is a violation under this article.
Offering False Testimony
In auction there is a time and place stated in the notice. One of
the bidders would tell the others that the auction is cancelled
The alleged rape victim executed an affidavit and filed a
or postponed. It is considered as an artifice. He is liable for
complaint before the prosecutor‘s office. After preliminary
machination in public auction.
investigation, a case was filed in court. During the trial the
alleged rape victim testified that it was not true that she was
Diaz vs. Capunan 45 Phil 482
raped by the accused. In reality it was another person. Is she
- Both bidders agreed that only one will bid
liable for Perjury making 2 contradicting statements?
ARTICLE 186. Monopolies and Combinations in Restraint of
- The mere fact that a person executed 2 contradictory Trade.
sworn statements is not enough to convict such
- prohibits monopoly
person - when there is competition, the price of an item is lower
- It is not sufficient basis
- if there is monopoly then only one company will
- Must prove which sworn statement is false
determine the price
US vs. Capistrano 40 Phil 902 1. Any person who shall enter into any contract or
agreement or shall take part in any conspiracy or
Subornation of perjury
- The act of securing a witness to falsely testify against combination in the form of a trust or otherwise, in
another restraint of trade or commerce or to prevent by
- The one securing the witness is liable as principal by artificial means free competition in the market;
inducement for perjury 2. Any person who shall monopolize any merchandise
or object of trade or commerce, or shall combine
ARTICLE 184. Offering False Testimony in Evidence with any other person or persons to monopolize and
- any person who knowingly offer a false witness or merchandise or object in order to alter the price
testimony in any judicial proceeding shall be guilty of
thereof by spreading false rumors or making use of
offering false testimony
any other article to restrain free competition in the
- convicted shall be imposed the penalty as in False
Testimony market;
3. Any person who, being a manufacturer, producer, or
Offender did not coach or induce the witness to falsely testify processor of any merchandise or object of commerce
- If he is the one who coached the witness then he is or an importer of any merchandise or object of
liable under Article 80, 81, or 82 as principal by commerce from any foreign country, either as
inducement principal or agent, wholesaler or retailer, shall
combine, conspire or agree in any manner with any
Offered in court is a falsified document
person likewise engaged in the manufacture,
- The crime committed is under Article 172 last
paragraph (Falsification of Private Document) production, processing, assembling or importation
of such merchandise or object of commerce or with
ARTICLE 185. Machinations in Public Auction any other persons not so similarly engaged for the
Cases in public auction: purpose of making transactions prejudicial to
1. Foreclosure of mortgage lawful commerce, or of increasing the market price
2. Collection of Sum of Money in any part of the Philippines, of any such
merchandise or object of commerce manufactured,
Purpose of public auction
produced, processed, assembled in or imported into
- To get the buyer who can offer the highest price
- Highest bidding price the Philippines, or of any article in the manufacture
of which such manufactured, produced, or imported
Any person who shall solicit any gift or promise as a merchandise or object of commerce is used.
consideration for refraining from taking part in any public
auction, and any person who shall attempt to cause bidders to Oil companies
- The only companies controlling the oil industry are - Established usage
Petron, Shell and Caltex. They were thought to settle
among themselves an agreed price. That is why small Elements:
oil companies were allowed to enter the industry such 1. The offender performs an act or acts
as Seaoil, Flying V and Phoenix to have free 2. Such act or acts are highly scandalous being offending
competition. against decency and good customs
- It is hard to prove combination. 3. The highly scandalous conduct is not expressly falling
within any other article of this Code.
If the item or object is affected by the combination would 4. The act or acts complained of be committed in a public
involve any food, substance, motor fuel or lubricants. place or within the public view
- Aggravating circumstance
Highly scandalous conduct that is against decency or good
If it is a corporation, it is the officers who knowingly permit or customs
failed to prevent monopoly or combination shall be held liable - Ex. Lovers have sexual intercourse in the movie house.
Although the movie house is a private place, it is still
US vs. Forgeras 4 Phil 432 scandalous because it is within public view.
- Accused made rumours to reduce prime commodities
or else there will be a flood. 2 piece in colon. That is highly scandalous. Offensive
- convicted of spreading false rumours to restrain free against decency
competition - If you do that in the beach it is alright
- It is an exempting circumstance
ARTICLE 187. Importation and Disposition of Falsely
- Punishable for any person who shall knowingly import If you go to the beach and go nude. It is now offensive against
or sell or dispose of any article or merchandise made decency and good custom.
of gold, silver, or other precious metals, or their
alloys, with stamps, brands, or marks which fail to In oblation, it is not a violation of Article 200. It is an exercise
indicate the actual fineness or quality of said metals of freedom of expression.
or alloys.
In the news, there was a drunken policeman in the inter-island
Under this article, there must be proper marking. Gold has a who got naked and kept passing the hallways. It is against
certain quality. It may be 24k, 18k, 14k, 10k. The actual fineness decency and good custom.
of the gold must be indicated.
In Bantayan, during Holy Week an artist was wearing a 2 piece
Example: in the streets. She was caught and charged but the case was
14k gold placed with only 8k then it is punishable. dismissed.
The same with diamonds
Exhibition in the parking area. The car is converted into a
ARTICLE 188 - 189 bedroom. The parking area in Ayala. The car was turned on
Repealed by RA8293 IPL and the guard looked inside. The guard looked inside the care
and saw something not meant to be seen. The fiscal dismissed
ARTICLE 190 -193 the case because the car was not in public view because it was
Repealed by RA 6425 then RA 9165 heavily tinted.
- Comprehensive Dangerous Drugs Act
Grave Scandal same as an impossible crime
TITLE VI – CRIMES AGAINST PUBLIC MORALS - Charged when the accused is not liable for any other
ARTICLE 195-199. Illegal Gambling crime in the RPC.
- repealed by PD 1602 amended by RA 9287 - Considered as a catch all provision
ARTICLE 200. Grave Scandal ARTICLE 201. Immoral Doctrines, Obscene Publications and
- Any person who shall offend against decency or good Exhibitions and Indecent Shows
customs by any highly scandalous conduct not - Affects right to free expression
2. (a) The authors of obscene literature, published with part in the performance of public functions in the
their knowledge in any form; the editors publishing Government of the Philippine Islands, or shall perform in
such literature; and the owners/operators of the said Government or in any of its branches public duties as an
establishment selling the same; employee, agent or subordinate official, of any rank or class,
(b) Those who, in theaters, fairs, cinematographs or shall be deemed to be a public officer.
any other place, exhibit, indecent or immoral plays,
scenes, acts or shows, whether live or in film, which - The definition is all embracing. It does not only refer
are prescribed by virtue hereof, shall include those to a high ranking government official.
which (1) glorify criminals or condone crimes; (2) - From president to the town councillors
serve no other purpose but to satisfy the market for - From the janitors to the highest appointed positions
violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of If you are a public officer and you commit an act or omission
prohibited drugs; and (5) are contrary to law, public which would constitute a crime and it is in relation in the
order, morals, and good customs, established performance of your duties, you will immediately be charged
policies, lawful orders, decrees and edicts; with 3 cases:
3. Those who shall sell, give away or exhibit films,
prints, engravings, sculpture or literature which are 1. Criminally
2. Civilly – if there is a victim
offensive to morals. (As amended by PD Nos. 960
3. Administratively – something to do with your job. So
and 969).
you can be suspended, or removed from position.
US vs. Kottinger 45 Phil 352 Crimes that can be committed by public officers:
- Determine when it will be considered obscene
1. Malfeasance – performance of some act which ought
Virula vs. Angeles Feb. 28, 2005
not to be done
- Obscene publication or literature
2. Masfeasance – improper performance of some act
- Accused gave obscene magazine/publication to
which might be lawfully done
another person
3. Nonfeasance – omission of an act which ought to be
done
ARTICLE 202. Vagrants and prostitutes
- Vagrancy has been decriminalized by RA 10158
204:Knowingly rendering unjust judgment
- 1- 4 has been repealed
- Par. 5 still valid (prostitution) Elements:
- Prostitution is a crime
1.
The offender is a judge
Prostitutes (par. 5). A women who, for money or profit, 2.
He renders a judgment in a case submitted to him for
habitually indulge in sexual intercourse or lascivious conduct, decision
are deemed to be prostitutes. 3. The judgment is unjust
- If a woman engages in sexual intercourse for money 4. The judge knows very well that his judgment is
but only once, is not considered as a prostitute. There unjust
must be habituality ―Judgment or decision is unjust‖
- If a woman engages in sexual intercourse frequently
- When the same is contrary to law or contrary to the
but not for money or profit then still not considered a
evidence presented
prostitute. - Decision of the court must always be based on facts
(evidence) presented during the trial or law – what did
Prostitutes under the Anti-Trafficking in Persons Act the witnesses say, what did the complainant say, what
- Prostitutes are considered as victims and not did the accused say
criminals - If the decision is not based on the facts or if the facts are
stated but the the law applied is wrong and he knows
TITLE VII – CRIMES COMMITTED BY PUBLIC OFFICERS that it is wrong then that is an unjust decision
ARTICLE 203. Who Are Public Officers - If it is:
1. Contrary to law; or
- Used in its generic sense. 2. Contrary to facts; or
Any person who, by direct provision of the law, popular 3. Both
election or appointment by competent authority, shall take
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Condition sine qua non: Declaration from higher court EX: Judge issues a TRO but the TRO issued is unjust
- An unjust decision can sometimes be subjective especially because it is not supported by the allegations in the
when the party loses complaint. Or the issuance is contrary to law.
- Before the judge will be convicted for knowingly - Just in case a court issues an interlocutory order which is
rendering unjust judgment there must be a declaration unjust so it is contrary to law or not supported by the
by the higher court that indeed the decision is unjust allegations in the complaint then the judge may be held
- Without this declaration, the judge cannot be prosecuted criminally liable and of course administratively liable
for knowingly rendering unjust judgment - Gross ignorance is a ground for dismissal
- How does the higher court declare?
o Through a petition for certiorari by the aggrieved Kinds of order
party; or
o Administrative case against the judge 1. Final order – when it finally disposes of the case.
There is nothing more to be done by the court.
Purpose for the manner of review EX: order of dismissal
2. Interlocutory order – there is something more to be
- Justices of the SC are also capable of making mistakes
done in the case by the court
- Judge being a human being will also be able to commit
EX: TRO
errors in the appreciation of facts and application of law
- But if the mistake is not malicious, without malice, not Source of unjust interlocutory order
intentional then he cannot be disciplined - Bribe – there are others which cannot be contented
- The judge can abuse his discretion. What law prohibits is EX: Binay case (rumor) – Mayor of Makati was
grave abuse. ordered suspended by the Office of the Ombudsman
but the CA issued a TRO and Trillanes accused or
Source of unjust judgment alleged that the justices who issued the TRO were
1. Bribe – there are others which cannot be contented paid.
2. Ill will
3. Error Condition sine qua non: Declaration from higher court
- Same rule with Art 204
CASE - Before the judge will be convicted for an unjust
- De Vera vsPelayo, July 6, 2000 interlocutory order there must be a declaration by the
higher court that indeed the decision is unjust
205: Judgment rendered through negligence - How could the aggrieved party declare a declaration?
o Through a petition for certiorari by the aggrieved
- Kind of misfeasance party; or
- The law to be applied is so basic but the judge fails to o Administrative case against the judge
apply the same
- Court renders unjust judgment but the same is rendered 207: Malicious delay in the administration of justice
without malice but with inexcusable negligence or gross
ignorance - Intentionally done
EX: Court convicted the accused of vagrancy without Reasons for delay in the administration of justice:
knowing that the same has been decriminalized so
inexcusable negligence or ignorance. 1. Heavy case load of courts
- The judge must keep himself updated with the decisions 2. Lack of judges
of the SC and the laws 3. Lack of lawyers – prosecutors, PAO lawyers
Condition sine qua non: Declaration from higher court
- Same rule with Art 204 Article 207. Malicious delay in the administration of justice.
- Before the judge will be convicted for rendering
judgment through inexcusable negligence or ignorance Elements:
there must be a declaration by the higher court that
indeed the decision is unjust 1. The offender is a judge
2. That there is a proceeding in his court
3. He delays the administration of justice
206: Knowingly rendering an unjust interlocutory order or 4. The delay is MALICIOUS- that is, the delay is caused
decree by the judge with deliberate intent to inflict damage
on either party in the case.
- Judge here issued an interlocutory order
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2. By revealing any of the secrets of his client learned by him So what’s the crime that (you) the policeman, agreed
in his professional capacity. of committing? Ans. Murder. What’s the reason why
the policeman would kill the robber? Because of the
- Take note of the Lawyer- client privilege under the Law on bribe. So the policeman, who is a public officer
Evidence. agrees to commit murder by reason of the bribe.
And the crime that he agreed to commit, which is
3. By undertaking the defense of the opposing party in the Murder has a relation to his duty as a policeman.
same case, without the consent of his first client, after So THE POLICEMAN IS LIABLE FOR
having undertaken the defense of said first client or after MURDER AND FOR DIRECT BRIBERY.
having received confidential information from said client.
- Take note that when the act agreed upon constitutes
Article 210 (5 STAR PROVISION). Direct Bribery
a crime, MERE PROMISE TO GIVE AND MERE
PROMISE ON THE PART OF THE PUBLIC OFFICER
Elements:
TO COMMIT THE CRIME CONSTITUTES DIRECT
1. The offender is a public officer
BRIBERY. Actual receipt of the bribe, and actual
2. He accepts an offer or a promise or receives a gift or
commission of the act agreed upon is not necessary.
present by himself or through another.
3. It was received in view of 2. By accepting a gift in consideration of the execution
a. Committing some crime of an act which does not constitute a crime, in
b. In consideration of the execution of an act connection with the performance of his official duty.
which does not constitute a crime, but the act
must be unjust or - Here the act does not constitute a crime, but is unjust.
c. To refrain from doing something which it is
his official duty to do so. - Example: The treasurer who in consideration of
money, awards certain stalls in the market to a
- So the purpose of giving a gift to the public officer is Chinese despite the fact that there are other Filipinos
for that public officer to perform some act, and that who have better right.- Here the act of the treasurer is
act must be in connection with the performance of his unjust but does not constitute a crime- Direct Bribery.
duty or duties as a public officer.
- Case: Direct bribery is committed when a police
- There must be an agreement to perform an act or to officer directly received the bribe money in exchange
refrain from performing an act which is his duty to for the recovery of stolen cylinder tanks, which was
do. an act not constituting a crime, and his act of
receiving money was connected with his duty as a
police officer. People vs Marifosque
FIRST FORM OF SECOND FORM OF persons who prosecutes or in charge of the prosecution of an
DIRECT BRIBERY DIRECT BRIBERY offender; a judge is not included in this article since the latter is
not entrusted with law enforcement
Gift or offer need not be The gift must be accepted
Note: Mere offer is sufficient
accepted by the public officer.
Mere promise is not Discussion:
sufficient.
What if the crime committed is not punishable of reclusion
perpetua to death? What is the crime committed by the officer
3. By agreeing to refrain or by refraining from doing who did not file the appropriate case or did not arrest the
something which it is his official duty to do, in offender? That would be violation of article 208, dereliction of
duty.
consideration of gift or promise.
Now bribery is one form of extortion, actually extortion is used
- Example: A sanitary inspector from the DOH or the in a generic or general sense. One form of extortion is direct
city health inspects a restaurant and found the same bribery, another form is robbery, another one is kidnapping for
to be unsanitary. The owner of the establishment gave ransom, all of which are forms of extortion.
the inspector a gift so he would not submit a report
There is no crime in the revised penal code which punishes
that may cause the closure of the establishment. The
extortion, since there are different forms, hence you should
inspector refrained from performing his duties. Here specify such as direct bribery, robbery etc2.
the public inspector is liable for Direct bribery.
Is committed when a public officer accepts a gift offered to him Same penalty imposed as that of the officer being corrupted.
by reason of his office
Now what is the liability of the one giving the bribe? Or one
For example you‘re a judge, you just celebrated your birthday, who offers the promise? He is liable for corruption of public
and a litigant gave you lechon as a birthday gift out of officers under this article.
generosity, you receive it, did you commit a crime? Yes, that is
What if the public officer did not accept the bribe? What‘s the
indirect bribery, that lechon is given by reason of your office.
crime committed by the giver? It‘s attempted corruption of a
Note: The gift given could be in anticipation of a favor; or it public officer, he can be arrested immediately.
could be a reward of past favors given in connection with the
Note: Now there‘s a law giving immunity for the giver of the
performance of duty.
bribe, he can be immune from suit provided he will testify
(take note of the distinctions between direct bribery from against the public officer, that is pursuant to PD 749; he is
indirect bribery; a frequent question in the BAR) exempt from prosecution.
Now one distinction would be that:
Art 213. Frauds against the public treasury and similar
Direct Bribery Indirect Bribery offenses.
2 crimes penalized:
There is an agreement Usually there is no such
Par 1 - Fraud against public treasury
between parties for the public agreement ―any public officer who: 1. In his official capacity, in dealing with
officer to perform or not to any person with regard to furnishing supplies, the making of
perform as the case may be contracts, or the adjustment or settlement of accounts relating to
public property or funds, shall enter into an agreement with any
interested party or speculator or make use of any other scheme, to
defraud the Government‖
Art. 211 – A. Qualified Bribery
Accused here enters into a contract or agreement with
Public officers entrusted with law enforcement, refrains from another person in order to defraud the government,
arresting/prosecuting an offender who committed a crime such as by overpricing supplies. The price on top of
with a penalty of reclusion perpetua to death in consideration the original price is then kept by the public officer.
of any offer/promise/gift; also includes public officers to
There is a special law related to this: RA 9134 Government This Article does not define any crime but merely imposes
Procurement Reform Act additional penalties for estafa when the accused is a public
officer with abuse of his position. So in addition to
Par 2 - Illegal exaction imprisonment, there shall be temporary/permanent special
―any public officer who: 2. Being entrusted with the collection disqualification.
of taxes, licenses, fees and other imposts, shall be guilty or any
of the following acts or omissions: This article applies only when there is abuse of position.
The officer here is in-charge of collection of taxes, Art. 215. Prohibited transaction
licenses or fees and other imposts.
Ex: cashier An appointive public officer here is prohibited from engaging
in commerce within his jurisdiction. He cannot engage in any
(a) Demanding, directly, or indirectly, the payment of sums transaction with exchange or speculation within his territory.
different from or larger than those authorized by law.
Example: Buying and selling of stocks listed in the stock
Ex: payable is 300php but you asked for 3000. exchange by an official of the SEC. He can only buy shares as
If payable is 1000php but you asked for 500php, that investment, but not buying AND selling of such shares.
is also illegal exaction because you are demanding an
amount different from that is set by law. So it could Case: Justice of the Peace was convicted because he took part
be a larger or lesser amount. in the execution sale. (Gantingco vs Pabuingit 35 Phil 81)
Q: What is the crime committed if the amount Art. 216. Position of Prohibited Interest by a Public Officer
payable is 500php and you asked for 1000php and
you used the whole amount for personal use? ―a public officer who directly or indirectly, shall become interested in
A: 2 crimes - Illegal Exaction because you demanded any contract or business in which it is his official duty to intervene.‖
an amount different from what is set by law, and This is a crime committed by a Mayor who entered
Malversationbecause you spent the money for your into a contract of lease over a parcel of land owned by
personal use. You may ask why the additional a municipality wherein he is the mayor. So there is a
500php you got is still under malversation? It is conflict of interest. (US vs Udarbe 28 Phil 382)
because that additional amount forms part of public
funds. ―applicable to experts, arbitrators and private accountants who, in
like manner, shall take part in any contract or transaction connected
Regalado said 3 crimes are committed: Illegal with the estate or property in appraisal, distribution or adjudication
Exaction, Malversation (with regards to the amount of which they shall have acted, and to the guardians and executors
set by law), Estafa (additional amount) with respect to the property belonging to their wards or estate.‖
Reyes and Gregorio said there are only 2 crimes: An administrator is not allowed to buy the estate or
Illegal Exaction and Malversation. They are the property that you are administrating. Same goes with
experts in Criminal Law. a guardian over the property of his ward.
(b) Failing voluntarily to issue a receipt, as provided by law, Art 217. Malversationof public funds or property;
for any sum of money collected by him officially. Presumption of malversation.
Self–explanatory. Take note of the word
VOLUNTARILY, because it may be that they just ran 5 STAR PROVISION!
out of receipts. No more supply. Sometimes you are
given a temporary receipt. Who are liable?
(c) Collecting or receiving, directly or indirectly, by way of - Public officers who are also considered ACCOUNTABLE
payment or otherwise things or objects of a nature different OFFICERS. He or she must be a CUSTODIAN of public funds
from that provided by law. or properties.
- ex: cashier, treasurer
So instead of receiving money as payment, you ask
for material things. That is still a form of illegal ** So, not all public officers may be liable for malversation.
exaction. Only those stated above.
―shall appropriate the same or shall take or misappropriate or shall Is demand to pay or to produce the public property an
consent, through abandonment or negligence, shall permit any other indispensable requirement before the accountable public officer be
person to take such public funds, or property, wholly or partially, or held liable for malversation? No. Demand is not an
shall otherwise be guilty of the misappropriation or malversation of
indispensable requirement. But although, not a requirement,
such funds or property‖
there is usually a demand.
Ex:
1. A, a cashier who has the duty to receive real estate tax Demand merely raises a prima facie presumption that the
lent money to her son who needed to enroll for missing funds have been put to personal use. Whenever
school. – Malversation! there is a demand made such as by the COA, but the public
officer, who is the custodian, failed to produce the amount or
2. A, cashier who has the duty to receive real estate tax
allowed his friend to borrow the money A had the property under his custody, the same shall be considered
custody of because A pitied her friend. Is that as a prima facie evidence of malversation. You are presumed
malversation? to have committed malversation.
- Yes. Malversation is committed not only by
misappropriating of the money by the custodian, but Republic vs Sandiganbayan, July 15, 2003;
also by consenting another to use or misuse the funds
under one‘s custody.
The constitutionality of this provision has been challenged
3. A, cashier had to rush out of the office to fetch her son because under the Constitution, you have learned that a
from school and so she was not able to put the money person is presumed innocent until proven guilty. So, is it not
under her custody in the vault, and merely placed the a violation of the provision of the Constitution which provides for
money inside the drawer of her desk. Later, the the presumption of innocence of the accused. According to the
janitor saw the money and got them all. What is the
SC, it does not violate the constitutional presumption of
crime committed by A?
- Malversation because of her negligence. innocence. What is established here is not presumption of
- So Malversation could be committed by mere innocence but the presumption of guilt, because the accused
negligence too. The penalty here is the same with a is presumed to have malversed, to have misused funds for
situation wherein the public officer used the his personal use. According to the SC, it is within the power
money/property for his personal use. of the Congress to enact such law. And besides, what is
established is merely a rebuttable presumption. The accused
TN: Malversation covers both PUBLIC FUNDS and PUBLIC
could still present evidence to overthrow such presumption
PROPERTY.
and if successful, he will not be convicted.
Ex: A custodian of ballpens and papers, brought home some
paper for her children – That is Malversation of PUBLIC Bacaslot vs Sandiganbayan, November 5, 1987
PROPERTY.
According to the SC, the legislature may provide for a prima
If you are not an accountable officer or custodian, then you
may be liable of THEFT. facie evidence of guilt provided there be a rational
connection between the facts proved and the ultimate facts
presumed.
Take Note: Malversation can only be committed by a public
officer who is at the same time the custodian of the money or What do you mean by Accountable Officer?
property.
It does not refer only to the cashier, disbursing officer or
Another term for Malversation is Embezzlement. property custodian. Could be any person who has the
custody of public funds or property and who is accountable
Last par. Article 217: ―The failure of a public officer to have duly thereto.
forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be If the accumulated ill-gotten wealth in the crimes of
prima facie evidence that he has put such missing funds or property Malversation, Direct Bribery, Indirect Bribery or Qualified
to personal use.‖ (As amended by RA 1060). Bribery would amount to P50 Million, the crime is – Plunder.
Are there instances that private funds be the subject of There could be a complex crime of Malversation through
Malversation? Yes. If those private funds are considered ―trust Falsification of Public Documents. If falsification is
funds‖, such as payment collected by a public school teacher committed to misuse the amount.
of employee for the BSP, GSP, or Red Cross (these are private
entities). If Malversation is committed first, there are two crimes
committed.
But if the person collecting the amount is a private school
teacher or employee, the crime is not Malversation. Art. 218. Failure of accountable officer to render accounts
Postal money orders. It may also be the subject of Any public officer, whether in the service or separated therefrom by
Malversation if the same is misappropriated by the postman. resignation or any other cause, who is required by law or
regulation to render account to the Insular Auditor, or to a
Money received by the sheriff as redemption price may also provincial auditor and who fails to do so for a period of two months
be the subject of Malversation because it partakes of the after such accounts should be rendered.
nature of public funds.
What about private property? May it also be the subject of Art 218
Malversation? Yes. If the private property, for example, is
confiscated from a private person by a law enforcer. - Failure of accountable officer to render accounts
before he is separated from service or before he is
For example, during a checkpoint the police confiscated an allowed to resign.
unlicensed firearm, but did not report the same so he can use - Mere failure, consummates the crime. Malversation is
it for his own benefit, the crime is Malversation. not necessary. Mere failure to render an account after
required to do so.
What about using government cars for family outing. That could
Art 219
be Malversation.
- Failure of a responsible public officer to render
For example, the cashier, with intent to use the money in her accounts before leaving the country
custody, rode a jeepney going to school to pay the tuition of - The accountable officer leaves the country or attempts
her son. However, while boarding a jeep, somebody declared to go abroad without securing clearance from
―hold-up‖ and took the money. Is she liable for Malversation?
Commission on Audit.
Yes. Malversation has the same concept as that of Theft. As
long as the accused has complete control over the item taken, Art 220
the crime is consummated.
- This is technical malversationor illegal use of public
What if the public officer immediately reimbursed the mount, is he funds or juggling of funds.
liable? Yes. The return of the funds malversed is merely - The public officer here commits technical
mitigating. malversation when he would use public funds or
property to any other purpose other than that
However, in the case of US vs Feliciano, 15 Phil 147, the SC authorized by law or ordinance.
acquitted the accused - Example: The city counsel appropriated 50M for the
construction of gymnasium in certain barangays.
Then the incoming Mayor, who does not belong to
If at the very moment when the shortage was discovered and
the same party of the preceding Mayor, converted the
the treasurer was notified he at once presented the money,
50M for the construction of public schools. Liable?
no prima facie evidence of the crime of misappropriation can
Yes. He could be liable for technical
be established nor any proof whatever that there was such
malversation if he will realign the budget
misappropriation.
without any authority from the counsel. The
money should be used in that particular
purpose. Liable even if the purpose is still 2. when he conspires with the public officer
for public use. 3. when he is an accessory or accomplice in
Look at the case of People vsYsidoro, Nov malversation
14, 2012.
Infidelity of Public Officers
Art 221.
Article 223
- Failure to make delivery of public funds or property
- An accountable officer fails to make payment from - conniving with or consenting to evasion
government funds in his possession. The failure to - the crime is infidelity in the custody of prisoner
make payment must be with malice. - The conniving with or consenting to evasion is just a
- 2ndpara: any public officer ordered by competent mode for the crime of infidelity in the custody of the
authority to deliver any property in his custody or prisoner.
under his administration refuse to make such - In order to be held liable, the public officer must be
delivery. The refusal must also be with malice. the one in custody of the prisoner at the time he
committed the crime/when the prisoner escaped
- If he is a custodian and on duty and if If he connives
with the escaping prisoner, he is liable under Art 223.
Art 222
- If he is not a custodian, or he is off duty at the time of
- This is an exception to the rule. We learned that the escape and he connives with the escaping prisoner, he
ones convicted are public officers only. A private could be held liable for delivering prisoner from jail
person can be convicted of malversation even if he is underArt 156.
- What about the escaping prisoner? What could be his
not in conspiracy with a public officer. When?
liability?
The provisions of this chapter shall apply to
private individuals who in any capacity have If he is a convicted prisoner, then he is liable
charge of any insular, provincial, municipal for evasion of service of sentence.
funds, revenues, or property and to any If he is a detention prisoner, the liability of
administrator or depository of funds or the jail guard is just the same. The prisoner
property attached, seized or deposited by who escaped could be convicted. The
public authority, even if such property penalty is however lower.
belongs to a private individual. - If the police officer arrested in a buy bust and while
on the way to the police station, there was a
Here, the private property is placed under
the custody of a public officer. negotiation, he will be allowed to escape, what is the
liability of the police man as regards the escape of the
Example: a car subject to an attachment and
arrested person?
placed under the custody of the court. If the
sheriff uses the car to fetch his children in To be held liable under Art 223, the escaping
school, he could be held liable for prisoner must have already been arrested
and charged with the crime. If not yet
malversation.
charged, art 223 is not violated. But it does
AzarconvsSandiganbayan, 268 SCRA 747
not mean that the arresting officer have no
Repeat: liability. He could be held liable for another
crime.
- In what instances are private individuals held liable - But suppose the prisoner was ordered to buy fish in
for malversation? the market and did not go back to the prison jail?
1. private individuals who in any capacity have What is the liability of the police?
charge of any insular, provincial, municipal Relaxation of imprisonment if considered
funds, revenues, or property and to any infidelity.
administrator or depository of funds or Example: the prisoner was ordered to clean
property attached, seized or deposited by the house of the police officer, or asked to
public authority, even if such property cook food for lunch.
belongs to a private individual; or
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are not sent to the addressee – liable for 228 Opening of closed documents
infidelity in the custody of documents
o Has a postal money order (postal money order - Crime would still be infidelity in the custody of
is similar to a check) and the postman would documents but the document here is closed but not
sign or falsify the signature and encash the sealed
same – liable for malversation and falsification.
o Spends the postal money order – liable for 1) 229 Revelation of secrets by an officer
malversation and falsification, 2) qualified theft - The officer here or the secret here that is revealed is not a
(committed when what is taken away is a mail state secret or a secret which has nothing to do with our
matter), 3) infidelity in the custody of national defense
documents if he did not falsify - If the secret that is being revealed is a state secret then the
EX: In a buy bust operation there is money involved crime is espionage
there. Suppose the money used as buy-bust money is EX: A police officer revealed or told the accused that he
presented in court as evidence and thereafter entrusted in has a pending warrant of arrest so the accused ran away.
the custody of the Clerk of Court. Suppose the Clerk of Supposed to be the existence of the warrant of arrest
Court would spend the money would spend the money, should not be revealed and must be kept secret from the
was is the crime committed? concerned accused. If that is revealed then the police
officer would be held liable under Art 229.
The crime committed is infidelity on the custody of
documents because money bills exhibited in court, 230 Public officer revealing secrets of private individuals
according to the SC are considered papers or - The private individual here confided his secret to such
documents. public officer by reason of his office but such pubic officer
- CASE: Ppvs Abraham, February 17, 1922 revealed such secret to other person
o A deputy Clerk of Court who having received in his EX of public officer: a guidance counselor of a pubic
official capacity several paper money as exhibits in a
school – students confide in him about their problem
case afterward took away the said money is guilty
of infidelity in the custody of documents. which should be kept secret by him
o What about if the case has already been decided? EX: lawyer – Art 209
According to Justice Regalado, if the case has
already been terminated and the Clerk of Court, the 231 Open disobedience
custodian of the bills would misappropriate the - The accused here is a public officer in the judicial or
money used as evidence the crime would be executive branch and he refused to execute the judgment,
malversation. Not anymore infidelity in the custody decision or order of his superior
of documents. EX: The newly-elected mayor ordered the municipal
- Damage caused to a third party is not required. So even if secretary to give to the mayor the keys to the door of the
there is no damage caused to third parties then the crime
municipal building but the municipal secretary refused to
is still infidelity in the custody of documents.
- Committed when there is damage caused to public do so. This can be considered open disobedience.
interest EX: A lower court judge refused to comply with the order
227 Officer breaking seal of a higher court. That would not only warrant
disciplinary action but it can be a ground for criminal
- Crime would still be infidelity in the custody of action under Art 231.
documents
EX: When the ballot boxes deposited with the treasurer‘s
232 Disobedience to order of superior officer, when said
office are broken or the treasurers office allowed them to
order was suspended by inferior officer
be broken then the treasurer could be held liable under
- The accused or offender is a subordinate and the superior
Art 227. issues an order but the subordinate suspended its
o Ballot boxes that have 3 locks and it also has a execution. When the superior learned about the
seal. suspension or non-compliance with his order, the
EX: the election returns are placed in a sealed envelope. If superior orders the subordinate to comply but the
they are destroyed or the seal is broken or the document subordinate still refuses to comply with the order. It does
is opened that is infidelity in the custody of documents not warrant an administrative charge, insubordination
punishable under Art 227. but it may also warrant the filing of the criminal charge,
for violation of Art 232.
- Elements:
1. The offender is a public officer
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2. That an order is issued by his superior for execution same time they are required to take photos or pictures on
3. The he has for any reason suspended the execution the items confiscated in the presence of the accused and
of such order any elected public officials (e.g. barangay councilor,
4. Superior disapproved of the suspension of the
barangay captain).
execution
If the barangay captain or barangay councilor would
5. Offender continues to disobey his superior despite
the disapproval of the suspension not go since he is still playing mahjong then he could be
charged under Art 233 for refusing to render assistance. It
233 Refusal of assistance would cause damage because without his presence, the
confiscated items presented in court, as evidence may not
- Public officer is requested to assist him, or to render his be admitted for failure to comply with such requirement
assistance towards the administration of justice or public
under Sec 21. If admitted, it will not be given evidentiary
service but such request is refused or that the public
officer who is requested to lend his cooperation refused value and it may result to the acquittal of the accused. It
or failed to comply with such request and such failure is without prejudice to possible administrative action.
results in serious damage to public interest or third party
EX: The Office of the Ombudsman is very popular. They 234 Refusal to discharge elective office
can investigate even if it is based on news report or
- Obsolete provisionbecause today many people want to
rumors. They do not require a complaint from people. If
serve
their officer personally gets to read the news that a public
officer commits malfeasance or misfeasance or Art. 234 Refusal to discharge elective office
nonfeasance they can immediately initiate an action
against a public officer. If they are not experts on a certain (According to judge this provision is obsolete because everybody now
topic, they can request assistance from any government wants to serve the public. But just study this for the Bar.)
agency.
Elements:
If the crime involves malversation then they can
request from COA auditors to be sent and to conduct
1. That the offender is elected by popular election to a
audit on a certain office. If the request of the Office of the
public office
Ombudsman is ignored by the officer of the COA to
2. That he refuses to be sworn in or to discharge the
which it is addressed, the officer concerned can be held
duties of said office
liable under Art 233, refusal of assistance.
3. That there is no legal motive for such refusal to be
EX: When there is a case filed a prosecutor sends a
sworn in or to discharge the duties of said office.
subpoena to a party so that the respondent can answer to
any case filed against them. The problem there is if the But there is an issue now relating to this. Mark Villar has been
respondent lives in a far away place, how will the elected as Congressman of Las Pinas. He was also appointed as
subpoena be served?Sometimesthe Prosecutor‘s office Secretary of DPWH, I‘m not sure if he took oath. Now he
request assistance from the police. So the subpoena will refuses to be sworn in as Congressman. Probably he‘ll use
be sent to the Chief of Police then they request that it will absence of the element of ―no legal motive for such refusal‖.
be served to the respondent. Suppose the Chief of Police
will not comply, the Chief of Police could be held liable Art. 235 Maltreatment of prisoners
for refusal of assistance.
- CASE:US vs Castro, March 16, 1923 - The penalty of prision correccional in its medium
When a Chief of Police failed to serve a subpoena upon period to prision mayor in its minimum period, in
the request of the Prosecutors was found liable under Art addition to his liability for the physical injuries or
233. damage caused shall be imposed.
- CASE:
A government employee was requested to testify in court Elements:
as a prosecution witness but that government employee
1. That the offender is a public officer or employee
refused to testify He was found liable under this article. 2. That he has under his charge a prisoner or detention
EX: Under Section 21 of RA 9165, if the law enforcers prisoner
confiscate in a checkpoint drug paraphernalia or drugs 3. That he maltreats such prisoner in either of the
then they are required to conduct inventory and at the following manners:
a. By overdoing himself in the correction or Q: What shall a public officer do, either appointive or elective,
handling of a prisoner or detention prisoner before discharging his office?
under his charge either: A: He has to take oath.
- The executive or the judicial officers. Art. 243 Orders or requests by executive officers to any judicial
authority.
Art. 240 Usurpation of executive functions
Elements:
Elements:
1. The offender is an executive officer
1. The offender is a judge 2. That he addresses any order or suggestion to any
2. That he judicial authority
a. Assumes a power pertaining to the executive 3. That the order or suggestion relates to any case or
authorities or business coming within the exclusive jurisdiction of
b. Obstructs the executive authorities in the lawful the courts of justice.
exercise of their powers
Note that these crimes (Articles 239- 243) pertain to the separation of
Art. 241Usurpation of judicial functions powers.
3. That such person lacks the legal qualifications - Or if such public officer doesn‘t render decisions or
therefor orders, he is required to submit a report to or consult with
4. That the offender knows that his nominee or appointee a superior officer for recommendations.
lacks the qualifications at the time he made the
OFFENDED PARTY:
nomination or appointment.
OFFENDER: Terms:
- Probably the offender is a high- ranking official because he ―Government‖ here includes the national govt/ local/
can make decisions or orders. Examples are: GOCC/ and all other instrumentalities
A judge or
prosecutor- because he makes resolutions; or ―Public Officer‖ includes all elective and appointive officials
regional director- because he renders decisions in employees whether permanent or temporary or whether
administrative cases. classified or unclassified receiving compensation even nominal
from the government as defined in the preceding sub There is a case, a fiscal held a preliminary investigation and
paragraph. asked for money in return for a favorable resolution, now he is
charged under this paragraph, now the Supreme Court
―Receiving any gift‖ includes the act of accepting directly or acquitted him, why? Because a preliminary investigation
indirectly from a person other than a member of the public conducted by a fiscal is not considered as a contract or
officer‘s immediate family in behalf of himself or of any transaction as to bring it under this paragraph. However such
member of his family or relative within the 4th civil degree act falls squarely under direct bribery punishable under the
either by consanguinity or affinity even on occasion of family RPC.
celebration or national festivity; If the value of the gift under
the circumstances is manifestly excessive. In People vs Peligrino 415 PHIL 94, BIR examiner here was
assigned to examine the tax liabilities of a doctor, now the
Corrupt Practices: doctor has a tax liability more than P500,000, he was told by
the examiner that it can be lessen to P200,000 but requested
(a) Persuading/inducing or influencing another public
that the receipt would only reflect P51,858.57. The examiner
officer to perform an act constituting a violation of
was entrapped and is liable under this paragraph.
rules and regulations duly promulgated by
competent authority or an offense in connection with (c) Directly/indirectly requesting/receiving any
the official duties of the latter or allow himself to be gift/present or other pecuniary/material for himself
persuaded/induced or influenced to commit such or for another, from any person for whom the public
violation or offense. officer or in any manner or capacity has secured or
obtained or will secure/obtain any govt.
Notes:
permit/license in consideration for the help given or
Under this paragraph, there are 2 public officers involved here; to be given without prejudice to section 13 of this act.
this can‘t be committed by 1 only; 1 public officer is inducing
Notes:
another public officer to perform/commit an act in violation of
an existing rules/laws and the other officer who is being Tecson vs Sandiganbayan, now in this case, the mayor here is
induced, allowed himself to be induced/persuaded to commit asking and has receive 4,000 pesos in exchange for the issuance
such violation or offense. for a business permit for an upcoming fiesta. He is charged for
violation under this paragraph, liable? Ofcourse.
For example the mayor would tell the members of the bids and
awards committee not to make bidding on a certain project of July 8, 2016
the municipality; by inducing/persuading the members not to Part 16
conduct any bidding is a violation of existing laws/rules since
every public project should always undergo public bidding. Continuation of RA 3019
(b) Directly/indirectly requesting or receiving any (d) Accepting or having any member of his family accept employment
gift/benefit/present/share/percentage for himself or in a private enterprise which has pending official business with him
during the pendency thereof or within one year after its termination.
for any other person in connection with any contract
or transaction between the govt. and any other party Persons liable:
wherein the public officer in his official capacity has 1. Public officer
to intervene under the law 2. Any member of his family
- ex: A public officer‘s son accepts employment in a
Notes: private enterprise which has pending official business
with the public officer
Public officer here is a high ranking officer since such officer
represents in behalf of the govt. as to any transaction or Is employment with the private enterprise which has
contract for the government. transaction with the public officer totally prohibited?
No. The prohibition is only during the pendency of
There is liability if you ask for a share/gift or even if you did the business or within 1 year after its termination
-ex: A cement factory secures an environmental
not request but you received something. At the same time, the
compliance cert. with the DENR and the child of the
public officer could also be held liable for direct bribery. Regional Director (RD) of the DENRis allowed to be
employed with that cement factory – here the RD has Alviso v. Sandiganbayan 406 SCRA 311 – a very huge case
committed a violation of par. D - ―Multi-million Highway Scandal‖
- This involved officials of DPWH. They made reports that the
(e) Causing any undue injury to any party, including the roads of Cebu were being cemented, when in fact there weren‘t
Government, or giving any private party any unwarranted benefits, any projects. The violation was committed in conspiracy with
advantage or preference in the discharge of his official administrative COA auditors. Read more on this…
or judicial functions through manifest partiality, evident bad faith or - This caused undue injury to the government thru evident bad
gross inexcusable negligence. This provision shall apply to officers faith
and employees of offices or government corporations charged with the
grant of licenses or permits or other concessions. Q: What is the crime committed by the public officer when he
One of the commonly violated provisions in this law! paid the contractor of the town market almost 100% of the
So take note of this!! contract price when in fact the construction of the market was
only 36% finished. Was there undue injury? Did the
Prohibited acts: government suffer pecuniary damage? Actual damage?
1. Causing undue injury to any party including the - Yes. Undue injury to the government thru evident bad faith
government and manifest partiality.Biased in favor of the contractor. So the
Undue Injury – synonymous to actual 3 modes may be combined in just 1 complaint. (Kibal v.
damages Sandiganbayan 244 SCRA 224)
3 modes of causing Undue Injury TN! The victim here could be a private party.
1. Thru manifest partiality – biased; in Ex: DENR officials issued free patent titles to certain
favor of one party which excited a individuals when in fact the lands are already titled in the
disposition to see and report matters as names of other persons. – there was undue injury to a private
they are wished for rather than as they party.
are
2. Thru evident bad faith – dishonest Ex: A ship full of smuggled rice was allowed by the customs to
purpose sail out of the country. Undue injury?
3. Thru gross inexcusable negligence – - Yes! Thru manifest partiality in favor of the owner of the
notice the double adjectives; lack of cargo; and evident bad faith because of your fraudulent
slight care (―palabihangkadanghag‖) purpose.
- if in the same case, the customs officer was not able to notice
2. By giving any private party (excluding the the ship to sail because he slept while on duty? Then that‘s
government) any unwarranted benefits, advantage or gross inexcusable negligence. (Kadakoanangbarko!)
preference in the discharge of his official,
administrative or judicial functions. (f) Neglecting or refusing, after due demand or request, without
Modes of Giving Unwarranted Benefits/Advantage sufficient justification, to act within a reasonable time on any matter
1. Manifest partiality pending before him for the purpose of obtaining, directly or
2. Evident bad faith indirectly, from any person interested in the matter some pecuniary
3. Gross inexcusable negligence or material benefit or advantage, or for the purpose of favoring his
(same as Undue Injury) own interest or giving undue advantage in favor of or discriminating
against any other interested party.
Q: What is the crime committed when the city engineer uses
the backhoe of the city government for personal use?
- if he is the accountable officer, it‘s MALVERSATION Prohibited acts:
- if he is not the accountable officer, he violates par. e. 1. Public officer refused or neglected a request or
particularly causing undue injury to the government thru demand without justifiable cause
evident bad faith (Amper vs Sandiganbayan 279 SCRA 434) 2. Failed to act within reasonable time on any matter
Why undue injury? pending before him after due demand or request
- because if you would‘ve allowed the backhoe to be
rented, the government would have earned from it. Q: The judge refused to rule on a motion to put up a
supersedeas bond because he wanted to have a share from that
Q: If you are working in the DPWH, and there is road supersedeas bond. What is the crime?
construction which needs an acquisition of right of way of a - Par f! For what purpose?TN that there must be a reason for
certain lot. If you overprice the lot, is there undue injury to the neglecting/refusing to act on that matter. So here, it is for the
government? reason of obtaining directly/indirectly some pecuniary benefit
- Yes. Thru evident bad faith. (Mijorada v Sandiganbayan 151 or advantage. (Veracruz v. Sandiganbayan 269 SCRA 52)
SCRA 399)
Possible purposes under this paragraph:
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1. obtaining, directly or indirectly, from any person prohibited by the Constitution or by any law from having any
interested in the matter some pecuniary or material interest.
benefit or advantage There is conflict of interest here.
2. for the purpose of favoring his own interest or giving Ex: Mayor enters into a contract of lease and the lot is
undue advantage in favor of an interested party owned by the city and the Mayor was the one who
3. discriminating against any other interested party. rented. - So here the Mayor has pecuniary interest in
the contract.
(g) Entering, on behalf of the Government, into any contract or ―in which he is prohibited by the Constitution or by any
transaction manifestly and grossly disadvantageous to the same, law from having any interest.‖
whether or not the public officer profited or will profit thereby. - remember in the Constitution where members of
Another commonly violated paragraph congress, Pres, VP, Cabinet Members are prohibited
Public officer here is a high-ranking public official to enter into certain transactions. – if they violate this,
because he enters into contract in the name of the they could be charged.
government (RD of an office, head of LGU – Gov, Case: A mayor built a cockpit (buwangan) thru
Mayor) another perso (a dummy), in his own town where he
Instead of protecting the interest of the government, is the mayor. Under the LGC, a mayor is prohibited to
he enters into the contract which is grossly and have financial interest in a cockpit in his own town. –
manifestly disadvantageous to the government charged with par h of RA 3019 (Teves v SGB
(Mere entering in to the disadvantageous contract is 12/17/04)
not a violation)
- ex: Mayor enters into a contract of sale over cargo (i) Directly or indirectly becoming interested, for personal gain, or
trucks, the price of which is equivalent to brand new having a material interest in any transaction or act requiring the
ones but what were delivered were 2nd hand cargo approval of a board, panel or group of which he is a member, and
trucks. – the contract here is GROSSLY which exercises discretion in such approval, even if he votes against
DISADVANTAGEOUS. the same or does not participate in the action of the board, committee,
- ex: A lamppost which costs 16k but in the deed of panel or group.
sale the price of each lamppost is 110k. – GROSSLY
DISADVANTAGEOUS Interest for personal gain shall be presumed against those public
officers responsible for the approval of manifestly unlawful,
TN: inequitable, or irregular transaction or acts by the board, panel or
Mere entering constitutes the crime already. If the group to which they belong.
officer merely recommended, then he is not liable. It Public officer here is a member of a board, group or
is the officer who entered is the one liable. panel. (ex: provincial board, sangguniangbayan, city
Validity of the contract need not be proved council)
How violated? There is a transaction which requires
Read: Luciano v Estrella 34 SCRA 769 the approval of the board, group or panel in which he
is a member. But at the same time, he is interested in
Arias v SGB 80 SCRA 309: The usual defense of the public that transaction.
officers is that they just relied on their subordinates, and did There is a conflict of interest
not read each page of the document you signed. SC said all Violation is committed even if he voted against the
heads of office have to rely to a reasonable extent on their approval of the contract/ even he does not
subordinates and on the good faith of those who prepare participate in the action of the board. So your
deeds, or those who enter into negotiations. There are remedy here if you are a member is you resign.
hundreds of documents, vouchers that pass thru a public
(j) Knowingly approving or granting any license, permit, privilege or
officer‘s hands. In otherwords, the officer can raise GOOD
benefit in favor of any person not qualified for or not legally entitled
FAITH unless there is a clear case of conspiracy of reckless
to such license, permit, privilege or advantage, or of a mere
imprudence on his part.
representative or dummy of one who is not so qualified or entitled.
Public officer here grants a license, permit, privilege
- this defense was also raised in Alviso v SGB. But the SC said
to one who is not qualified.
it is inapplicable when the accused were knowing
Ex: RD of the LTFRB grants a franchise to operate a
participants in the conspiracy considering that in spite the
taxi to a foreigner. (this is prohibited under the law) –
patent irregularities in the documents presented to them,
they still affixed their signature thereto. so the RD violated par. j.
Public officer here acquired confidential information Section 6. Prohibition on Members of Congress. It shall be
and released without authorization. unlawful hereafter for any Member of the Congress during
Ex: You are the stenographer in court and when you the term for which he has been elected, to acquire or receive
went out, the medial asked you about the decision of any personal pecuniary interest in any specific business
the judge. You told the media. – You could be held enterprise which will be directly and particularly favored or
liable for violation of Anti-Graft, aside from possible benefited by any law or resolution authored by him
administrative charge previously approved or adopted by the Congress during the
TN that this law does not only deal with funds or same term.
money but also of abuse of function
The provision of this section shall apply to any other public
A Private person in conspiracy with a public officer could be officer who recommended the initiation in Congress of the
charged with a violation of Anti-Graft. enactment or adoption of any law or resolution, and acquires
or receives any such interest during his incumbency.
Section 4. Prohibition on private individuals. (a) It shall be unlawful
for any person having family or close personal relation with any It shall likewise be unlawful for such member of Congress or
public official to capitalize or exploit or take advantage of such family other public officer, who, having such interest prior to the
or close personal relation by directly or indirectly requesting or approval of such law or resolution authored or recommended
receiving any present, gift or material or pecuniary advantage from by him, continues for thirty days after such approval to
any other person having some business, transaction, application, retain such interest.
request or contract with the government, in which such public official
has to intervene. Family relation shall include the spouse or relatives
by consanguinity or affinity in the third civil degree. The word "close - He must not have received any pecuniary interest in
personal relation" shall include close personal friendship, social and any specific business enterprise which will directly
fraternal connections, and professional employment all giving rise to and particularly favored by any law or resolution
intimacy which assures free access to such public officer. offered by him.
This is what you call ―influence peddling‖ - The RH Law, manufacturers of condoms and pills
Close personal relation – social and fraternal will be benefited by the law. The government will
connections and professional employment allocate funds for population control. A congressman
,who is a principal author and is given funds by the
(b) It shall be unlawful for any person knowingly to induce or cause such manufacturing companies, will be in violation if
any public official to commit any of the offenses defined in Section 3 this section.
hereof.
Again, the private person can be charged together Section 7. Statement of assets and liabilities. SALN
with a public officer - Statements of Assets, Liabilities and Net worth (SALN)
- Every public officer
Section 5. Prohibition on certain relatives. It shall be unlawful for - Times to file SALN
the spouse or for any relative, by consanguinity or affinity, within 1. Within thirty of assumption of office
the third civil degree, of the President of the Philippines, the Vice- 2. Every April 30
President of the Philippines, the President of the Senate, or the 3. Upon resignation or separation
Speaker of the House of Representatives, to intervene, directly or - This would determine whether you acquired
indirectly, in any business, transaction, contract or unexplained wealth
application with the Government: Provided, That this section o If you are unable to explain the acquisition of
shall not apply to any person who, prior to the assumption of office of luxurious properties then you are liable.
any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to Section 8. Dismissal Due to Unexplained Wealth
any transaction, contract or application already existing or pending - If the assets are manifestly out of proportion to the
at the time of such assumption of public office, nor to any application salary and other lawful income, the same shall be
filed by him the approval of which is not discretionary on the part of ground for removal or dismissal.
the official or officials concerned but depends upon compliance with - RA 1405 Bank Secrecy Laws
requisites provided by law, or rules or regulations issued pursuant to o One of the exceptions to the bank secrecy law are
law, nor to any act lawfully performed in an official capacity or in the those bank deposits which are subjects of cases
exercise of a profession. involving RA 3019.
Remember the ZTE scandal during Arroyo‘s time Except dollar accounts. RA 1405 only
where Mike Arroyo (Gloria‘s husband) transacted applies to peso deposits. It can only be
when he was not supposed to (nag apil-apil) opened with authorization by the account
holder.
RA 6713. Code of Conduct and Ethical Standards for Public perform and discharge their duties with the highest
Officers and Employees degree of excellence, professionalism, intelligence and
Section 3. Definition of terms: skill. They shall enter public service with utmost
The definitions are more or less the same with the Anti-Graft devotion and dedication to duty. They shall endeavor
and Corrupt Practices act. to discourage wrong perceptions of their roles as
1. Government dispensers or peddlers of undue patronage.
2. Public Officials - When entering into government, there must
3. Gift - refers to a thing or a right to dispose of be competence
gratuitously, or any act or liberality, in favor of - Must not only be knowledgeable but also
another who accepts it, and shall include a simulated hardworking
sale or an ostensibly onerous disposition thereof. It - Must not include hardworking in stealing
shall not include an unsolicited gift of nominal or
insignificant value not given in anticipation of, or in 3. Justness and Sincerity - Public officials and employees
exchange for, a favor from a public official or shall remain true to the people at all times. They must
employee. act with justness and sincerity and shall not
- Insignificant value depends on the position discriminate against anyone, especially the poor and
of the public officer the underprivileged. They shall at all times respect
the rights of others, and shall refrain from doing acts
4. Receiving any gift - includes the act of accepting contrary to law, good morals, good customs, public
directly or indirectly, a gift from a person other than a policy, public order, public safety and public interest.
member of his family or relative as defined in this They shall not dispense or extend undue favors on
Act, even on the occasion of a family celebration or account of their office to their relatives whether by
national festivity like Christmas, if the value of the consanguinity or affinity except with respect to
gift is neither nominal nor insignificant, or the gift is appointments of such relatives to positions
given in anticipation of, or in exchange for, a favor. considered strictly confidential or as members of their
xxx personal staff whose terms are coterminous with
9. Conflict of interest - arises when a public official or theirs.
employee is a member of a board, an officer, or a - Shall not discriminate anyone
substantial stockholder of a private corporation or
owner or has a substantial interest in a business, and 4. Political Neutrality - Public officials and employees
the interest of such corporation or business, or his shall provide service to everyone without unfair
rights or duties therein, may be opposed to or affected discrimination and regardless of party affiliation or
by the faithful performance of official duty. preference.
- Must give service to everyone
10. Divestment - is the transfer of title or disposal of
interest in property by voluntarily, completely and 5. Responsiveness to the Public - Public officials and
actually depriving or dispossessing oneself of his employees shall extend prompt, courteous, and
right or title to it in favor of a person or persons other adequate service to the public. Unless otherwise
than his spouse and relatives as defined in this Act. provided by law or when required by the public
interest, public officials and employees shall provide
11. Relatives - refers to any and all persons related to a information of their policies and procedures in clear
public official or employee within the fourth civil and understandable language, ensure openness of
degree of consanguinity or affinity, including bilas, information, public consultations and hearings
inso and balae. whenever appropriate, encourage suggestions,
simplify and systematize policy, rules and
Section 4. Eight standards of personal conduct procedures, avoid red tape and develop an
1. Commitment to Public Interest - Public officials and understanding and appreciation of the socio-
employees shall always uphold the public interest economic conditions prevailing in the country,
over and above personal interest. All government especially in the depressed rural and urban areas.
resources and powers of their respective offices must
be employed and used efficiently, effectively, 6. Nationalism and Patriotism - Public officials and
honestly and economically, particularly to avoid employees shall at all times be loyal to the Republic
wastage in public funds and revenues. and to the Filipino people, promote the use of locally
- Habitual absenteeism/tardiness affects produced goods, resources and technology and
commitment to public interest encourage appreciation and pride of country and
- Overtime cannot make up for tardiness people. They shall endeavor to maintain and defend
Philippine sovereignty against foreign intrusion.
2. Professionalism - Public officials and employees shall
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provided you are authorized by the Regional For example, the director of the BIR solicits
Director, then you take leave of absence once lechon and some amount of money for the
you appear in court. prizes of the Christmas party from the
Judges, the same. But they are allowed to clients. Are you liable for any crime? Yes in
teach or render lectures provided they have violation of R.A. 6713 and could also be a
been given authority by their executive violation of RPC as indirect bribery because
judge. these gifts are given by reason of your office
3. Recommend any person to any although there is no agreement.
position in a private enterprise If you did not ask, just the same because you
which has a regular or pending accept.
official transaction with their office.
Mere recommendation is a violation. Section 8.Statements and Disclosure. - Public officials and
- These prohibitions shall continue to apply for a employees have an obligation to accomplish and submit
period of one (1) year after resignation, retirement, or declarations under oath of, and the public has the right to
separation from public office, except in the case of know, their assets, liabilities, net worth and financial and
subparagraph (b) (2) above, but the professional business interests including those of their spouses and of
concerned cannot practice his profession in unmarried children under eighteen (18) years of age living in
connection with any matter before the office he used their households.
to be with, in which case the 1 year prohibition shall
- Again, this requires the submission of SALN.
likewise apply.
- There are two laws which requires the submission
- (c) Disclosure and/or misuse of confidential
of SALN:
information. - Public officials and employees shall
1. the anti-graft and corrupt practices act
not use or divulge, confidential or classified
2. this law, R.A. 6713.
information officially known to them by reason of
- Mere failure to submit SALN is a violation. If you also
their office and not made available to the public,
submit but you do not disclose the all and true assets
either:
and liabilities, also liable.
1. To further their private interests, or
give undue advantage to anyone; or
Section 9.Divestment. - A public official or employee shall
2. To prejudice the public interest.
avoid conflicts of interest at all times. When a conflict of
This is a provision prohibiting divulging
interest arises, he shall resign from his position in any private
private information. The law on
business enterprise within thirty (30) days from his
transparency rather than secrecy, the
assumption of office and/or divest himself of his
confidential information are not
shareholdings or interest within sixty (60) days from such
included.
assumption.
For example, you‘re a clerk of court and you
- If you are employed in a private establishment but
disclosed the decision before it was
your interest would be in conflict with your present
promulgated. Or you are a police officer, and
position, so you have to resign.
you knew that B has a warrant of arrest and
- Example, you own a school and you were appointed
you told C. that is an example of violation of
as a secretary of Education, necessarily, you have to
disclosure and or misuse of confidential
resign from that school. Or if you are the owner and
information.
you don‘t have a position in the school, you have to
- (d) Solicitation or acceptance of gifts. - Public
divest your private interests.
officials and employees shall not solicit or accept,
- If you are a banker and appointed a position in
directly or indirectly, any gift, gratuity, favor,
Central Bank, you have to give up your interests in
entertainment, loan or anything of monetary value
the bank.
from any person in the course of their official duties
- The same rule shall apply where the public official or
or in connection with any operation being regulated
employee is a partner in a partnership.
by, or any transaction which may be affected by the
- The requirement of divestment shall not apply to
functions of their office.
those who serve the Government in an honorary
Sec 2 - Any public officer who, by himself or any of its subdivisions, agencies or instrumentalities
in connivance with members of his family, or government-owned or -controlled corporations
relatives by affinity or consanguinity, business and their subsidiaries;
associates, subordinates or other persons, 4. By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
amasses, accumulates or acquires ill-gotten
form of interest or participation including promise of
wealth. future employment in any business enterprise or
through a combination or series of undertaking;
overt or criminal acts as described 5. By establishing agricultural, industrial or commercial
in Section 1(d) hereof, monopolies or other combinations and/or
in the aggregate amount or total implementation of decrees and orders intended to
value of at least 50M shall be guilty benefit particular persons or special interests; or
6. By taking undue advantage of official position,
of the crime of plunder
authority, relationship, connection or influence to
Can a private person be charged of unjustly enrich himself or themselves at the expense
plunder? and to the damage and prejudice of the Filipino
Yes. Sec 2 provides that ―Any people and the Republic of the Philippines.
person who participated with said
public officer in the commission of Take note:
plunder shall likewise be punished‖
for such offense - Series or combination of criminal acts
- The ill-gotten wealth shall be forfeited in favour of the - Plunder cannot be committed through a single
government upon conviction. transaction even if the ill-gotten wealth acquired
- Estrada vsSandiganbayan, Feb 26, 2002 amounted to 50M or more. It must be through series
- PpvsEnrile, GR No 213455, August 11, 2015 or combination of criminal acts mentioned.
- Any person who participated with said public officer
in the commission of plunder shall likewise be
July 10, 2016 punished for such offense. This refers to private
Part 17
persons who could also be charged provided he
Elements of the Crime of Plunder: conspired with the public officer.
- The essence of plunder is the amassing, accumulating
1. committed by any public officer who, by himself or in or acquiring ill-gotten wealth by a public officer or his
connivance with members of his family, relatives by associates or subordinates
affinity or consanguinity, business associates,
subordinates or other persons, Estrada v Sandiganbayan
2. that public officer amasses, accumulates or acquires - 2 kinds of conspiracy in the crime of plunder
ill-gotten wealth 1. Wheel or circle conspiracy –there is 1 person
3. through a combination or series of overt or criminal or group in the center of the conspiracy.
acts mentioned in Section 1(d), in the aggregate Those surrounding him are his associates.
amount or total value of at least 50M pesos All of them are working for one goal.
2. Chain conspiracy – here, from the
The different criminal acts or predicate criminal acts are: manufacturer goes to his wholesaler then to
the distributor/retailer then to the consumer
1. Through misappropriation, conversion, misuse, or or user.
malversation of public funds or raids on the public - SC said the conspiracy followed in the case of Estrada
treasury; and company is the wheel or circle conspiracy. The
2. By receiving, directly or indirectly, any commission,
hub is former President Estrada while the spokes are
gift, share, percentage, kickbacks or any other form of
all the accused, and the rim that encloses the spokes is
pecuniary benefit from any person and/or entity in
connection with any government contract or project the common goal in the overall conspiracy which is
or by reason of the office or position of the public the amassing, accumulation and acquisition of ill-
officer concerned; gotten wealth.
3. By the illegal or fraudulent conveyance or disposition - How did Estrada commit plunder?
of assets belonging to the National Government or
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According to the Sandiganbayan, Estrada acts. Because of this law, all the 50 criminal acts
committed plunder by the following: are contained in 1 information. So during the
1. By a series of acts of receiving bimonthly trial, there is no need for the prosecution to
collections from jueteng which is a form of prove all the 50 criminal acts to convict the
illegal gambling during the period accused. It is not necessary. All the prosecution
beginning Nov 1998-august 2000 in the has to do is to establish a pattern. For instance, if
total amount of 545,291,000.00, 200M of prosecution can prove 10 acts out of the 50 acts,
which was deposited in the Erap Muslim and among these 10acts he acquired 50M, then it
Youth Foundation. is sufficient to convict the accused of the crime
2. By series of 2 acts of ordering the GSIS of plunder.
and SSS to purchase shares of stocks of - Section 5. Suspension and Loss of Benefits
Belle Corporation and collecting or Any public officer against whom any criminal
receiving commissions from such prosecution under a valid information under
purchase or sales in the amount of this Act in whatever stage of execution and mode of
189,700,000 which became part of the participation, is pending in court, shall be
deposit in the Jose Velarde account. suspended from office.
There is no mention how many
―Jose Velarde‖ - This was a violation of CA 142, the use of days will the public officer be
another name other than your registered name except when suspended
such other name is used in the entertainment, cinema, tv or If we follow the provision of the
radio, athletics. In these instances, there‘s no need of a court Anti—graft Act, suspension is for
order. But in another alias, they should ask permission from 90 days.
the court to use such alias name. There must be a prior hearing
Should he be convicted by final judgment, he shall
Remember again that the purpose of plunder is to prosecute
lose all retirement or gratuity benefits under
public officers who would have acquired ill-gotten wealth.
any law,
- Section 3. Competent Court - Until otherwise
but if he is acquitted, he shall be entitled to
provided by law, all prosecutions under this Act shall
reinstatement and to the salaries and other
be within the original jurisdiction of the
benefits which he failed to receive during
Sandiganbayan.
suspension, unless in the meantime,
Connect this to the Rules on Criminal
administrative proceedings have been filed
Procedure. It does not mean that the
against him.
Sandiganbayan has the exclusive jurisdiction
over all plunder cases. It depends upon the - Section 6. Prescription of Crimes
position or salary grade of the public officer. So
The crime punishable under this act shall
RTC also has jurisdiction over plunder cases,
prescribe in 20 years. After the lapse of 20
except those who have higher salary grades or
years, if there is no case filed against him, he
those expressly mentioned by the
shall not be prosecuted anymore.
Sandiganbayan to be under its jurisdiction.
However, the right of the State to recover
- Section 4. Rule of Evidence - For purposes of
properties unlawfully acquired by public
establishing the crime of plunder, it shall not be
officers from them or from their nominees or
necessary to prove each and every criminal act done
transferees shall not be barred by
by the accused in furtherance of the scheme or
prescription, laches, or estoppel.
conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond TAKE NOTE OF THOSE CRIMES THAT CAN BE
reasonable doubt a pattern of overt or criminal acts CHARGED AGAINST PUBLIC OFFICERS.
indicative of the overall unlawful scheme or
conspiracy. TITLE VIII: CRIMES AGAINST PERSONS
Example, there are 50 information. It is not
necessary for the prosecution to prove all the 50 Article 246: Parricide
What do you mean by parricide? X wanted to kill Y. Because he wanted to kill Y, he waited for
Y at nighttime. Upon seeing a figure resembling that of Y, X
―Any person who shall kill his father, mother, or child, whether fired at the person. It so happen that it was his own father.
legitimate or illegitimate, or any of his ascendants, or descendants, What is the crime committed?
or his spouse, shall be guilty of parricide.‖
– Parricide. The law does not require knowledge of
Parricide is the killing of ascendants or descendants, except relationship between them.
only the spouse.
Article 247
Brothers and sisters
Article 247 does not define a crime. It is in the nature of an
– If the elder brother kills the younger brother or vice exempting circumstance, a defense.
versa, the crime is not Parricide. That is either
Homicide or Murder. It says: ―A legally married person who having surprised his spouse
in the act of committing sexual intercourse with another person,
Relatives by affinity shall kill any or both of them in the act or immediately thereafter, or
shall inflict upon them any serious physical injury.‖
– If the accused kills his father-in-law, that is not
Parricide. That is either Homicide or Murder. – The penalty is merely Destierro, which, according
to the SC, is not actually a penalty. This is a sort of
Adopted child and adoptive parent protection to the accused from possible revenge
from the relatives of the deceased.
– That is not Parricide. That is either Homicide or – The relationship must be legitimate. They must be
Murder. legally married.
– Either Homicide or Murder. The husband saw his wife and her paramour in a ―kissing
scene‖. Then and there the husband killed her husband and
The relationship of the spouses must be legitimate. the paramour. Is he liable?
– So the one killed is a common law spouse, that not – Yes. Because they are not in the act of sexual
Parricide. That is either Homicide or Murder. intercourse. The law says, ―in the act of committing
sexual intercourse‖. So be patient, you wait!
With regards the father, the mother and the child the
relationship could be legitimate or illegitimate. But as regards ―Immediately thereafter‖
the other ascendants or descendants, the relationship should
be legitimate. For example, the wife and her paramour were in the act of
having sexual intercourse. When the husband caught them,
Example: the paramour jumped off the window. The husband pursued
the paramour. After overtaking him, the husband killed him.
GF (Father of F) Is he liable?
F (Illegitimate father of S) – No. It is still exempting. The law says, ―In the act or
immediately thereafter‖.
S (Illegitimate Son of F)
PP vs Abarca, 153 SCRA 735
If GF here would kill S, that is not Parricide. That is either
Homicide or Murder. The same if it is S who kills GF. Now if Abarca was reviewing for the Bar in 1983 in Manila
S is less than 3 years old, that is Infanticide. for 6 months. While away, the wife was having an
extramarital affair. On the morning of July 15 1984, the
Situation: accused asked permission from his wife that he will go fetch
their daughter in Samar. The bus is scheduled to leave only
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twice in a day – one in the morning and another in the crying, the husband decided to follow the wife to the store but
afternoon. He was not able to catch the morning trip. So he could not find his wife there. He therefore decided to return
waited for the afternoon trip. Unfortunately, the bus was not home. But on his way home, he tripped on a wire lying across
able to proceed with its trip because its engine broke down. the way. When he stopped, he observed the leaves of the
What he did, he visited his father first then went home. When bamboo grass moving. He saw his wife in the act of sexual
he reached home, he heard moaning from inside the house. intercourse with her paramour. The accused, upon seeing
So, he proceeded immediately. There he found his wife them, drew a fan knife and pursued the paramour. Because he
having sexual intercourse with her paramour. The paramour, was not able to overtake him, he returned to his house where
upon seeing the husband, immediately grabbed his revolver he found his wife in the act of climbing the stairs. He then
and pointed at the husband. The husband ran away and went stabbed her several times. She died as a result.
to the house of his soldier-friend and took the latter‘s armalite
riffle. Thereafter, he returned to his house but the paramour The husband was charged with Parricide. Is he liable?
was no longer there. So he went to the place where the
paramour would usually hang out. Upon reaching the place, – No. The SC held that, the unfaithful wife was not
he saw him playing mahjong. Then and there, he fired at the killed in the very place where she was caught, for
the reason that the wronged husband preferred to
paramour, killing him instantly.
first attack the despoiler of his honor and
afterwards the adulterous wife who succeeded in
Is Abarca liable for the killing of the paramour? getting away from the place where she was caught
with her paramour. The assault of the woman must
– No. The SC acquitted him. According to the SC, the be understood to be a continuation of the act of the
RPC, in requiring that the accused ―shall kill any of wronged husband‘s pursuit of her paramour, who
them or both of them… immediately‖ after surprising had the good fortune to escape and immediately
his spouse in the act of intercourse, does not say get away. According to the SC, the discovery, the
that he should commit the killing instantly escape, the pursuit and the killing must all form
thereafter. It only requires that the death caused be part of one continuous act.
the proximate result of the outrage overwhelming
the accused after chancing upon the accused in the Another case:
basest act of infidelity. But the killing should have
been actually motivated by the same blind impulse The husband caught his wife in the act of sexual intercourse.
and must have been influenced by external factors.
The paramour was able to escape through the window. But
The killing must be the direct by-product of the
accused‘s rage. the wife received a severe scolding from the husband and was
ordered to leave the house. Calling her husband names, the
On occasion of the firing at the paramour, stray bullets hit a wife gathered her clothes and took a bolo from the kitchen.
couple in another room. He was charged with Frustrated When her husband followed her, she attacked him with the
Murder. Is Abarca liable? bolo, wounding him in the abdomen twice. Wrestling the bolo
from his wife, the husband stabbed the wife in the breast. She
– Yes, but not of Frustrated Murder. The SC ruled died from the wounds that night. The husband, though
that the accused, although he was committing a seriously wounded, survived.
legitimate act, should be held liable for the injuries
inflicted on the unintended victims. According to The husband was charged with Parricide for killing his wife.
the SC, there was negligence on his part. The
Is he liable?
accused did not exercise caution, not taking into
consideration that he was armed with a very
powerful firearm. Crime committed is Reckless – According to the SC, the husband is liable. (Dili na
Imprudence resulting in Serious Physical Injuries. kasab-an, patyon na dayon. Kelangan walay interval)
Criminally as well as civilly liable. – Again, the SC said, the discovery, the escape, the
pursuit and the killing must all form part of one
PP vs Alano, 32 Phil 383-384 continuous act. The killing must be the by-product
of the accused‘s rage.
One evening, the wife asked permission from the husband
Inflicted merely physical injuries
that she would go to a nearby store. Considering that the wife
did not return immediately their sick child was already
– For example, if the husband boxed the wife. Example, weighing the victims‘ bodies with a
Accused is exempt from punishment. cement and hub cap and tying their wrists
and ankles with nylon card and wire (PP vs
―These rules shall be applicable, under the same circumstances, to Maguddatu). Another example, that of the
parents with respect to their daughters under eighteen years of age,
Baramida sisters, whose bodies were placed
and their seducer, while the daughters are living with their
inside a barrel, cemented and thrown in the
parents.‖
sea. The cutting off of the head of the victim
is also outraging.
So, the father (for example) may kill the seducer of his
daughter as well as the daughter itself.
– ―Scoffing‖ means to mock, to jeer; this implies a
showing of irreverence.
– Judge D. Opinion: This should be repealed. Why
should you include your minor daughter? The law Example, the killer removed the intestines of
is unreasonable.
the victim and hung them around the neck
―Any person who shall promote or facilitate the prostitution of his of the victim‘s brother ―as a necklace‖ and
wife or daughter, or shall otherwise have consented to the infidelity the lungs and liver were facetiously
of the other spouse shall not be entitled to the benefits of this described as ―pulutan‖. (PP vs Carmina)
article.‖
Do you remember that bombing incident right after the Bar in
Article 248: Murder 2010? There was a grenade thrown by the accused. The victim
did not die. What‘s the committed?
What is murder?
– The crime committed is Frustrated Murder. The
It is the unlawful killing of any person which is not Parricide aggravating circumstance present is ―use of
explosives‖, paragraph 3, Article 248.
or Infanticide, provided any of the following circumstances are
– You remember the aggravating circumstances
present: mentioned.
1. With treachery, taking advantage of superior strength, Note: If in the killing of the victim there are 2 or more
with the aid of armed men, or employing means to weaken
aggravating circumstances, only (1) will qualify the killing to
the defense or of means or persons to insure or afford
Murder. The other aggravating circumstances, if any, will only
impunity.
2. In consideration of a price, reward, or promise. be considered generic aggravating circumstances.
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or assault Art. 248 Murder
upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other Elements:
means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the 1. That a person was killed
preceding paragraph, or of an earthquake, eruption of a 2. That the accused killed him
volcano, destructive cyclone, epidemic or other public
3. That the killing was attended by any of the qualifying
calamity.
5. With evident premeditation. circumstances
6. With cruelty, by deliberately and inhumanly augmenting 4. That the killing is not parricide or infanticide.
the suffering of the victim, or outraging or scoffing at his
person or corpse. Take note: Other aggravating circumstances are found in
Special Penal Laws.
―Outraging or scoffing at his person or corpse‖
Example: The use of an unlicensed firearm; The use of drugs.
– The only aggravating circumstance not found in
the Article 14. Under RA 9165, if the accused is found to be under the
influence of drugs at the time of the commission of crime, the
– ―Outraging‖ means to commit an extremely vicious use of drugs will be considered as a qualifying aggravating
or deeply insulting act. circumstance. So although the crime committed is homicide,
the use of drugs can qualify the crime of homicide to murder.
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- the unlawful killing of any person which is neither - Aside from proving the general criminal intent, the
murder, parricide nor infanticide. prosecution has to establish the specific criminal
intent to kill.
Penalty- Reclusion Temporal
- If what was proved was only a general intent to inflict
Elements:
physical injuries. Then the crime is only that of
1. A person was killed Physical injuries.
2. That the accused killed him without any justifying
circumstance - Example: Suppose the accused only boxed the victim.
3. That the accused had the intention to kill, which is And so was charged with Physical injuries (which
presumed may be serious, less serious or slight depending on
4. That the killing was not attended by any of the the wound or wounds inflicted). Later on, the victim
qualifying circumstances of murder, or by that of died. Q: What crime was committed, suppose there was no
parricide or infanticide. intent to kill?
IN BOTH MURDER AND HOMICIDE, INTENT TO KILL Ans. HOMICIDE. Because even if there was no intent
IS PRESUMED. to kill, such intent is conclusively presumed when the
act committed resulted to death.
- If the victim doesn‘t die, intent to kill is not
presumed. The prosecution must prove and establish FRUSTRATED/ CONSUMMATED
intent to kill. ATTEMPTED HOMICIDE
Q: How can the prosecution prove that there was intent to Specific criminal intent Intent to kill is presumed.
kill on the part of the accused? to kill must be established.
A: By showing to the court:
1. The weapon used- If the accused used a
firearm, that may show intent to kill; THERE IS NO SUCH CRIME AS RECKLESS
2. Location of the wounds IMPRUDENCE RESULTING TO FRUSTRATED MURDER
- If the wounds are for example located in
the vital parts of the body, for example - Because frustrated murder presupposes intent to kill.
the head, that may indicate intent to kill. Considering that there is no intent to kill, the crime
committed is only Reckless Imprudence resulting to
FRUSTRATED HOMICIDE ATTEMPTED HOMICIDE Serious or less serious physical injuries, as the case
may be.
- If the wound is mortal or - If the wounds are not fatal;
fatal, and had it not for the or Art. 250 Penalty for frustrated parricide, murder or homicide.
timely medical assistance, - If there‘s no wound at all,
the victim would have for instance the victim was - Courts may impose a penalty two degrees lower for
died. hit by a bullet in the head
frustrated parricide, murder or homicide;
but because he‘s hard-
headed the bullet did
injure him. - Courts may impose a penalty three degrees lower for
attempted parricide, murder or homicide.
Q: Why do we have to put ―murder or homicide‖
Art. 251 Death caused in a tumultuous affray
A: Because if any of the aggravating circumstances of murder
Tumultuous affray- In art. 153, it means that the
are present, the crime is frustrated murder. Otherwise just
disturbance is caused by more than 3 persons who are
frustrated homicide.
armed or are provided with means of violence.
Penalty: The crime committed is HOMICIDE IN - If the injuries inflicted are only slight physical
TUMULTUOUS AFFRAY. The penalty is prision injuries, then there‘s no crime committed.
mayor. Notice that it is lower than that of homicide.
Art. 253 Giving assistance to suicide
Elements: (Emphasis supplied for the important elements)
Acts punishable:
1. There be several persons
2. They did not compose groups organized for the 1. By assisting another to commit suicide, whether the
common purpose of assaulting and attacking each suicide is consummated or not
other reciprocally 2. By lending his assistance to another to commit suicide
3. That these several persons quarrelled and assaulted to the extent of doing the killing himself.
one another in a confused and tumultuous manner
As what we have learned, committing suicide is not a crime. What is
4. That someone was killed in the course of the affray
punishable here is giving assistance to a person who would like to
5. That it cannot be ascertained who actually killed the
commit suicide.
deceased
6. That the person or persons who inflicted serious What are the forms of assistance?
physical injuries or who used violence can be
identified. Example: Handing a knife, gun or poison to a person
wanting to commit suicide. Or assisting one to hang
Example: ACRO vs. Tau Gamma Phi. In the course of their himself up the rope.
fight, one member of ACRO died, and it cannot be
determined who among the members of TGP killed the Q: What if the one who rendered assistance was the one
victim. Q: What’s the crime committed? who killed the suicide victim? Ans. That is
AGGRAVATING. By lending his assistance to
A: Note that this article only applies when the persons
another to commit suicide to the extent of doing the
involved in the fight do not compose a group. Like that
killing himself, he can be meted with a penalty of
which we call a carambola. (Judge D didn’t provide for the
prision temporal, the same with that of homicide.
answer but probably homicide).
Art. 252 Physical injuries inflicted in a tumultuous affray RTC acquitted the accused because according to the judge, the
victim was not committing suicide. Because when you commit
Elements: suicide you want to die. Which wasn‘t the case here.
According to the court it was a religious belief and so he was
1. That there is a tumultuous affray as referred to in the
acquitted, perhaps based on reasonable doubt.
preceding article
2. That a participant or some participants thereof suffer
Art 254 Discharge of firearms
serious physical injuries or physical injuries of a less
serious nature only.
Elements:
3. That the person responsible therefor cannot be
1. The offender discharges a firearm against or at
identified.
another person
4. That all those who appear to have used violence upon
2. The offender has no intention to kill that person.
the person of the offended party are known.
- The accused here fired at another person but the act
would not constitute attempted homicide or attempted
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parricide or attempted murder. Why? Because there is no What if the pregnant woman is taken to the doctor and it is the
intent to kill. latter who prescribed the abortive pills? Now that
doctor/physician has a higher penalty;
How can there be no intent to kill when the offender discharged
What if the abortion is with the consent of the pregnant
the firearm against the victim?
woman? The penalty would be lower;
- Because of the distance. The possibility of hitting the Article 257. Unintentional Abortyion
victim is remote. Except of course when the offender
Scenario:
used a high- powered firearm.
Suppose the husband and the wife had a quarrel, and the
- If the distance was not so far, but still the victim was husband was able to lay hands unto his wife which resulted to
not hit. The crime is ATTEMPTED HOMICIDE OR the unintentional abortion, crime here is unintentional
ATTEMPTED MURDER. Legal basis: definition of abortion; caused an abortion through violence but
an attempted felony. unintentional.
Notes:
Illegal discharge of firearm presupposes that there is no intent Purpose of the violence inflicted is not to cause an abortion;
to kill; the purpose of the offender is merely to frighten the
victim; no intent to kill, merely to intimidate. Could only be committed through violence;
-People vs. Agbuya 57 SCRA 238; the distance of 200 meters Ex:A pregnant woman attempted to commit suicide, upon
was so great that it is difficult to impute an intention on the taking the poison, the board mates of the pregnant woman
part of the offender to kill the offended party. noticed her unconscious, so she was rushed to the hospital,
fortunately the pregnant woman was saved, however the fetus
Article 255. Infanticide
inside the womb died. Is the pregnant woman liable for
unintentional abortion? No. In the first place committing
Killing of a child/infant less than 3days of age;
suicide is not a crime, and unintentional abortion can only be
Date of birth is material for the conviction of the accused, committed through violence.
hence date of birth must be stated in the information.
Could the accused be held liable for abortion even if he did not
Note: Killing a child of tender years is always murder even if know that the woman is pregnant? Yes. (US vs Jeffry 15 PHIL
394)
the manner of killing is not proved by the prosecution; mere
fact that the victim is a minor is sufficient
Unintentional abortion could also be committed through
negligence or imprudence. For example the pregnant woman
Mitigating circumstance: if the killing is done by the mother to
conceal dishonor; penalty is prision mayor in its med-max was killed, the crime is homicide with unintentional abortion.
periods instead of reclusion perpetua to death; if said crime is
Article 258. Abortion practiced by the woman herself or by
committed by same purpose by the maternal grandparents
her parents
(not paternal), penalty is reclusion temporal.
Notes:
The baby must be born alive and fully developed that is, it can
sustain an independent life. Prisioncorreccional in its med-max periods shall be imposed
upon a woman who shall practice abortion upon herself or
Article 256. Intentional Abortion
consent to any other person to do the same.
Any person who shall intentionally/willfully cause an
Any woman who shall commit this offense to conceal dishonor
abortion shall suffer the penalty of reclusion temporal if used
shall suffer only the min.-med periods of the same penalty
any violence upon the person of the pregnant woman;
mentioned above.
purposely to abort the child
259 Abortion practiced by a physician or midwife and
Notes:
dispensing of abortives
What if the father let the daughter take abortive pills? Still
intentional abortion but considering there is no violence, then - Penalty for the physicians and midwifes for dispensing
the penalty would be lower; abortives
- Physician or midwife are educated, sworn to save life but - The victim here is only a male, as regards par 1 – the
if they would use their knowledge in order to abort or to penalty for mutilating an organ for reproduction is higher
kill that is aggravating - What about ―any other intention ―mutilation‖, what is
- Knowledge is aggravating the penalty? Prision mayor in its medium and maximum
- The same story with a pharmacist who, without a proper periods.
prescription from a physician shall dispense any abortive EX: What is the crime committed if the accused would
to a pregnant woman intentionally cut off the fingers of another person? That is
o Mere dispensing is enough intentional mutilation.
o The pharmacist should never give the abortive
without a prescription EX: What is the crime committed if the accused would
intentionally cut off the tongue of another person? That is
260 Responsibility of participants in a duel intentional mutilation.
- Not applicable anymore in the Philippines, only in EX: What is the crime committed if Mr X armed with a bolo,
Europe with intent to kill hacked Mr Y. Mr Y in an attempt to parry the
- Duel – formal or regular combat previously concerted attack, he used his hand. But in so doing, his fingers were hit
between two parties in the presence of two or more by the bolo. Three of his fingers were cutoff. What crime/s are
seconds of lawful age on each side, who make the committed by Mr X? He is charged with mutilation. Is the
selection of arms and fix all the other conditions of the charge proper? TN that the mutilation or cutting off of the part
fight.
of the body of the victim should not be the result of the
- This is the same with boxing or stick fighting. There are
referees or seconds or assistants who facilitate the game. commission of another crime. So the cutting of a part of the
They also have rules. body of the victim should be done deliberately or intentionally.
- If someone joins a duel then he will be charged with If the cutting off of some part of the body is a result of the
homicide and not for violation of Art 260. wound inflicted or the result of another crime, Art 262 is not
the crime committed but it could be attempted homicide or
attempted murder.
261 Challenging to a duel
- CASE:Aguirevs Secretary of the DOJ, GR No. 170723, March
EX:If someone calls you out to a fight but you don‘t fight back
3, 2008
then he calls you a ―scaredy cat‖. o The adoptive father let his mentally retarded adopted
child undergo a vasectomy. His adoptive child had a
- CASE: Pp vs. Tacomoy, GR L-4798, July 16, 1951 girlfriend-boyfriend relationship with his legitimate
o Accused here was nursing ill feelings and moved by child. So that the adopted child and the legitimate
hatred, challenged the offended party to a duel, child could not bear a child, he had a friend who was
inciting the latter to accept said challenge by uttering: a doctor so he let him undergo vasectomy. The
―Come down, let us measure your prowess, we shall daughter or the legitimate child filed a case for
see whose intestine will come out. You are a coward if mutilation against her father and the doctor who
you do not come down.‖ The offended party refused conducted the vasectomy on her adopted brother.
to come down and accept the challenge. Later, when Liable?
the accused saw the offended party running toward a
nearby house, the former ran after the latter, but
desisted upon seeing that the offended party had a 263 Serious physical injuries
companion.
He was charged with challenging to a duel but - When can you say that the physical injuries committed
convicted of light threats only. are serious?
- Penalty depends on the seriousness of the physical
injuries.
262 Mutilation - What about if the victim would later on die? The
prosecution charged him with serious physical injuries
- What is the crime committed by the wife who is already because there is no intent to kill but later on the victim
tired of her husband who is a womanizer, a habitual dies? The crime is homicide because once the victim dies
drunkard who cut off the penis of her husband? That is the intent to kill is presumed.
mutilation.
- Penalty: Reclusion temporal to reclusion perpetua
Par 4, Art 263
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- TN more than 30 days – minimum number of days EX: You were boxed at the right ear and now you cannot hear
- If it is only 30 days or less, up to 10 days – less serious anymore. Lost the use of the right ear so serious physical
- Penalty: arresto mayor in its maximum period to prision injuries.
correctional in its minimum period
- ―Or becomes ill or incapacitated for the performance of
- ―The physical injuries caused illness or incapacity for labor‖ –
the work in which he was habitually engaged for more
he cannot perform any habitual work for more than 30
than 90 days‖
days
o Penalty would be higher if the period of incapacity
would be more than 90 days
o 31-90 days – serious physical injuries
Par 3, Art 263
o 91 days or over – serious physical injuries but the
penalty would be higher
- Penalty is higher
- ―In consequence of the physical injuries, the person injured Par 2, Art 263
shall have become deformed‖ – suffers deformity
- If the victim suffers deformity, number of days is - More serious penalty
disregarded - ―Injured person loses use of speech‖ – person cannot
EX: Accused boxed the victim in the mouth and as a anymore speak, ha to use sign language
consequence, the victim lost his two front teeth. - ―Or the power to hear‖ – so if only 1 ear still serious
According to the doctor, the injury would heal in two physical injuries but lower penalty, since it would fall
weeks. What is the crime committed? The crime under par 3. If both ears cannot hear anymore, then apply
committed is serious physical injuries because the injury par 2 which carries with it a higher penalty.
caused deformity. - ―Or smell‖ – cannot smell anymore
- ―Or shall have lost an eye‖ – only one eye
- Reasons why this is considered serious physical injuries:
- ―Hand, foot, arm, or leg, or loses use of any such member or
1. Would cause deformity
becomes incapacitated for work in which he was habitually
2. Would lose part of your body
engaged‖ –he cannot anymore perform his habitual work.
EX: The wife got really mad at a girl who she thinks is the
Under par 3 he can still perform but not more than 90
concubine of her husband. He scratched her face. The injuries days, here in par 2 there is permanent disability here.
healed in five days. But later on the scars protruded in such a
way that her face got deformed. What is the crime committed? Par 1, Art 263
That is serious physical injuries because the injuries caused
deformity. - ―Become blind‖ – two eyes are already useless
- Penalty: prision mayor
- In order to be considered as a deformity, the same must - This presupposes that there is not intent to kill on the
be conspicuous and visible as well as permanent and part of the accused or the prosecution even if there was
definite abnormality intent to kill, prosecution failed to prove intent
- Deformity – physical ugliness, permanent and definite
abnormality. It must be conspicuous.
- Front teeth is considered serious for two reasons: ―If the offense shall have been committed against any of the persons
1. It will cause deformity enumerated in Art 246‖
2. You would lose a part of your body
EX: What if instead of becoming ugly, you become handsome - Persons in parricide
or pretty?
―Or with attendance of any of the circumstances in Art 248‖
- CASE: PpvsBalubar, 60 Phil 699
o The injury contemplated by the Code is an injury that - Remember the aggravating circumstance
cannot be repaired by the action of nature. The fact that EX: During nighttime you waited for the victim then
the offended party may have artificial teeth, if he has you boxed. There is treachery there or evident
necessary means and so desires, does not repair the premeditation although there is no intent to kill. The
injury, although it may lessen the disfigurement. The crime is serious physical injuries.
case of a child or an old man is an exception to the rule. The penalty is higher if as a result of the physical
o Even if the false teeth would be replaced, the same
injuries the victim would become insane, impotent or
would still be considered serious physical injuries.
o Case would be different if it was a child or an old man. blind
- ―Deformity, or loses any other member of the body, or the use
therefor‖
EX: Hands were pounded on. It cannot anymore be clinched.
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―The provisions of the preceding paragraph shall not be applicable to in authority or his agent is in the actual
a parent who shall inflict physical injuries upon his child by excessive performance of his duties or by reason of his
chastisement‖ past performance of his duties, the crime
would be direct assault with less serious
- Applicable to parents who overdo physical injuries
- Purpose is to discipline the child but the parent can be o But if it has no connection with his work or
charged for child abuse he was not physically injured while in the
- The parent who shall impose excessive chastisement performance of his duty, then it would be
would be liable for child abuse less serious physical injuries
- Even if the injuries of the victim healed in 20 days but - They cannot be prosecuted de officio. Meaning there
he did not go to a doctor for a treatment, or he wasn‘t should be a complaint signed by the private
able to present a medical certificate, the accused complainant. Unlike in other crimes the complaint of
cannot be convicted of Less Serious Physical Injuries. the private complainant is not necessary but of course
it is advantageous.
- At most, he could only be convicted of Slight
Physical Injuries because in the crime of slight 2 KINDS OF RAPE under the amendment:
physical injuries, injury is not even necessary.
1. RAPE BY CARNAL KNOWLEDGE
Q: Can there be treachery in the crime of Physical Injuries? 2. RAPE BY SEXUAL ASSAULT
A: YES.
Rape by Carnal Knowledge
Rape used to be classified as a crime against chastity. Later on COMPLETE DEPRIVATION OF REASON IS
it has been reclassified as a crime against persons. NOT REQUIRED. MERE ABNORMALITY IS
ENOUGH. Here there might be no resistance on
Crimes against chastity are private crimes. the part of the offended party but since she is
deprived of reason, she is incapable of giving TN: that Carnal knowledge is different from sexual
consent. intercourse.
―or otherwise unconscious‖ There is rape by carnal knowledge even if there was
Example: The offender drugged the victim. Do you no full penetration.
know that there is already a liquid ecstasy. It knocks Rape by carnal knowledge is consummated even if the
you out for one or three hours. You wouldn‘t even tip of the penis has only kissed the lips of the vagina.
notice the drug because it just looks like a candy. But there must be penetration. Because if there is no
penetration, there is no consummated rape.
Example: when victim is asleep. Being asleep is SLIGHTEST PENETRATION IS ENOUGH TO
synonymous to being unconscious. CONSUMMATE RAPE.
The presence of Semen is not also required.
Q: How can the crime of rape be proved when the victim is
unconscious? Q: Can a woman be held liable for Rape?
Ans: By circumstantial evidence. The prosecution has
Ans. YES. But not by direct participation. She could be liable by
to establish circumstances to prove the crime of rape.
inducement. Example: If she induces another to rape the
mistress of her husband. She can be held liable as principal by
c) ―By means of fraudulent machination or grave
inducement.
abuse of authority‖ this is one of the recent amendments
of the crime of rape. No jurisprudence yet on this. Rape by Sexual Assault
Example: The offender has a girlfriend who doesn‘t - This is one of the recent amendments of rape. This
want to have sexual intercourse with him unless they used to be acts of lasciviousness.
get married. So he contacted a friend who pretended - Here, rape can be committed by a male or a female, the
to be a judge to ―solemnize‖ their marriage. Now victim too could be a woman or a man.
because in her mind they are already married, the
woman acceded to the request of the man, who is Elements:
now her husband to have sexual intercourse. She then
found out that the marriage was a sham. Here, the 1. The offender commits an act of sexual assault
man succeeded to have sexual intercourse with her 2. That the act of sexual assault is committed by any of
through fraudulent machination. the following means
a. By inserting his penis into another person‘s
―Grave abuse of authority‖ mouth or anal orifice or
b. By inserting any instrument or object into the
Example: A jailguard promised a female prisoner that genital or anal orifice of another person
the latter can be released provided she‘d have sexual
intercourse with him. Believing that she could indeed 3. That the act of sexual intercourse is accomplished
be released, she acceded to have sexual intercourse under any of the following circumstances:
with the jailguard. a. By using force or intimidation
b. When the woman is deprived of reason or
d) ―When the woman is under 12 years of age or otherwise unconscious or
demented‖- STATUTORY RAPE c. By means of fraudulent machination or grave
abuse of authority or
- The girl here may have given her consent to the d. When the woman is under 12 years of age or
sexual intercourse but the law considers it to be demented.
Rape because THE GIRL AS A MINOR, IS
INCAPABLE OF GIVING A VALID CONSENT Q: What is the crime committed if the man, instead of inserting his
TO THE SEXUAL INTERCOURSE. penis to the anal orifice of the woman, inserted his pen?
2. Rape by sexual assault – prision mayor 10. When offender knew of the mental disability/emotional
disorder and or physical handicap of the victim.
3. When rape is committed with use of deadly weapons –
reclusion perpetua to death Rape is committed when victim is deprived of reason or is
unconscious; even if the victim is asleep, it is considered as
4. if by reason of rape the victim became insane – reclusion being unconscious
perpetua to death
Note: there is only a hairline difference between attempted
Now there is a special complex crime under this provision, rape and acts of lasciviousness so be careful
where 2 or more crimes are committed but under the law it is
only considered as 1 indivisible crime and the law provides a TN that there is only a hairline difference between attempted
specific penalty thereof; it says when rape is committed and rape and acts of lasciviousness.
homicide is committed on occasion thereof, the penalty is
reclusion perpetua to death Attempted Rape is committed when there is evidence that the
accused has committed overt acts which show intent to rape
Now if the crime is attempted rape with homicide (special the victim.
complex crime) Case: Accused after raising the dress of a woman who
was asleep, placed himself on top of her. When the
What if the victim did not die? Now article 48 will apply woman was awaken, the accused threatened her with
(penalty depends upon the more serious offense). a knife. But because of the woman‘s continued
shouting, people came to her rescue. So here, there
Homicide here is used in its generic sense; even if the killing was an attempt of the accused to have sexual
constitutes murder, the crime is still rape with homicide. intercourse with the woman.
Overt acts here: raising the dress, placing
Qualifying circumstances:
himself on top of the woman
1. Victim is under 18yrs old and the offender is the
parent/ascendant/step parent/relative by Case: Pp vs Dayo 62 Phil 102 - In this case, the victim
consanguinity/affinity within the 3rd civil degree or the was asleep when the accused entered her room and
common law spouse of the parent of the victim. committed sexual intercourse with her. When
prosecuted for rape, the accused contented that the
2. When the victim is under the custody of the police/military woman consented because when the latter woke up,
authorities or any law enforcement/penal institution. she did not resist. SC said that the crime committed
was consummated rape and the offended party‘s final
3. When the rape is committed in full view of the consent after she realized the outrage perpetrated
spouse/parent, any of the children/other relatives within the against her is not of the character to exclude the
3rd civil degree of consanguinity consent in the crime of rape.
TN that when the woman woke up, the
crime of rape was already consummated;
and her failure to resist will not extinguish the credibility. (Pp vs Macapanas 620 SCRA 54) – this applies
rape. to any crime!
Character of the woman is not material in the crime of rape. Q: Can treachery be appreciated in the crime of rape?
A prostitute may be a victim of rape. A: Yes. Treachery is only applicable in crimes against persons.
Since rape is now classified as crimes against persons, it
In rape with homicide, the main purpose of the accused must follows that there could be treacher. Ex: putting sleeping pills
be to rape. in the drink of the woman so that she can be raped later.
Case: The main purpose of the accused was to kill the
victim. When the victim was already dying, he had Q: Can a husband be held liable for rape?
sexual intercourse with her. SC said the crime was A: Yes. Pp vs Jumawan – a landmark case! Read to know the
murder and the act of raping the victim when dying rationale why the husband was convicted. Part of ruling said:
was aggravating – ignominy/cruelty. Marriage license does not give the husband a license to rape.
The moment the prosecution establishes the crime of rape, it is The subsequent valid marriage between offender and the
mandatory for the court to award: (proof of damages not offended party shall extinguish the penalty imposed. Marriage
necessary; even if victim did not testify that she suffered must be valid.
mental anguish.)
Rape – P50,000 TN: if they are already married when the crime was
Qualified Rape – P75,000 committed, you can extinguish rape thru PARDON. Even if a
Rape with homicide – P100,000 case of rape was already filed in court, pardon by the wife will
TN: P50,000 is the minimum only extinguish the crime. But in acts of lasciviousness, seduction –
to extinguish the crime, pardon by the offended party must be
There are only 2 persons when the crime of rape is committed. given BEFORE FILING IN COURT.
During the trial, the prosecution only has 1 witness- the victim.
The doctor may testify but that testimony would only be Article 266-D. Presumptions. - Any physical overt act
corroborative (As regards the injuries of the victim) manifesting resistance against the act of rape in any degree
from the offended party, or where the offended party is so
Q: Is the testimony of the woman (victim) sufficient to convict situated as to render her/him incapable of giving valid
the accused? consent, may be accepted as evidence in the prosecution of
A: Yes, if credible. SC said, ―When a woman says that she has the acts punished under Article 266-A
been raped, if credible, she says all that is necessary to prove Remember PP vs Jalosjos – it is per case not per
that rape was committed.‖ (Pp vs Robles 550 SCRA 463) victim.
Physical Resistance is immaterial in rape when the victim is July 15, 2016
sufficiently intimidated by her assailant and she submits Part 19
against her will for fear of her life. If threat or intimidation is
used, there could be no resistance. TITLE IX – CRIMES AGAINST PERSONAL LIBERTY AND
SECURITY
Actual penetration or rupture of hymen is not required.
Slightest touching or penetration of the lips of the organ is Art. 267: Kidnapping and Serious Illegal Detention
sufficient to constitute rape. (Pp vs Ortega 562 SCRA 450) TN
that there must be penetration but very slight. If there is no – Kidnapping and illegal detention are technically
penetration, but there is intent to rape – Attempted Rape. different because there can be detention without
kidnapping. When you say kidnapping, that is the
Usual defense of the accused: taking of a person to another place; detention does not
Sweetheart Defense – valid but much abused. It is require the taking away of a person to another place. In
similar to denial and cannot prevail over positive fact, a person could be detained even in his own home.
testimony that rape has been committed. (PP vs IOW, there can be detention even without kidnapping.
Tuason) – Kidnapping need not necessarily be followed by
detention. Such as, where the taking was only to briefly
Delay in the reporting of the commission of rape will not affect restrain the victim in order to kill him.
the credibility of victim. This is what we call vacillation. Delay When is kidnapping and serious illegal detention committed?
in reporting the crime of rape due to death threats is not an
indication of fabricated charge. The charge of rape is doubtful Any private individual who shall kidnap or detain another, or
only if delay is unreasonable and unexplained. So when delay in any other manner deprive him of his liberty shall be liable
can be explained and the reason is justifiable, it will not affect
for kidnapping and serious illegal detention in any of the – The crime committed would still be serious illegal
following circumstances: detention or kidnap for ransom.
– Kidnapping is another form of extortion. Extortion is
1. If the kidnapping or detention shall have lasted more than the act of ―asking for money‖.
three (3) days. – Kidnapping for ransom can be committed even if the
2. If it shall have been committed simulating public authority. offender has not actually demanded for ransom as long
– If the offenders pretended to be police officers, as the purpose of such kidnapping or detention is to ask
flagged down the victim who was driving his car. for ransom.
Thinking that the offenders were really police
What do you mean by ransom?
officers conducting checkpoint, the victims
– Money, prize or consideration paid or demanded for the
stopped. But when he stopped, he was kidnapped
redemption of a captured person/s or a payment that
and detained elsewhere. The crime is serious illegal
releases from captivity the victim. It is not limited to the
detention.
payment of money. In one case, the accused was
– Suppose a day after his kidnap, the victim was
kidnapped in order to compel him to pay the hospital
rescued. The crime committed is still serious illegal
detention because the kidnapping was committed bills of another person. The crime committed his
kidnapping for ransom.
by simulating public authority. Notwithstanding
Kidnap for ransom is committed even if none of the
the kidnapping did not last for more than (3) days.
3. If any serious physical injuries shall have been inflicted upon circumstances earlier mentioned is committed.
the person kidnapped or detained; or if threats to kill him Special Complex Crime
shall have been made.
– Do you recall the case of actor Vhong Navarro? He – When the victim is killed or dies as a consequence
was detained and while detained, he was subjected of the detention or is raped or is subjected to torture
to serious physical injuries. The crime is serious or dehumanizing acts.
illegal detention even if the circumstances – A single, indivisible offense. Kidnapping with
mentioned in paragraphs 1 and 2 are not present. homicide, kidnapping with rape.
4. If the person kidnapped or detained shall be a minor, female
or a public officer. PP vs. DELIM, GR. NO. 142773, January 28, 2003
– What is the crime committed if a child (2 years old)
was kidnapped but after two days, he was rescued. If the primary and ultimate purpose of the offender is to kill
The crime is serious illegal detention even if the the victim, the incidental deprivation of the victim‘s liberty
circumstances mentioned in paragraphs 1, 2 and 3 does not constitute kidnapping but merely a preparatory act
are not present. to the killing. Hence, the same is merged into or absorbed by
5. If the victim is a female or when the victim is a public officer.
the killing of the victim. The crime committed would either be
– What is the crime committed when the kidnap
victim is a female public school teacher. The crime murder or homicide.
is serious illegal detention even if the
circumstances mentioned in paragraphs 1, 2 and 3 CASES:
are not present.
– What circumstance/s that made the crime serious PP vs. ESTACIO, JR., July 22, 2009
illegal detention? The fact that the victim is female PP vs. RAMOS, 297 SCRA 618
and the fact that she is a public officer, being a PP vs. SOLANGON, November 21, 2007
public school teacher.
How about the practice of hospitals of not releasing their
Can a parent be held liable for serious illegal detention? patients unless they pay their hospital bills?
– YES. Example, when the spouses have legally separated – The crime committed is serious illegal detention.
or their marriage annulled, and the custody of a child
has been awarded to the wife. Without the consent of Essence of Illegal Detention
the wife, the father took the child away with him and
brought the child elsewhere. The crime committed is – The intention of the offender to deprive the victim
kidnapping but the penalty there is lower under Art. of his liberty. If the accused does not have the
271. intent to deprive the victim of his liberty, the crime
committed may not be illegal detention.
What is the crime committed if the purpose of the kidnapping – For example, if the main purpose of the offender is
is to extort money or to ask for ransom from the victim‘s to kill the victim and in order to carry out his
family? intention, he took the victim and brought him to
another place and there he was killed, the crime is
- It is forcible abduction. NOT serious illegal detention. Art 269 – Unlawful Arrest
Slight illegal detention - Any person who, in any case other than those
authorized by law, or without reasonable ground
- When none of the circumstances mentioned in Art 267
therefore, shall arrest or detain another for the
are present, the crime is only slight illegal detention.
purpose of delivering him to the proper authorities.
- What is the liability of the person who would furnish
- So the accused here arrested another person but the
the place for the detention of the victim? He was not
purpose of arresting is to bring him to proper judicial
included in the conspiracy but the victim was
authorities.
detained in his house even if he knows about the
- X is having vacation in Bohol. He was told by his
crime? helper that her neighbour took away his rooster a day
He is an ACCOMPLICE. after X left for Bohol. After knowing about it, X went
But under Art 268, the penalty of the to the house of Y and dragged him to the police
accomplice is the same with that of the station, forcibly. What is the crime committed by X?
principal. Unlawful arrest. Why? The arrest could not
―The same penalty shall be incurred by fall under valid warrantless arrest because
anyone who shall furnish the place for the the crime was committed days ago therefore
perpetration of the crime.‖ it is unlawful and the purpose is to bring
There is a privileged mitigating mentioned him to proper judicial authorities.
in the last paragraph. When we say Suppose X, instead of bringing Y to the
privileged mitigating, penalty is lower by police authorities would detain Y in the
one degree. former‘s house? The crime now would be
Here, it says that ―If the offender illegal detention because the purpose is not
shall voluntarily release the person
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As discussed by Judge D
anymore to deliver the person to proper that city clearly do not institute that
judicial authorities but to detain him. So the inducement which is essential to theact.‖
crime is illegal detention. And if the The phrase ―to induce‖ means ―to
influence; to prevail on; to move by
detention would last more than 3 days,
persuasion; to incite by motives.‖
serious illegal detention.
―Since there was very little difference in their
What about if the one arresting Y is a police ages, and there could not have been much
officer? Arbitrary detention because he is a difference in the degreeof their intelligence,
public officer and has authority to detain but it cannot be supposed that the accused
detained without any legal ground. commanded such ascendancy over the
offendedminors to be able to prevail on
So TAKE NOTE of the purpose.
them, or that the latter were so gullible as to
believe outright the promise of a mere maid,
Art 270. Kidnapping and failure to return a minor
a minor like them, with no other source of
income except the small salary that she was
- The victim is a minor. The minor is entrusted to the
receiving as such. The probabilities are that
accused but he failed to restore custody to the person these girls abandoned their respective homes
in-charge of the minor. moved by the irresponsible spirit of
- If you have a neighbour and told you that he would restlessness and adventure which is
bring your child to the mall because he would buy commonly found in the youth of today, and
some gift for your child. Then you entrusted the not because of the offer and promise made
minor to such neighbour. But your friend did not by the accused.‖
- 2ndpara of Art 271 refers to the penalty to parents who
anymore return the minor. What‘s the crime?
would kidnap their own child. If the person
Kidnapping and failure to return a minor. committing any of the crimes covered by the two
The minor is entrusted to the accused but he preceding articles, Arts 270 and 272,shall be the father
deliberately failed to restore such minor to or the mother of the minor, the penalty shall be
the person in-charge of the minor. arresto mayor or a fine not exceeding three hundred
- This can be committed by parents but the penalty is pesos, or both.
lower as provided in the next article.
ARTICLE 272. Slavery
- Ppvs Marquez, GR No. 181440, 2011 case.
- any person who shall purchase, sell, kidnap, or
detain a human being for the purpose of
Art 271. Inducing a minor to abandon his home.
enslaving him
- to lower the penalty of kidnapping/serious
- Anyone who shall induce a minor to abandon the illegal detention, turn him into a slave so that the
home of his parent or guardiansor the persons penalty will only be Prision Mayor
entrusted with his custody. - 2 degrees lower than kidnapping
- The accused is a maid who worked in Manila. When
she went home, she told the minors that Manila wasa If the crime be committed for the purpose of assigning the
big city with tall buildings. The minors went with her offended part to some immoral traffic
in Manila. She was charged with inducing a minor - imposed in its maximum period
toabandon his home. Is she liable?
According to the CA, accused is not guilty of Related to a special law RA 9208
the crime charged. - slavery as a serious offense
―In order for an inducement of a minor to - trafficking in person
abandon the home of his parents, it is - life imprisonment
essential that the inducement be actual,
committed with criminal intent, and ARTICLE 273. Exploitation of Child Labor
determined by will to cause damage.‖ - another form of slavery
So intent is necessary. In the present case, the - Anyone who under the pretext of reimbursement
CA said that ―the conversation made by the himself of a debt incurred by an ascendant,
accused was an innocent talk. The guardian, or person entrusted with the custody
representations made by the accused to the of a minor, shall, against the latter's will, retain
minors highly praising the city of Manila him in his service.
andher offer and promise to take them to - Not a star provision unlike the previous one but
it came out.
- The offender is a creditor. The debtor fails to pay - He is the author of the injury by accident but did
his loan. In order to pay the loan, the creditor not render assistance
requires the minor child of the debtor to work in
his service 3. Anyone who, having found an abandoned child under
- This is also found in Trafficking in persons seven years of age, shall fail to deliver said child to the
o Debt bondage authorities or to his family, or shall fail to take him to a safe
o The minor is working against his will, place.
this may also be considered as child - There is a child left at the gate of your house. If
abuse not helped then you are liable under paragraph 3
- If done against the will of the minor then it is of Article 275.
exploitation of labor. - You must deliver the child to DSWD or Barangay
captain.
Debt Bondage
- You don't know when the service will end ARTICLE 276. Abandoning a Minor
- The cost of services is not clear, there is no clear Imposed upon any one who shall abandon a child under
liquidation seven years of age, the custody of which is incumbent upon
- You don't know when the debt is done him shall result from such abandonment
ARTICLE 274. Services Rendered Under Compulsion in - When finding a child then doing nothing = Art.
Payment of Debt 275. For those who abandon the child = Art. 276
- Any person who, in order to require or enforce - Offender has no intent to kill but he left the child
the payment of a debt, shall compel the debtor to in front of the gate because he could not care for
work for him, against his will, as household the child.
servant or farm laborer. - If the purpose of the abandonment is to lose the
- the debtor himself is required to work for his civil status of the child
debt as household servant or farm laborer o The crime is violation of Art. 347
- if working as a driver then it is not covered o If the purpose is just to abandon then
the crime is Abandoning a Minor
ARTICLE 275. Abandonment of Persons in Danger and
Abandonment of One's Own Victim ARTICLE 277. Abandonment of Minor by Person Entrusted
- Felony by omission, one is required to do but with His Custody; Indifference of Parents.
fails to perform
Par. 1 Abandonment of minor by persons entrusted with his
1. Anyone who shall fail to render assistance to any person custody
whom he shall find in an uninhabited place wounded or in - Any person who, having charge of the rearing or
danger of dying, when he can render such assistance without education of a minor, shall deliver said minor to
detriment to himself, unless such omission shall constitute a a public institution or other persons, without the
more serious offense. consent of the one who entrusted such child to
his care or, in the absence of the latter, without
- If people went island hopping in Nalusuan the consent of the proper authorities.
Island. On your way, you found a fisherman Ex. The mother is working abroad and the aunt was
whose boat capsized and asked for help. You left with the kid. The kid was left with another person
looked the other way and abandoned him. You and another person was to care for the child.
are liable under this paragraph. The middle of
the sea is an uninhabited place. He is in danger of Par. 2 Indifference of Parents
dying. - Parents who shall neglect their children by not
- If you find a person stabbed and left dying. He giving them the education which their station in
asked for help but you ignored him. If he was life requires and financial condition permits.
found in an uninhabited then you are liable. If he - Violation of RA 7610
was found in Colon then you are not liable - Violation Against Women and Children
because the place is not uninhabited.
- Important to note that the place must be an ARTICLE 278. Exploitation of Minors
uninhabited place or detriment to himself 1. Any person who shall cause any boy or girl under sixteen
years of age to perform any dangerous feat of balancing,
2. Anyone who shall fail to help or render assistance to physical strength, or contortion.
another whom he has accidentally wounded or injured.
- Letting a child become acrobats or contortionists
PROHIBTION WHEN THERE IS A STRAINED RELATION - If you went in the house and stabbed the owner of the
BETWEEN OCCUPANT AND THE ACCUSED house then the crime is homicide. Trespass to dwelling is
not considered a crime but considered as an aggravating
- Even if the door is open but you are enemies then you circumstance.
cannot enter EX: Accused wanted to take away the laptop which was
placed on the table, in order to take away the laptop, the
accused passes through the open window then he went to
NO TRESPASSING WHEN THE ACCUSED ENTERED WITH the table where the laptop was placed. Before he could
THE CONSENT GIVEN BY THE BOARDER IN THE HOUSE take away the laptop, the occupant caught him. What is
WHO WAS HIS MISTRESS the crime committed?
- The crime committed is trespass to dwelling. – He
- Any member of the household is presumed to have was not yet able to pick up the laptop. His overt act
authority to extend an invitation to enter the house would merely indicate trespass to dwelling.
- In one case, even the consent extended by a girl 12 years - But if he were able to pick up the laptop then the
old, an inmate thereof, was held sufficient permission to crime would be attempted robbery.
enter (US vs. Dulfo, 11 Phil 75) - If he were able to get out of the house safely, then
that would be consummated robbery.
QUALIFIED TRESPASS TO DWELLING EX: If he was only able to remove a portion of the wall
but before he could enter, he was caught by the roving
- Penalty is higher if the entrance is done by means of
barangay tanod. What is the crime committed?
violence
EX: The occupant is boxed by the offender, the crime - Attempted trespass to dwelling – the overt act of
removing a portion of the wall was still connected to
is qualified trespass to dwelling.
trespass to dwelling and not to robbery
MUST VIOLENCE REFER TO PERSON ONLY?
ACTS WHICH MAY JUSTIFY THE ENTRY OF ANOTHER
- Violence does not refer only to person. There could
also be violence to force upon things. PERSON TO ANOTHER PERSONS DWELLING
EX: when the accused loosened the bars of the doors
1. If the entrance to another‘s dwelling is made for the
by means of bolo and screwdriver, qualified trespass
purpose of preventing some serious harm to himself, the
to dwelling was committed.
occupants of the dwelling or a third person
EX: His enemy was chasing him and in order to save his
TRESPASS BY MEANS OF VIOLENCE
life, he went inside another person‘s dwelling against the
1. When the accused closed the door violently and will of the occupant. What is the crime committed?
maltreated the occupants after entry.
2. When the offender cut off the ribbon or string which the o No crime committed
door latch of a closed room was fastened. The cutting of EX of prevent serious harm to occupant: The husband
the fastenings of the door was an act of violence. wanted to stab his wife but the neighbor went inside the
house and held the hands od the husband so that he
THE VIOLENCE OR INTIMIDATION MAY TAKE PLACE cannot anymore cause pain to the wife. Did he commit
IMMEDIATELY AFTER THE ENTRANCE any crime? No
- This is still considered qualified trespass to dwelling 2. If the purpose is to render some service to humanity or
justice
ALL TRESPASSERS ORDINARILY HAVE INTENTION TO - No jurisprudence as to this yet
COMMIT ANOTHER CRIME, BUT IF THERE IS NO OVERT EX: If you saw that your neighbors house is a burning
ACT OF THE CRIME INTENDED TO BE COMMITTED, THE and you knew that he is not inside so you went in and
CRIME IS ONLY TRESPASS TO DWELLING you put off the fire. Or if the fire was big enough, you got
his clothes for him.
EX of intentions to commit another crime: rape the
occupant; steal
3. If the place where entrance is made is a cafe, tavern, inn
- But if there is no overt act then that would indicate that and other public houses, while the same are open.
the other crime that the person is intending to commit, 4. Running after a person who was committing a crime in
the other crime would only be trespass to dwelling your presence
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EX: When someone snatches your phone from you then ―UPON HIS PERSON OR HIS FAMILY‖
you ran after him. The thief went inside a house. It is EX: I will kill your mother and father. There is a threat and the
considered hot pursuit. infliction of the crime of homicide or murder
- CASE: Ppvs Medina, 59 Phil 134 (pg 615, Reyes) - Threatening another with the infliction of an act or wrong
―The accused entered the dwelling of a captain by forcing constitutes a crime or if the act threatened constitutes a
his way through the window.‖ What is the crime committee? crime then grave threats
Trespass to dwelling. EX: ―I will burn your house.‖ Grave threats because the
act of burning a house is arson. ―The infliction of a wrong
―His purpose during that time was not to kill, which constitutes a crime.‖
however when found inside, the occupants who tried to arrest
him, the accused resisted arrest and stabbed the son of the THREAT IS SUBJECT TO A CONDITION, PENALTY
captain, inflicting a mortal wound. In his effort to escape, he HIGHER
also assaulted the captain, his wife and daughter. The son did - When the acts threatened to be committed is subjected to
not die.‖ What is the crime committed? According to the SC he a condition, the penalty would be higher – ―penalty next
committed 3 crimes: qualified trespass to dwelling, frustrated lower in degree than that prescribed by law for the crime he
homicide and less serious physical injuries. His intention here threatened to commit if the offender shall have mad the threat
demanding money or imposing any other condition, even
was not merely to kill but if his purpose was to kill then the
though not unlawful, and said offender shall have attained his
dwelling would have been considered as aggravating. purpose‖
EX: You impregnated your girlfriend. The father of your
281 Other forms of trespass
girlfriend told you, ―If you do not marry my daughter, I
will cut off your head.‖ What is the crime threatened to
EX: You have a property and then you fence it. What is
you? Either murder or homicide. What is the condition?
the purpose of fencing your property? So that no one can
You marry the daughter.
enter. You placed a ―No Trespassing‖ sign but still
- Penalty is not fixed because it depends on the crime
someone went in.
threatened
- If the offender has attained his purpose – penalty is one
ENTERING A WAREHOUSE MAY BE TRESPASS UNDER degree higher than the penalty imposed for the crime
THIS ARTICLE threatened
- An example of ―closed premises‖ EX: If the crime threatened is murder and he has attained
EX: There is an empty warehouse with a prohibition ―No his purpose, the penalty for grave threats would be
Entry‖ but still the person went it. The crime is other reclusion temporal
forms of trespass. - If the offender was not able to attain his purpose –
penalty is 2 degrees lower
PROHIBITION TO ENTER MUST BE MANIFEST OR
KNOWN
GRAVE THREATS NOT SUBJECT TO ANY CONDITION
- Put a sign ―No Trespassing‖
- The ―No Trespassing‖ sign is one which makes it a crime - Penalty is arresto mayor and fine not exceeding 500
283 Light Threats - If the act threatened is a crime, that would constitute
grave threats under Art 282 and the grave threats could
be with or without condition
- A form of blackmailing and another form of extortion
- If the threats uttered is done in the pursuit of anger but
EX: I will kill you if you do not give me this amount of
the accused did not persist in the idea involved in his
money.
threat the crime would be other light threats
- CASE: PpvsHao Chao, CA, 54 OG 5334 (pg 625, Reyes) - If the act threatened is not a crime, that be would light
The accused threatened to report the victim to the BIR for threats under Art 283 if there is any condition or other
tax evasion if they would not give the offender 1000php. light threats under Art 285 if the same is not subjected to
any condition
BLACKMAILING MAY BE PUNISHED UNDER ART 283
EX: A threatens B with accusation or exposure, if B does CAN THREATS BE COMMITTED EVEN IF THE PERSON TO
not give a certain amount. WHOM IT IS DIRECTED IS ABSENT?
HARM THREATENED MUST BE FUTURE - Yes there could be grave threats even if the person to
whom it is directed is not present
EX: If you do not give me money, if you will not do this, I EX: ―Where is your father? Because I will cut off this
will kill you. neck.‖ Your father is not there but a crime is not
committed.
- If the harm is immediate and not future, for example: the
offender demanded for your money, the crime committed
is not grave threats but robbery
Q: What crime is committed when the father says, ―Marry my Q: Can there be grave or light threats when the
daughter otherwise I’ll kill you.‖ subject of the threat is not around? For example, if
one says ―Hey when your dad arrives, tell him that if
A: GRAVE THREATS. you do not leave this house I‘ll behead all of you, I‘ll
burn this house!‖. The father here is not around. Can
Q: If he says, ―Marry my daughter otherwise I’ll file a case to
there be grave/light threats? A: Yes.
disbar you on the ground of immorality‖?
3. By orally threatening to do another harm not
A: LIGHT THREATS. In light threats, there is also a threat
constituting a felony.
to commit a wrong which does not constitute a crime.
Article 286. Grave Coercion
It is not grave threats because in grave threats the act
threatened must constitute a crime. Here, the act Elements:
threatened does not constitute a crime. It does not also 1. That the person prevented another from doing
constitute a wrong because it is the right of every person something not prohibited by law, or that he compelled
to file a case. him to do something against his will, be it right or
wrong.
People vs. Hao Chao
2. That the prevention or compulsion be effected by
The accused were convicted of light threats for asking
violence, threats or intimidation and
money in the amount of P1,000 with the threat that
3. That the person that restrained the will and liberty of
they would file a tax evasion case against the victim.
another had not the authority of law or the right to do
The accused were convicted of light threats.
so, or in other words that the restraint shall not be
made under authority of law or in the exercise of any
TAKE NOTE:
lawful right.
LIGHT THREATS GRAVE THREATS
There are two keywords here: prevent and compel.
the act threatened is a wrong the act threatened is a wrong
but does not constitute a and constitutes a crime 2 Kinds of Grave Coercion:
crime.
1. The offender prevents another from doing a lawful act
LIGHT THREAT MAY ALSO AMOUNT TO either by violence or intimidation.
BLACKMAILING. 2. The accused compels another to do an act by means of
violence or intimidation, either lawful or unlawful, or
Example: ―If you don‘t give me 1M, I will divulge your right or wrong.
vices to your wife‖, that is blackmailing. That is a
crime. Grave threats and grave coercion are similar but not the same.
This could be grave threats but considering that the There is violence or there is threat or intimidation
acts here, or the words uttered or done were in the
heat of anger, the crime committed is other light
threats.
Example: The drivers stage a transport strike but some of the
Acts punished: drivers did not heed to the call of the other drivers,
accordingly some of them continued picking up passengers.
1. By threatening another with a weapon, or by drawing The striking drivers stopped them and threatened them that if
such weapon in a quarrel unless it be in lawful self- they will not stop (from picking up passengers) the offenders
defense. would harm them. Or some of them would throw stones or
2. By orally threatening another in the heat of anger even burn tires in the middle of the road, so as to compel and
with some harm (not) constituting a crime, without prevent those drivers who aren‘t sympathizing with them
persisting in the idea involved in his threat. from driving. What crime is committed?
A:They can be charged with grave coercion because they Example: The police officer saw another person in the
prevented the other drivers from driving by means of violence, act of committing a crime and so the police officer
threats, intimidation. arrested the person. But the latter resisted. And so the
policeman compelled the offender and forcibly
Grave Threats vs. Grave Coercion brought him to the police station where he was then
detained. What crime is committed?
GRAVE THREATS GRAVE COERCION
A: None. He is not liable for any crime because it is
If the threat is future Threat must be imminent and with authority of law. Commission of a crime is one
actual. of the legal grounds for arresting a person.
People vs Timoner
Example: One day Mr. X lost his necklace. The next The accused who is a municipal mayor
day he saw Mr. Y using that same necklace that he authorized the fencing of a barber shop which
lost. Mr X took a knife and pointed it to Mr. Y. ―Give has been recommended for closure by the
me back my necklace or else I‘ll kill you!‖ What crime municipal health officer for noncompliance of
is committed? GRAVE COERCION. health and sanitation requirements. Apart from
that, it wasn‘t given a permit to operate because
Not grave threats because in grave threats, the act it was built on a sidewalk. And so the mayor
threatened to be done is not imminent but a future forcible closed it. He was charged with grave
harm. Here, the threat is actual, it‘s on the point of coercion. Is the charge correct?
happening and so it is GRAVE COERCION, not grave
threats. SC: No. Because it was with authority of law. A
mayor can summarily remove or close a
See difference based on the above example: nuisance. Here it is considered a nuisance
because it occupied a portion of the sidewalk.
GRAVE GRAVE ROBBERY And aside from that the mayor acted with good
COERCION THREATS faith and in the performance of its duty.
Mr. X owns the Same with grave If Mr. X pointed
Recent case:
property and he coercion except the knife just to
just wanted to that here, the get the necklace, This involves the cutting of electricity by a power
recover it, but offender intended but he actually company for non-payment of electric bills. The
there‘s no intent to to inflict a future didn’t own it. personnel of the electric company who cut-off the
gain and the threat harm. Meaning there’s power supply were charged of grave coercion.
Does it constitute grave coercion? A: Look at the
is imminent. intent to gain.
case of Barbasa vs Tuquero, 575 SCRA 102
TN that the rationale behind penalizing grave The items taken are used to There is no loan.
coercion is to prevent people from taking the law pay off the loan.
in his own hands.
Q: Suppose that the lessor locked the room while the (Judge D: But if you are the
tenant was away. What crime is committed? counsel for the plaintiff, you
better file a case for Robbery to
A: No crime, because there is no grave coercion when
intimidate the accused, and just
there is no violence, intimidation or threat.
leave it to the fiscal to determine)
There are instances when the act of preventing another would
constitute another crime:
UNJUST VEXATION
1. A public officer who by means of violence, threat or
intimidation prevents the ceremonies of any religion. Q: What about if the taking of the property is without
- Interruption of Religious Worship. violence but by misrepresentation, or deceit.
2. A public officer not being authorized by law, compels a Example: ―Bai, may I borrow your laptop I just have
person to change residence without any authority of law. to work on something‖. You were allowed to borrow
- Expulsion but when asked to return it you withheld the laptop
saying you‘re not gonna return it, instead you‘ll apply
3. A creditor who would kidnap or detain a debtor in order to it to his debt. What crime is committed?
compel him to pay his debt.
- Kidnapping for ransom. A: Unjust vexation. Unjust vexation also covers any
act which is irritating, annoying and vexing. Here it is
Note: Grave coercion is one of the crimes against liberty and not light coercion because light coercion presupposes
security. violence.
Article 287 Light Coercions Touching the private parts when done in public, is unjust
Elements: vexation because it negates lewd design. When it is with lewd
1. The offender must be a creditor design, it is acts of lasciviousness.
2. He seizes anything belonging to his debtor
3. The seizure of the thing be accomplished by means of Example: If Justin Bieber holds a concert and the
violence or a display of material force producing person behind you, instead of just dancing in his
intimidation place keeps moving back and forth. What crime is
4. That the purpose of the offender is to apply the same committed?
to the payment of his debt.
A: That could be Unjust Vexation.
KIDNAPPING FOR LIGHT COERCION
RANSOM
Unjust vexation–any act which causes annoyance/ irritation/
The person detained is the When instead of detaining the vexation/torment/distress/disturbance; so the definition is
debtor himself. debtor, the creditor seizes quite broad;
anything belonging to his
debtor for the purpose of Example, touching of private parts in public; If done in private
applying the same to the then that would be acts of lasciviousness.
payment of the debt.
When the property of the debtor is taken thru violence of the
creditor to pay off a loan, that‘s light coercion; but it is taken
through deceit or misrepresentation, then that would be unjust
vexation.
In both crimes, taking is done by means of violence or Art. 290. Discovering secrets thru seizure of correspondence
intimidation.
-thru seizing letters/papers and reveal the contents thereof
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Exception: does not apply to parents/guardians/persons In robbery, the violence/intimidation or threat must be
entrusted with custody of minors with respect to the present or must be used immediately before or during the
papers/letters of the children/minors under their custody nor actual taking of the property, because if during the taking
to spouses as between them. there is no violence, there is no threat or intimidation, the
crime is not robbery but what is committed is theft.
There‘s a case, the husband suspected his wife of having an
affair, the wife forcibly opened the drawer of the husband‘s Example: Suppose you are walking while using your
office, and saw pictures/documents showing that her husband cellphone, suddenly somebody poke a knife behind you
has another woman, now she filed an administrative case and told you to give your cellphone or you will die, the
against her husband. Issue, are the docs/papers presented by crime here is robbery, since the threat was made
the wife be used as evidence against the husband? Look at this immediately before the taking.
case Zuluetavs CA GR 107383
General rule: in robbery with violence/intimidation
Art. 291. Revealing secrets with abuse of office (codal) against persons, the violence/intimidation must be
present immediately before or during the taking.
Art. 292. Revelation of industrial secrets (codal)
(threat in robbery is absorbed since the same is an
TITLE X. CRIMES AGAINST PROPERTY element)
Art. 293. Who are guilty of robbery However, if the threat/violence is made after the unlawful
taking, then there could be 2 crimes committed.
- With intent to gain, shall take any personal property
of another by means of violence/force/intimidation Exception: when killing occurs by reason or on occasion of
or using force upon anything. robbery, the crime committed is robbery with homicide
even if the taking is already complete.
Now there are 2 kinds of robbery:
More situations:
1. Robbery with violence/intimidation of persons
Your loop earrings were snatched. They were pulled from
2. Robbery with force upon things your ears. Crime? – Robbery because there is violence.
-offender here must be inside the building; If you were texting and it was snatched. Crime? - Theft. There is
no violence, intimidation or threat (VIT) during the taking.
Notes:
If you were texting and when you saw the hand of the
In theft, the taking is complete the moment the offender offender, you held to your cellphone tightly, and fell to the
has possession/custody of the personal property; the ground. Crime? – Robbery. There is violence because you sustained
same rule is applicable to robbery with injury.
violence/intimidation of persons;
Art. 295. Robbery with violence against or intimidation of
However it is different in robbery with force upon things, persons
in order for it to be consummated, the offender must also
The violence or intimidation should be present
be able to get out of the building otherwise it will only be immediately before or during the taking.
frustrated robbery with force upon things; unlike in theft, Threat, intimidation, violence, or physical injuries
there is no such thing as frustrated theft. (slight and less serious physical injuries only) are
absorbed in ROBBERY.
There can be robbery even if the item is stolen or if the
item is a prohibited item or a contraband such as shabu; SPECIAL COMPLEX CRIMES in this Article:
hence the victim need not be the owner of the item stolen. – a single indivisible offense with 1 specific penalty. (Art 48
does not apply)
(US vsAlbao 29 PHIL 86)
1. Robbery with Homicide
Another element of robbery is intent to gain, the same is
Homicide is used in its generic sense. It includes
presumed when the taking is unlawful. parricide, infanticide, murder, or multiplemurder.
There is no such crime as robbery with multiple Case: A robbery victim, aside from being raped, was also
homicide. killed. SC: Crime is Robbery with Homicide, and the rape is
the person killed could be the robber, victim, law considered as aggravating. (Pp vs Timple 238 SCRA 52)
enforcers, or bystanders
killing could be intentional or accidental 3. Robbery with Intentional Mutilation
Even if the killing happenedimmediately before, same concept: mutilation could occur
during the actual taking or even after the taking of the immediately before, during or after the
property – as long as the killing has connection with taking
the crime of robbery - - the crime is robbery with
homicide. 4. Robbery with Arson
Prosecution has to prove and allege all the elements
of both robbery and homicide 5. Robbery with Serious Physical Injuries
Refers to those under par 1, Art 263: when
Ex: After robbing the bank, the 4 robbers went out and then the victim becomes insane, blind, deaf
engaged in a shoot-out with police officers. In the course of the ―by reason or on occasion of such robbery‖ –
fire-fight, one of the policemen died. Crime? – Robbery with as long as there is a connection with the
Homicide. robbery
Suppose in the same scenario, If a bystander was killed. Penalty for Robbery depends on the seriousness of
Crime?Robbery with Homicide. the injuries inflicted.
Par 4 of Art 294: ―if the violence or intimidation
Same scenario, the robbers boarded a vehicle and ran over a employed in the commission of the robbery shall have
pedestrian while being chased by the police. The pedestrian been carried to a degree clearly unnecessary for the
died. Crime? – Robbery with Homicide. This could be commission of the crime, xxx―
committed accidentally. - ex: after taking the item, the robbers hogtied the
victim. The act of hogtying the victim is already
Same scenario, one person was killed and 10 pedestrian were unnecessary because they have already taken the
injured. Crime?Robbery with Homicide. property.
Same scenario, 4 pedestrian died. Crime?Robbery with ―xxx-or when the course of its execution, the offender
homicide. Other deaths/homicide are absorbed. shall have inflicted upon any person not responsible
for its commission any of the physical injuries
Pp vs Sorela, Jr (6/15/08): As long as the intention of the felons covered by sub-divisions 3 and 4 of said Article 23‖
was to rob, the killing may occur before, after or during the -victim of the physical injuries should not be a fellow
robbery. It is immaterial that death would supervene by mere robber.
accident, or the victim of homicide is other than the victim of
robbery, or that 2 or more persons are killed. It is likewise not Par 5 of Art 294: Simple Robbery (this is the general
necessary to identify who among the conspirators inflicted the rule as explained already) - The violence or
wound. Once a homicide is committed by reason or on intimidation should be present immediately before
occasion of robbery, the crime committed is the special or during the taking. The threat, intimidation,
complex crime of Robbery with Homicide. violence, or physical injuries (slight and less serious
physical injuries only) are absorbed in ROBBERY.
2. Robbery with Rape
By reason or on occasion of robbery, the latter is
accompanied by rape
The main intention of the accused should be robbery.
Otherwise, there will be 2 crimes – rape and robbery.
PP vs. Opero, 6-11-1981
Just like Robbery with Homicide, in Robbery with
Rape, the other ‗rapes‘ or counts of rape are absorbed.
They are not considered aggravating. (Pp vs Regala After robbing the victim, the victim was hog-tied and
GR 130508, Pp vs Sultan 4/27/00) so he could not shout, a ―pandesal‖ was stuffed into his
SC: there is no legal basis for considering the other mouth. The victim died of choking. What was the crime
rapes as aggravating because Art 14, unlike Art 13, commited?
there are no analogous circumstances.
According to the SC, the crime committed is robbery
with homicide.
Rape with Homicide If the offenses mentioned in subdivisions three, four, and five
of the next preceding article shall have been committed in an
In rape with homicide, the victim of the killing could uninhabited place or by a band, or by attacking a moving
also be the victim of rape, or it could be another person. train, street car, motor vehicle or airship, or by entering the
passenger's compartments in a train or, in any manner,
For example, the accused is raping the wife. While the taking the passengers thereof by surprise in the respective
accused is raping the wife, the husband of the rape victim conveyances, or on a street, road, highway, or alley, and the
arrived. The accused stabbed the husband? What crime or intimidation is made with the use of a firearm, the offender
crime is committed? shall be punished by the maximum period of the proper
penalties
The crime committed is rape with homicide, because
the killing is connected with the commission of the crime of Article 295 does not apply to cases of robbery with homicide,
rape. or robbery with rape or robbery with serious physical injuries
(under par. 1, Article 263).
Primary Intention
Reason: Article 295 mentions subdivisions 3, 4 and 5
Take note that in the crimes of robbery with rape, of Article 294, omitting subdivisions 1 and 2 which refer to
robbery with homicide, robbery with arson, the primary robbery with homicide, robbery with rape, robbery with
intention of the accused is to rob. intentional mutilation, and robbery with serious physical
injuries.
If the primary intention of the accused is to kill and
the taking of the property of the victim is a mere afterthought,
there are two crimes committed – murder or homicide (as the Art. 296. Definition of a band and penalty incurred by the
case may be) and theft. members thereof.
Both crimes involve extortion. Just like kidnapping for When any of the arms used in the commission of the
ransom, grave threats and blackmailing. offense be an unlicensed firearm, the penalty to be imposed
upon all the malefactors shall be the maximum of the
When the giving of the money is voluntary, that would be corresponding penalty provided by law, without prejudice of
bribery. the criminal liability for illegal possession of such unlicensed
firearms.
When the giving of the money is due to intimidation or force,
that is robbery.
stabbed him. What is the liability of B, C and D as regards the The crime committed is robbery. The offender here
killing? compels another to sign a document purportedly showing
that a property has already been transferred to him.
They are liable. Although the killing was not agreed
upon, the killing was logically connected to the crime agreed Suppose the victim is killed so that he could not file a
upon (robbery). case for annulment of contract, for example, the crime is
robbery with homicide.
Illustration II – not logically connected:
The document here could be public or private
A, B, C, and D agreed to rob Ms. X. Their agreement was only
document.
to commit the crime of robbery. But suppose Mr. A raped Ms.
X. What is the liability of B, C and D as regards the rape? What distinguishes grave coercion from robbery under Art.
298, is the ―intent to defraud‖.
If they are only three (3), only the accused who
actually committed the rape is liable. The others are only Example, Mr. X bought a parcel of land from Mr. Y.
liable for the crime of robbery. Because the crime of rape He has already paid the purchase price, but Mr. Y refused to
cannot be considered logically connected to the crime of execute the deed of sale. Mr. X got angry, took his long bolo,
robbery agreed upon. went to Mr. Y and asked the latter to sign the deed of sale
otherwise he would kill him. Mr. Y signed. What was the
If they would constitute a band, ALL shall be liable crime committed?
for all the crimes committed even though such crime is not
logically connected to the crime agreed upon. The crime committed is grave coercion because there
is no intent to defraud.
Unless, the conspirator who did not participate, tried
to prevent the commission of such crime which was not Art. 299. Robbery in an inhabited house or public building
agreed upon. or edifice devoted to worship.
The crime is special complex crime of attempted The crime committed was robbery with homicide. So
robbery with homicide or frustrated robbery with homicide. as your legal basis, you give the elements of robbery and add
that, when by reason or on occasion of robbery somebody is
Art. 298. Execution of deeds by means of violence or killed, the crime is robbery with homicide. Therefore, the
intimidation. crime committed is robbery with homicide.
So, any person who, with intent to defraud another, Article 299
by means of violence or intimidation, shall compel
him to sign, execute or deliver any public instrument - In Robbery with Force upon Things, for the offender
or documents, shall be held guilty of robbery. to be convicted of such crime, he must be able to enter
the building. And upon entering the building, he took
Example, Mr. X forced Mr. Y to sign a document properties therein.
purportedly showing that Mr. Y has sold his parcel of land to - For instance, the accused removed a portion of the
Mr. Y, when in fact, Mr. Y did not. He was just forced to sign wall and inserted his hand into the whole and took
the document. What is the crime committed? away valuable items? What the crime?
THEFT and not Robbery because he did not even if closed, contiguous to the building
enter into the building. and having direct connection therewith.
- 2 Kinds of Robbery with Force Upon Things: The term "public building" includes every
1. Robbery in an inhabited place building owned by the Government or
2. Robbery in an uninhabited place belonging to a private person not included
There‘s really no substantial used or rented by the Government, although
difference between the two with temporarily unoccupied by the same.
respect to the manner of
committing the crime, only with the Modes of committing Robbery with Force Upon Things
penalty.
- Article 299 – Robbery committed in an inhabited
In robbery in an uninhabited
house or public building or edifice devoted to
building, it has a lesser penalty
religious worship
compared to robbery in an
These building, structures have higher
inhabited building.
penalty.
Article 301 Any armed person who shall commit robbery in an
inhabited house or public building or edifice devoted to
- Inhabited house religious worship, shall be punished by reclusion
Inhabited house means any shelter, ship or temporal, if the value of the property taken shall exceed
vessel constituting the dwelling of one or 250 pesos, and if:
more persons, even though the inhabitants o The malefactors shall enter the house or
thereof shall temporarily be absent building in which the robbery was committed,
therefrom when the robbery is committed. by any of the following means:
Under 2nd par, All interior courts, corrals, 1. Througha opening not intended for entrance or
waterhouses, granaries, barns, coach-houses, egress.
stables or other departments or enclosed The offender did not use the door. He
places contiguous to the building or edifice, could have entered through the window
having an interior entrance connected or he used a ladder.
therewith, and which form part of the whole, 2. By breaking any wall, roof, or floor or
shall be deemed dependencies of an breaking any door or window.
inhabited house, public building or building The door itself must be broken. Not just
dedicated to religious worship. the doorknob. It must be an outside
Dependency (extension), part of the door (the one which leads us outside). If
house?Because if not, it is not not broken it would just be theft.
robbery in an inhabited house or 3. By using false keys, picklocks or similar tools.
public building. False key includes original key stolen
The garage, if it is contiguous to the from the owner and used in opening a
building having an interior door.
entrance connected therewith and it 4. By using any fictitious name or pretending the
forms part of the whole house, that exercise of public authority.
can be considered as inhabited. He enters the building by pretending or
Why is it important to know using any fictitious name or exercise of
whether it is inhabited or public authority.
uninhabited? For example, someone pretended to be
Because the penalty is higher an officemate of your boss/employer
when robbery is omitted in an and instructed you to give him your
inhabited place. employer‘s laptop or other gadgets
Orchards and other lands used for because it will be used in the office.
cultivation or production are not included in What is the crime committed? ESTAFA.
the terms of the next preceding paragraph, Because there is deceit.
If you just enter the farm and not gather fruits once inside, that 310 Qualified theft
is other form of trespass. But if you gather some fruits, that is
theft. PENALTY IS TWO DEGREES HIGHER
- Provides for qualifying aggravating circumstances
―Theft is committed by any person who, with intent to gain but - Penalty is higher by 2 degrees than that prescribed in Art
without violence against or intimidation of persons nor force 309
upon things, shall take personal property of another without
the latter's consent.‖ THEFT IS QUALIFIED
1. If the theft is committed by a domestic servant
JOY RIDE OR USING CAR OF ANOTHER TO LEARN HOW
TO DRIVE IS SUFFICIENT GAIN EX: If you have a new yaya, you told your wife ―Our yaya is
- Ppvs Fernandez, CA case, 38 OG 985 new, watch over her since she might steal from us.‖ A few
- The owners of the house were not around so the driver days later, she stole some of your belongings. What is the
used the car and let his girlfriend ride the car with him. Is crime committed? You did not trust her. Why would it be
there theft? There is theft because they derived utility, qualified theft? Even if you do not trust but the fact that she is
satisfaction, enjoyment, and pleasure, or what amounts to a domestic servant would qualify the crime to qualified theft.
the same thing, real gain. This is equivalent to gain.
- Referring to above example, If you were driving it and 2. If the theft is committee with grave abuse of confidence
you caused an accident. Can you hold the insurance
liable? Yes because that is considered as theft. (Villacortavs There must be proof of abuse of confidence. That the offender
Insurance Commission, 100 SCRA 407) (AbuevsFieldmans has confidence in the accused and their confidence has been
Insurance, 124 SCRA 618) gravely abused.
- Joy ride is considered theft EX: Teller of a bank, credit collector
Estafa
RETURN OF THE ITEM, HOW IS IT CONSIDERED Qualified thef
- Mitigate only – analogous circumstance of voluntary
surrender or voluntary plea guilty It must be proven that the offended party has reposed his
confidence on the accused, that the trust and confidence has
PRESUMPTION AS TO POSSESSION OF STOLEN been gravely abused. If there is no proof that you trusted that
PROPERTY person, the crime is merely simple theft.
- Possessor of stolen property is presumed to be the thief
- Concept is similar to falsification In case of doubt, the same shall be presumed in favor of the
accused. Between simple theft and qualified theft, which is
EX: The laptop that you are bringing is stolen. You are more favorable? Simple theft.
presumed to be the thief. If that is a stolen property, then you
are presumed to be the owner. CASE: PpvsPuig, August 28, 2008
EX: Not all motor vehicles are covered by RA 6539. If these motor
Value of the thing taken- 2M vehicles are taken as the subject of theft, the crime committed
Penalty –the same shall not exceed 20 years – the is qualified theft. For those motor vehicles that do not fall
maximum penalty shall be termed as prision mayor or under those enumerated in RA 6539, the crime committed
reclusion temporal would still fall under qualified theft.
Grader
WHEN THERE IS NO EVIDENCE OF VALUE OF PROPERTY Bulldozer
STOLEN Road rollers
It is presumed that the value of the item taken is P5.00 Tractor
EX: Your bicycle was stolen and you were not able to prove the B. Mail matter, or
value or unable to present a receipt, it would be presumed that
its value is P5.00. What is the crime committed by a postman who opened a mail
matter and took away the contents. What is the crime
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committed? If the mail matter came from the US and it other forest products shall be punished by the penalty under
contained dollars. The postman then got the dollars. What is Art 310, in relation to Art 309
the crime committed?
Qualified theft – if you want a higher penalty then file ANTI-CATTLE RUSTLING LAW OF 1974 (PD 533)
this case because it would be 2 degrees higher Cattle rustling is the taking away of large cattle with or
Infidelity on the custody of documents without profit, with or without violence.
Falsification – if it involves postal money order that was
falsified Large cattle shall include the cow, carabao, horse, mule, ass, or
other domesticated member of the bovine family.
If the amount was $200. If converted into peso so P8, 000.00+.
Refer to 309, so if it was simple theft – prision correctional in its EX: If your Persian cat was stolen. That is only simple theft. A
medium and maximum. 2 degrees of prision correctional in its cat is not part of the large cattle definition.
medium and maximum would be imposed – SOLVE.
ANTI-FENCING LAW (PD 1612)
C. Large cattle It is committed when there is robbery or theft. The penalty is
the same with theft under Art 309.
Repealed already by PD 533 – the taking of large cattle, with or
without violence 311 Theft of the property of the National Library and
National Museum
4. If the property consists of coconuts taken from the Penalty here is higher. There is no value mentioned here
premises of a plantation unlike in ordinary theft. So, regardless of its value – it has a
EX: If you took a coconut. The price of one is for P25.00. The fixed penalty
penalty imposed if it would be simple theft is arresto mayor
(Art 309), so two degrees higher – prision mayor 312 Occupation of real property or usurpation of real rights
in property
It should come from a plantation. Not from the backyard of ―Any person who, by means of violence against or
your neighbor who has 1-2 coconut tress. intimidation of persons, shall take possession of any real
property or shall usurp any real rights in property belonging
The coconuts must be taken from the tree within the to another‖
plantation. If the coconuts were already taken from the tree
and placed outside the plantation, the crime would only be EX: Someone enters your property, you call out his attention
simple theft. but then the person points a gun, knife or long bolo at you. So
there is violence. The crime committed is violation of Art 312.
5. If the property stolen is fish taken from a fishpond or How do you eject? You go to court, file a case for forcible entry
fishery against the intruder.
Why would it be qualified theft if you take property from a The crime is without prejudice to the filing of another crime
plantation or fishpond? It is so hard to watch over these involving the violence executed by the offender. So he can be
properties. charged with grave threats, or with physical injuries if there is
violence. – An example of a two-tiered penalty
6. If property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, 313 Altering boundaries or landmarks
vehicular accident or civil disturbance ―Any person who shall alter the boundary marks or
monuments of towns, provinces, or estates, or any other
EX: There is fire and you remove your belongings from your marks intended to designate the boundaries of the same‖
house. When you left it behind, a person takes away some if it.
The crime committed is qualified theft. If you think that a monument has encroached your property,
what is the proper thing to do? Do a relocation survey and
EX: When an accident occurs at Manipis, the people there there must be a geodetic engineer. If you do it on your own,
would kill the victim so that they can take away their property. you commit the crime of Art 313.
That is robbery with homicide.
314 Fraudulent Insolvency
TIMBER SMUGGLING FROM, AND ILLEGAL CUTTING OF ―Any person who shall abscond with his property to the
LOGS IN, PUBLIC FOREST AND FOREST RESERVES ARE prejudice of his creditors‖
PUNISHED AS QUALIFIED THEFT BY PD 705
If you cut trees in the kalasangan, that is violation of the Offender here is a debtor and he abscond with his property in
Forestry Code (PD 705) but the penalty is the same with order that his properties could no longer be reached by his
qualified theft. The cutting, gathering, or collecting timber or creditors.
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possession.
The term ―abscond‖ includes disposing or selling of real
property to defraud the creditors. Example: Contract of Example: Mr. X found a
Lease. If you are renting gold bar but he wasn‘t
It is not necessary that the debtor be declared as bankrupt. It is
a book for 1semester, the sure if it was a real gold.
enough that he has loans and he absconds with his property in
order to prejudice his creditor. So that he cannot anymore be owner cannot just take And so he asked Mr. Y to
reached by the creditors. the book away from you bring the gold bar to a
before the end of the pawnshop to have it
July 28, 2016 semester. The possession examined and to verify if
Part 21 that you have over the the same is pure gold.
Review:
book is juridical. The latter agreed but
ROBBERY WITH HOMICIDE then failed to return the
Example: You rent a car gold bar. Liability?
- The concept of this is the same with that of Rape with for 1 day or 2 days. The
Homicide. owner cannot just take it Ans. THEFT because the
away from you before nature of his possession
In Robbery with homicide, the victim of the killing could the end of the period is only material or
be different with that of Robbery. The same with Rape agreed upon. You have physical. He does not
with homicide where the victim of the killing could be the right to withhold have the right to
a different person from that who was the victim of possession even against withhold its return to the
Rape. the owner. owner, Mr. X.
Read: People vs Laug, GR No. 178321 October 5, If the possessor fails to If the possessor fails to
2011 return the item to the return the item to the
owner after demand, he owner upon demand, he
THEFT could be held liable for could be held liable for
ESTAFA. THEFT.
- There is a kind of theft wherein the item subject of the
theft is delivered to the offender, because we have
learned that in the crime of theft, the offender takes (You should already be able to distinguish by now possession from
away an item from the owner or possessor. ownership.)
This kind of theft is different because the item is not THEFT ESTAFA
taken away by the offender but is delivered by the
owner or the possessor of the item to the offender. If possession is merely If possession is juridical
material or physical and possession and the
HOWEVER, the kind of possession that the possessor possessor fails to return possessor fails to return
has over the item is merely material or physical upon demand. upon demand.
possession. He doesn‘t have the so called juridical
possession.
Article 315Swindling (Estafa)
JURIDICAL MATERIAL/ PHYSICAL
POSSESSION POSSESSION Elements of estafa in general:
1. That the accused defrauded another
a kind of possession - He is merely the a. By abuse of confidence or
which gives the keeper or the b. By means of deceit or false pretenses
transferee or holder a custodian of the 2. That damage or prejudice capable of pecuniary
property. estimation is caused to the offended party or third
right over the thing
- His possession is
which the transferee may person.
merely an extension
set up even against the of that of the owner.
owner himself. 2 WAYS OF COMMITTING ESTAFA, either by:
- He cannot withhold
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(b) By altering the quality/fineness/weight of anything of any false pretense or abandoning or surreptitiously
pertaining to his art/business; removing any part of his baggage without paying for his
food/refreshment/accommodation.
Notes:
Notes:
-as distinguished in paragraph 1(a), here in 2(b) there is no
obligation to deliver Question: can a check be a subject of theft? Yes, since the check
has a value, hence the amount of the check will be the basis for
Ex: a fish vendor, upon the act selling a particular fish, altered the penalty for the crime of theft. Suppose the stolen check was
its quality, then liable under 1(a); however if the quality of the cashed in the bank and then later on dishonored, see People vs
fish is already altered and making it look like it was never Jacinto.
changed upon selling, then 2(b) applies.
Through any of the following fraudulent means:
(c) By pretending to have bribed any govt. employee without
prejudice to the action for calumny which offended party may (a) By inducing another by means of deceit to sign any
deem proper to bring against the offender; document;
Ex: you want to secure a franchise for a public utility, then a (b) Fraudulent practice to insure success in gambling
fixer approaches you and tells you to give him 200k, 50k for
the franchise and the rest as ―padulas‖, when in fact, there was (c) By removing/concealing/destroying in whole or in part
really no bribe given, you only pretended that you bribed the any court record/files/docs or any other paper
govt. employees responsible for the issuance of the franchise.
Ex: the accused is pretending to be lawyer, asked the clerk of
(d) By issuing a check in payment of an obligation when court for certain documents.
offender had no funds in the bank or his funds are insufficient
to cover the amount of such check; Malversation Estafa by misappropriation
- demand to pay is not Instance where contract of lease has no transfer of juridical
necessary before filing the possession to the lessee:
case in court, IF there is Boundary System – usually used in renting taxis and
CLEAR EVIDENCE OF PUJs
MISAPPROPRIATION by Traffic Code: Transfer of Juridical possession
the offender. But if there is a is not allowed in the boundary system
demand even if there is clear Nature of possession of the jeep driver is
evidence of misapp, the failure of only material possession
the accused to return the item is If such driver fails to return the PUJ or taxi,
considered as a Circumstantial he could be held liable for CARNAPPING,
evidence of misappropriation. not estafa. (Pp vs Bustenera 6/8/04)
(Pp vs Lee 4/11/05)
If the Contract to sell has been novated
**demand need not be in Case: X delivers to Y a gold necklace worth 100k to be sold
writing. It could be oral within 1 month and if not sold, the item shall be returned; if
sold, he is to remit the proceeds. After 1 month, Y failed to
Ex: X delivers to Y a necklace worth 100k to be sold within 1 return the necklace and remit the proceeds. – Crime is Estafa
month and the proceeds shall be credited to X, but if not sold it by Misappropriation. There is abuse of confidence.
shall be returned. Y in his effort to sell the item, contacted A When X sent Y a demand to pay, Y begged to pay for the
and agreed with the latter to sell the necklace within 1 month, necklace within 10 months. X acceded. 10 months later, Y
if not he has to return the same. A did not return the item. Is Y never paid. Estafa was filed. Is Y liable?
liable for estafa to X? SC: if there has been novation or a change of the contract and
No. The agents to whom personal property was entrusted such occurred before the filing of the case in court, the
for sale, conclusively proves the inability to return the novation extinguished the insipient criminal liability of the
same is solely due to malfeasance of a subagent to whom accused. (Guingona Jr vs City Fiscal of Manila; Pp vs Neri 10
the first agent had actually entrusted the property in good SCRA 244)
faith, and for the same purpose for which it was received; In the case, the first contract was a Contract to Sell/Agency to
there being no prohibition to do so and the chattel being Sell. But they changed the contract to a Contract of Sale.
delivered to the subagent before the owner demands its TN: novation must occur prior to the filing of the case in court.
return or before such return becomes due, we hold that
the first agent cannot be held guilty of estafa by either BP 22 -AN ACT PENALIZING THE MAKING OR
misappropriation or conversion. The abuse of confidence DRAWING AND ISSUANCE OF A CHECK WITHOUT
that is characteristic of this offense is missing under the SUFFICIENT FUNDS OR CREDIT AND FOR OTHER
circumstances. PURPOSES
In cases of estafa the profit or gain must be obtained by Section 1. Checks without sufficient funds. - Any person who makes
the accused personally, through his own acts, and his or draws and issues any check to apply on account or for value,
mere negligence in permitting another to take advantage knowing at the time of issue that he does not have sufficient funds in
or benefit from the entrusted chattel cannot constitute or credit with the drawee bank for the payment of such check in full
estafa under Article 315, paragraph 1-b, of the Revised upon its presentment,xxx-
Penal Code; unless of course the evidence should disclose
that the agent acted in conspiracy or connivance with the Issue a check to apply on account – you have an
one who carried out the actual misappropriation, then the existing obligation to pay
accused would be answerable for the acts of his co- For value – the obligation is contracted on the time of
conspirators. If there is no such evidence, direct or the issuance of the check (this is what makes it estafa)
circumstantial, and if the proof is clear that the accused
herself was the innocent victim of her sub-agents - xxx which check is subsequently dishonored by the drawee bank for
faithlessness, her acquittal is in order. (Serona vs CA Gr insufficiency of funds or credit or would have been dishonored for the
130423 11/18/02; Pp vs Nepumoceno 4/30/08) same reason had not the drawer, without any valid reason, ordered
the bank to stop payment, xxx
Review:
What is an example of Juridical Possession?
a Contract of Lease
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The drawer has insufficient funds but he issued a stop - Sending of notice of dishonor is very important because
payment order to the bank. The drawer could still be unless the drawee or maker can receive the notice of dishonor,
held liable. the counting of the 5-day period will not run and therefore you
The offender here is only the drawer or the maker. cannot hold him liable. (This is the same principle as estafa by
Indorser can‘t be liable unless in conspiracy with the drawing a check)
maker or drawer.
During the trial, how can the prosecution prove that there
- xxx shall be punished by imprisonment of not less than thirty days was a notice of Dishonor?
but not more than one (1) year or by a fine of not less than but not - If thru post office, let the postman make an affidavit that the
more than double the amount of the check which fine shall in no case signature in the return receipt is the drawer‘s or maker‘s
exceed Two Hundred Thousand Pesos, or both such fine and - SC: Presentation of registry receipt and the registry return is
imprisonment at the discretion of the court. not sufficient to prove that the maker has received notice of
dishonor.
The same penalty shall be imposed upon any person who, having
sufficient funds in or credit with the drawee bank when he makes or
draws and issues a check, shall fail to keep sufficient funds or to
maintain a credit to cover the full amount of the check if presented
within a period of ninety (90) days from the date appearing thereon,
for which reason it is dishonored by the drawee bank.
Suppose at the time of the making of the check he has
sufficient funds, but later on he withdrew the amount Aug. 3, 2016
and at the time was presented it was dishonored Part 22
because of insufficiency of funds. Liable? Yes!
Additional note under Probation!
Elements of violation of BP 22
1. A person makes or draws a check – Under the present amendment of the Probation
Law, crimes against public order are now
2. Check is made or drawn and issued to apply on
account or for value probationable, provided that the penalty imposed
by the court is also probationable.
3. The person who makes or draws and issues the check – The crimes that are not probationable now are
knows at the time of issue that he does not have those crimes against national security.
sufficient funds in or credit with the drawee bank for
Art. 315
the payment of such check in full upon its
presentment
Juridical possession, as compared to material or physical
4. The check is subsequently dishonored by the drawee possession
bank for insufficiency of funds or credit, or would
have been dishonored for the same reason had not the – Juridical possession is a kind of possession which
drawer, without any valid reason, ordered the bank gives the transferee the right to possess the thing
to stop payment. which the transferee may set up even against the
owner. He has superior right in possession over the
―Knowledge of the drawer or maker of the insufficiency of owner himself.
funds at the time of making the check‖ – Example, contract of lease. The owner cannot get
- this is hard to prove because it‘s a mental activity. the property leased before the expiration of the
- Knowledge of insufficiency is PRESUMED. But such contract of lease. The lessee can hold on to his
presumption arises if the check is presented within the period possession over the property even against the
of 90 days from the date appearing thereon. owner himself.
- If after 90 days, you need to present evidence to prove. There – Failure to return the property upon demand (when
will be no presumption by then. the contract has already expired), he could be held
liable for Estafa.
How will the drawer know that the check has been – In material or physical possession, the possessor is
dishonored? merely considered as a keeper or custodian of the
property. He cannot refuse to turn over the
- Notice of Dishonor property when the owner so demands for the
- Under Sec 2, the drawer or maker is given 5 days (estafa 3 same. His possession is merely an extension of that
days) form receipt of notice of dishonor to make good of his of the owner.
check or to pay full value OR to make arrangement with the – He could be held liable for Theft if he fails to return
bank for the full payment of the check. the property upon demand.
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Note: If one is charged with Theft, he could be – Such as contract of deposit. The personal property
convicted of Estafa, and vice versa. is deposited for safekeeping to another person. He
has the obligation to return the property upon
Estafa by Misappropriation demand
– Contract of Lease
―By misappropriating or converting, to the prejudice of another, – Contract of Commodatum
money, goods, or any other personal property received by the offender – In all these contracts, the keeper or receiver of the
property has the obligation to return the same
in trust or on commission, or for administration, or under any other
property
obligation involving the duty to make delivery of or to return the
same, even though such obligation be totally or partially guaranteed Boundary System
by a bond; or by denying having received such money, goods, or other
property.‖ – Arrangement between operator and driver
– In a boundary system involving a public utility
– One of its elements is demand. However, if there is vehicle, if the driver fails to return the car, the
a clear evidence of misappropriation, demand for crime committed is Carnapping.
the return of the property is not necessary. – Why not Estafa? Because under the Traffic Code,
– If there is demand to return and there is failure to the transfer of juridical possession to the driver is
return despite demand, this failure to return is a prohibited.
circumstantial evidence of misappropriation. – The driver is considered, under the Traffic Code, as
an employee or worker or agent of the operator.
Depositor and bank Being a mere agent or employee of the operator,
what is transferred to the driver is merely material
– Governed by the laws of the contract of loan or physical possession. So that, in the event that the
– If the bank fails to pay the depositor, there is no driver fails to return the motor vehicle that is
Estafa, the liability of the bank is merely civil in entrusted to him under the boundary system, he
nature could be held liable for violation of the Anti-
Carnapping law, which is actually theft of motor
Received on commission
vehicle. (PP vs Bustenera , June 8, 2004, citing the case
of PP vs Isaac, 96 Phil 931)
– When the offender is given authority by the
offended party to act as his ―agent‖, such as in the PD 115 (Trust Receipts Law)
contract of agency to sell. Failure to return the
property upon demand is Estafa – The offender received property in trust from the
offended party but fails to return the same
Thing was received for administrator
– Similar with contract of agency to sell
– A person is appointed by the court as Contract of sale on credit
administrator for the estate but he misappropriates
the property or money received by him as – What is transferred is ownership, there is no Estafa
administrator, he could be held liable for Estafa – The obligation of the receiver is merely civil in
because he has the obligation to administer the nature
property and return them to the heirs
Contract of agency to sell
Other contracts
– The breach of contract of agency to sell may give
– Which the offender has the obligation to return. rise to a criminal liability for Estafa
Including quasi-contracts – If the accused failed to return the items taken and
failed to pay as well the amount of the items, and
Quasi-Contracts
demand was sent with threat that should he fail to
return or pay the items, a case for Estafa will be
– When a personal property is erroneously delivered
filed in court. The accused asked for an extension
to another person, that person to whom the
of time to pay on installment.
property the property was erroneously delivered
– Was there a novation of the contract? Yes. From
has the obligation to return it. If fails to return, he
contract of agency to sell, it has now become a
could be held liable for Estafa
contract of sale on installment.
Contract of Bailment – The novation now would extinguish the incipient
criminal liability of the accused, provided that the
novation must have occurred prior to the filing of credit with the drawee bank for the payment of such
the case in court. check
Teller of the Bank 2. by having sufficient funds in or credit with the
drawee bank when he makes or draws and issues a
– If she misappropriates the money that she collected check and fails to keep sufficient funds or maintain
from the depositors, she would be liable Theft. And a credit to cover the full amount of the check until
considering that the teller abused the trust and the time that the check becomes stale
confidence reposed in her by the bank, then she
could be held liable for Qualified Theft. The check becomes stale after the lapse of 180 days, after the
– The nature of her possession over the money is
lapse of 6 months
merely material or physical. The same applies to
credit collectors
Under the negotiable instruments law, the check must be
presented to the bank within the reasonable period of time
from its issuance.
The law did not specify when it should be presented
Theft vs Estafa to the bank but in practice, a check should be
presented within a period of 6 months or 180 days
– If the owner expects an immediate return of the from the date appearing in the check.
thing to him, then that would be theft. What is Beyond the period, it would become a stale check and
transferred to the receiver is merely material or
would no longer be presented to the bank for
physical possession. And that is theft if the
payment
property is not returned
– But if the owner does not expect immediate return If a check is not presented in the bank within the
of property delivered to another person, and the period of 180 days, the drawer would be held liable
same is being misappropriated, that is Estafa for violation of BP 22 if the same is dishonoured but
– If the offender is your domestic servant, it would he could only be civilly liable.
always be Qualified Theft What is meant by the 90 days?
Estafa by Issuance of Check Sec 1, 2ndpara – the 90 days which requires the
presentation of the check for payment is only
– If at the time of the issuance of the check, the necessary for the presumption of knowledge on
offender has received in return money or property the part of the drawer that at the time that he
from the victim because the latter believed that the
issued the check he has knowledge of the
check is funded or has sufficient funds –
simultaneous transaction – there is Estafa through insufficiency of his funds.
deceit. One of the elements of BP 22 is that the drawer
– The offender can extinguish his criminal liability must have knowledge of insufficiency of his
by paying the full value of the check within (3) funds at the time he issued the check.
days after he received the notice of dishonor. This The knowledge of insufficiency is hard to prove because
is some sort of amnesty
that is a mental activity. This is the reason why the law
– If he fails to pay within a period of (3) days, there
created the presumption on the knowledge of
would be a presumption of deceit
– Non-payment of the full value of the check, despite insufficiency of funds.
receipt of the notice of dishonor, would create the When will the presumption arise? These 2 must be
presumption of deceit on the part of the offender. present:
The burden of evidence would be shifted to him, to 1) If the check is presented for payment within a period
prove that there is no deceit. Otherwise, he will be of 90 days from the date appearing in the check
convicted
2) The check is dishonoured
Suppose the payee presented the check beyond
2 ways of committing violation of BP 22: the 90 day period. Does that mean that the
drawer could not be held liable if the check was
1. by making or drawing and issuing any check to
dishonoured?
apply on account or for value knowing at the time of
o NO. The drawer could still be held liable but
issue that he does not have sufficient funds in or
the prosecution has to prove that indeed the
drawer has knowledge of the insufficiency of sufficiently familiar with the signature of the drawer
the funds. HOW? He can prove it by alleging can prove the same. The problem is when the payee is
that the drawer was still able to withdraw 2 not familiar with the signature. It is therefore
days or even a day before he issued the important to present the postman who delivered the
check. Through such transaction, the drawer notice.
must have known of his balance in the bank. - If the drawer receives the notice of dishonour, he
That could be considered as evidence. must pay within a period of 5 days.
o So, Section 2. Evidence of knowledge of - Case: the accused paid the whole amount of the check
insufficient funds. when the case was already filed in the prosecutor‘s
The making, drawing and issuance of a office. It is beyond the 5 day period already. SC said
check payment which is refused by the that accused is relieved from criminal liability
drawee because of insufficiency of funds provided the same is not yet filed in court. (Pp v Lim,
when presented within 90 days from the GR No 190838, Dec 3 2014)
date of the check, shall be prima facie - Even if filed in court, it can be subject to mediation. If
evidence of the knowledge of such they agree that the check be paid, then it can be
insufficiency of funds or credit unless settled without court action.
within 5 banking days after receiving
notice such check is fully paid or the TAKE NOTE:
drawer would make arrangement with
The prosecution should prove who served the notice of
the bank.
dishonour. It could be the drawee bank or the payee. So the
The period of 2 days is equivalent to the
prosecution has to prove that the drawer has actually received
period of 3 days in Estafa. If he can pay
the notice of dishonour. This is very important!
within a period of 5 days from the
receipt by the drawer of the notice of If the recipient is other than the drawer, it must be proved that
dishonour and he immediately pays the the person who received is duly authorized by the drawer to
amountor if he can make arrangement receive the notice.
with the bank, his criminal liability will
be completely extinguished. So, If the check is issued by a corporation, notice to the corporation
payment is a complete defense. is not sufficient. There must be a notice of dishonour to the
TN: the reckoning period is 5 days treasurer to make it liable.
from the receipt by the drawer of the
notice of dishonour. So if he did not Violation of PD 705 – Forestry Code
receive a notice of dishonour, the 5 day
period will not run. - The determination of penalty is the same with
qualified theft.
Why is notice of dishonour important?
Article 316 – Other forms of swindling
- In order for the drawer to be given an opportunity to - There is still deceit here
extinguish his criminal liability as provided by law. - The penalty is lower. Imprisonment and fine.
Aresto mayor in its min and med periods
Who can prove that there is receipt of notice of dishonour?
and a fine not less than the value of the
Who has the burden of proof? How can it be proven?
damage caused and not more than 3 times
- The burden lies with the prosecution. such value.
- It can be proven by showing drawer‘s signature in the
letter. It shall be imposed upon:
- If it was done through postal not personal delivery? 1. Any person who, pretending to be owner of any real
Take note that mere presentation of the postal receipt property, shall convey, sell, encumber or mortgage the
and the return receipt is not sufficient. There must be same.
a person who can testify that it was the drawer‘s - The offender here is not the owner or no longer the
signature. The payee, even if not around but is owner of the real property sold.
- Ex: Double sale. You sold the property to A then sold 5. Any person who shall accept any compensation given him
it also to B. by the time you sold the property to B, under the belief that it was in payment of services rendered or
you are no longer the owner. So you commit other labor performed by him, when in fact he did not actually
forms of swindling. perform such services or labor.
- Or if you mortgage the same property to other
- You received your salary when in fact you did not go
person.
to work. That would be other forms of swindling.
2. Any person, who, knowing that real property is encumbered, - But if you are working in the government and you
shall dispose of the same, although such encumbrance be not only go to work during the 15th and 30th, you submit a
recorded. DTR, what is the crime committed?
- You already mortgaged it then you also sold the That would be FALSIFICATION. ESTAFA
same. through FALSIFICATION because your DTR
- Take note of the word ―knowing‖. is a public document.
- Even if the encumbrance is not recorded. Why is there That would not be malversation because you
deceit here? Because the encumbrance was not made are not the custodian.
known to the buyer. You could also be charged with violation of
ANTI-GRAFT because you caused damage
3. The owner of any personal property who shall wrongfully to the government, undue injury to the
take it from its lawful possessor, to the prejudice of the latter government. You would be liable under para
or any third person. e, causing undue injury to the government.
- Ex: You have cellphone and you pawned it. After you 6. Any person who, while being a surety in a bond given in a
pawned the same, you snatched it and ran away. criminal or civil action, without express authority from the
What is the crime committed? court or before the cancellation of his bond or before being
That would not be theft because you are the relieved from the obligation contracted by him, shall sell,
owner. That would be other forms of mortgage, or, in any other manner, encumber the real property
swindling. (―who shall wrongfully take it from or properties with which he guaranteed the fulfillment of such
its lawful possessor‖) obligation.
- Case: There was one person working in a pawnshop.
The things pawned in such pawnshop were at the - You are familiar with property bond. When you sell
same time pawned by her in other pawnshop. One the property without asking permission from the
time she asked her friend who was working in the court, that would be other forms of swindling.
other pawnshop to get/borrow the same thing
pawned by her because they were auditing. She did ARTICLE 317. Swindling a Minor
not return the thing anymore. That is other forms of Any person who taking advantage of the inexperience or
swindling. emotions or feelings of a minor, to his detriment, shall
induce him to assume any obligation or to give any release or
4. Any person who, to the prejudice of another, shall execute execute a transfer of any property right in consideration of
any fictitious contract. some loan of money, credit or other personal property
If there is a loan on a minor for P500 and he was
- Such as a fictitious contract to defraud creditors. paid only 200 since he is in need of money for
- You owe someone money. In order for you to protect shabu, that is swindling a minor
your properties from attachment, you mortgaged
ARTICLE 318. Other Deceits
your properties to other persons when in fact it was The penalty of arresto mayor and a fine of not less than the
fictitious because there was no consideration. That is amount of the damage caused and not more than twice such
other forms of swindling. amount shall be imposed upon any person who shall
- But if not fictitious because you really mortgaged it to defraud or damage another by any other deceit not mentioned
in the preceding articles of this chapter.
third person, that would be fraudulent insolvency
- Other forms of swindling and other deceits are different
under Article 314. from each other
- This is a catch all provision; If it does not fall under
315,316, and 317 then it is under 318
- Under par. 1, the personal property is removed or - Trains, vessel or watercraft such as pump boats
transferred to another place. It constitutes a criminal
are personal property but are still under
act.
- It does not mean a mortgage property cannot be sold, destructive arson
but there must be consent of the creditor
Any building the burning of which is for the purpose of
Par. 2 - Any mortgagor who shall sell or pledge personal concealing or destroying evidence of another violation of
property already pledged, or any part thereof, under the law, or for the purpose of concealing bankruptcy or
terms of the Chattel Mortgage Law, without the consent of defrauding creditors or to collect from insurance.
the mortgagee written on the back of the mortgage and noted
on the record hereof in the office of the Register of Deeds of - If you burn a building to claim insurance
the province where such property is located.
- Personal property subject to pledge People vs. Malngan
- If a pledged item is sold without the consent of the - Look at the purpose of burning
pledgee then it will constitute a criminal act under par. 2 If the purpose is to kill then it is murder
If the purpose is to destroy the building then it is
arson even if a person is killed
ARSON o There is no arson with homicide
2 laws applicable to arson: If the building is burned to hide the killing then
1. PD 1613 there are two crimes committed.
2. ARTICLE 320 of the RPC - Take note of the instances of destructive arson
321-326 are no longer effective. They are repealed - The bar may ask for 5 instances for destructive
arson
- Destruction of property by the use of fire - Take note of the definition of arson
- Setting fire to the property of another - In arson there could be conspiracy to commit
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arson, one instance where mere conspiracy may be The crime of malicious mischief is committed when damage to
penalized property is deliberately done for the purpose of damaging the
- There are also aggravating circumstances in arson property.
Arson is one crime where you look at the manner of If the damage to property is caused or done due to the
commission to determine attempted, frustrated or
commission of another crime, there is no malicious mischief.
consummated.
- Look at how the crime is committed The damage to property does not constitute malicious
mischief.
Attempted - The offender is caught while burning materials
but has not yet lighted a match then it is attempted arson. EX: Mr X fired at Y. Y was not hit. What was hit instead was
his car. Can X charged with malicious mischief and attempted
Frustrated - If he is able to light or set fire to the rags but it was homicide or murder? No because the damage to the car was a
put off before any part of the building was burned. US vs. result of the commission of another crime which is attempted
Valdez 39 Phil 240
homicide or murder.
Consummated - A part of the building is burned even if it is a
IF NO MALICE, ONLY CIVIL LIABILITY
just a little.
- Setting fire to the contents of a building constitutes
If the damage is done due to or as a result of the commission of
arson even if no part of the building was burned.
If there are documents burned but does not a crime, there is no malicious mischief. But the accused could
include any part of the building then it is still be held civilly liable for the damage. That will be part of his
arson. civil liability.
Your car, parked along the roadside is struck with EX: Your car, a brand new Nissan pickup, there is a design
stone. – Malicious mischief which shows the word ―Calibre‖.The accused when he passed
If the side window of your car is struck with stone by, he had a pentel pen with him and added to the word
and thereafter, took away your car stereo. – Theft Calibre ―45‖. What is the crime committed? Malicious
mischief.
DAMAGING OF PROPERTY MUST NOT RESULT FROM
CRIME
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EX: You car is a 4-wheel drive, there is a mark ―4x4‖. The EX: The lights in the plaza are broken by bystanders. That
accused writes ―=16‖. What is the crime committed? Malicious is qualified malicious mischief.
mischief.
PENALTY FOR MALICIOUS MISCHIEF, SAME WITH
KILLING A PIG IS A FORM OF MALICIOUS MISCHIEF ESTAFA
If the offender after causing damage to the property of another The penalty for malicious mischief is based on the value of the
makes use of the fruit of his crime. property damaged. Just like estafa, the value of the damage
must be stated in the information.
EX: What about if after killing the pig, the offender cooks the
pig? That would be theft. Art 329 Other mischiefs
Art 328 Special Cases of Malicious Mischief MALICIOUS MISCHIEF OTHER THAN THOSE
MENTIONED IN ART 327 AND 328
THESE ARE CALLED QUALIFIED MALICIOUS MISCHIEF
Malicious mischief under 327 gives us the definition of
The cases of malicious mischief enumerated in this article are malicious mischief. 328 mention the penalty for qualified
the so-called qualified malicious mischief. malicious mischief.
different articles of the Revised Penal Code. One of this is committed by S? That is estafa, pretending to be an agent of his
under Art 332. father when in fact she is not. Is he liable? No because the
victim is not his father.
CRIMES INVOLVED IN THE EXEMPTION
Art 332 is applicable only when he offender and the offended
1. Theft party are relatives and their relationship is any of those
2. Swindling (Estafa) mentioned in said article.
3. Malicious mischief
THE EXEMPTION DOES NOT INCLUDE ROBBERY
PERSONS EXMEPTED FROM CRIMINAL LIABILITY
If the crime committed would constitute robbery, the provision
of Art 332 does not apply because Art 332 the exemption is
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line; only applicable to any of the crimes mentioned in this article.
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before same passed into BROTHERS AND SISTERS, AND BROTHERS-IN-LAW AND
the possession of another; SISTERS-IN-LAW MUST BE LIVING TOGETHER AT THE
3. Brothers and sisters and brothers-in-law and sisters-in-law, TIME OF THE COMMISSION OF ANY OF THE CRIMES OF
if living together. THEFT, ESTAFA, OR MALICIOUS MISCHIEF
EX: When you addict brother would still your cellphone and
THERE IS ONLY CIVIL LIABILITY sells it. What is the crime committed? Theft. But is he liable?
No.
No criminal, but only civil liability shall result from the
commission of the crime of theft, swindling, or malicious In exempting circumstance, there is a crime committed but
mischief, committed or caused mutually by those persons. only that the offender is not punished. The offender is required
to face civil liability but not imposed any criminal liability
EFFECT OF DEATH ON RELATIONSHIP BY AFFINITY AS
because he is exempt.
ABSOLUTORY CAUSE
Condition: Should be living together.
Relationship by affinity created between the surviving spouse
and the blood relatives of the deceased spouse survives the If they are living separately then the exemption will not apply.
death of either party to the marriage whichcreated the affinity. Or if the crime is committed is robbery, there is no exemption
(Intestate Estate of Manolita Gonzales Vda. De CarungcongvsPp, because the exemption only extends to the crime of theft,
GR 181409, February 11, 2010) swindling, or malicious mischief.
Even if the husband or the wife is already dead, relationship THIS ARTICLE DOES NOT APPLY TO STRANGERS WHO
by affinity still exists. PARTICIPATES IN THE COMMISSION OF THE CRIME
THE WIDOWED SPOUSE WHO COMMITS THEFT, ESTAFA, Strangers who participate in the commission of the crime are
OR MALICIOUS MISCHIEF WITH RESPECT TO PROPERTY not exempt from criminal liability. They are not covered by the
OF THE DECEASED exemption. They are liable.
To be exempt from criminal liability, it is required that ART 332 APLIES TO COMMON LAW SPOUSES,
STEPFATHER, ADOPTED FATHER, ILLEGITIMATE
1. The property belongs to the deceased spouse; and
2. It has not passed into the possession of a third person CHILDREN, CONCUBINE, PARAMOUR, ADOPTED CHILD
EX: If you are living with someone who is married, they can
―COMMITTED OR CAUSED MUTUALLY‖ steal from you or you can seal from you (vice-versa) and you
are exempt from criminal liability.
EX: D was indebted to F. S, the son of F, without the
knowledge or consent of the latter, went to D and falsely TITLE XI: CRIMES AGAINST CHASTITY
represented to him that F sent him to collect. Believing the
- These are otherwise known as private crimes.
statement of S, D gave him the payment. What is the crime
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LIABILITY OF THE MAN NOTE: In adultery and concubinage, both the wife or the
husband as the case may be, and the paramour or concubine
- Q: What about the man? Can he be held liable for shall be jointly charged.
adultery? A: YES. If he knows that the woman he had
sexual intercourse with is a married woman. It must Kabit of the woman- paramour
be alleged in the information that the man knows that Kabit of the man- concubine
the woman is married.
- Q: Suppose the man is also married and both of them
Note that knowledge is a mental activity. You have knows that they are both married. What crime or
to prove that indeed he knows you are married. (For crimes are committed? Aside from adultery, they can
example if you are colleagues or officemates, most also be held liable for concubinage. Both of them.
likely you know that she‘s married. But if you just
REMEMBER:
met for the first time probably you can be exempt
from liability) - ADULTERY IS NOT A CONTINUING OFFENSE.
Each act of sexual intercourse constitutes one crime of
- The fact that he did not know that the woman is adultery.
married is just a matter of defense because it is
required in adultery that the two must be charged. - CARNAL KNOWLEDGE CAN BE PROVED BY
CIRCUMSTANTIAL EVIDENCE. Example: It can be
- It is very easy to prove adultery. If you get pregnant proved by the fact that the woman is now pregnant;
while your husband is away (ie. an OFW), that would Love letters; text messages; testimony of witnesses
be adultery. that the two accused were seen together in one room.
THE FOLLOWING ARE NOT DEFENSES IN ADULTERY: - IF THE OFFENDED HUSBAND, AFTER KNOWING
The marriage is subsequently declared void. THE UNFAITHFULNESS OF HIS WIFE WOULD
HAVE SEXUAL INTERCOURSE WITH HER, that - This means that the man shall sleep with the woman
would be considered as implied pardon. in another place. If you just rent an apartment or a
townhouse for her but you do not sleep there let‘s say
CONSENT PARDON for a week, a month or a year, there‘s no concubinage.
Given before the act Given after the act The ratio of the framers why it is harder to prove concubinage
than adultery is that, {at the time when the RPC was enacted)
the woman is the only person who can determine who the
- AGREEMENT TO SEPARATE. While the agreement father of her child is. While the man cannot be so sure that he
is void in law, it is nevertheless competent evidence is the father of her wife‘s child. Now we already have DNA
to explain the husband‘s inaction after he knew of his testing that is why these provisions are included in the
wife‘s living with her co- accused. He may be proposed amendments of the RPC.
considered as having consented to the infidelity of the
wife which bars him from instituting the criminal ―Mistress‖
complaint.
- The woman must be taken in as a concubine.
Article 334 Concubinage - In one case, the woman was brought to the conjugal
dwelling because she was treated as an adopted
Elements: daughter. SC: She is not considered a mistress. It is
necessary that the woman is taken by the accused into
1. The man must be married
the conjugal dwelling as a concubine. People vs Hilao
2. He committed any of the following acts:
52 OG 904
a. Keeping a mistress in the conjugal dwelling
b. Having sexual intercourse under scandalous Article 336. Acts of lasciviousness
circumstances with a woman who is not his wife
c. Cohabiting with her in any other place. - What do you mean by lasciviousness/lewdness?
- Refers to obscene lustful, indecent or lecherous act
3. That as regards the woman, she must know him to be
carried on a wanton manner; People vs Dominguez
married.
Notes:
- Example: Suppose the husband goes to Kamagayan
and would have sexual intercourse with a sexual - -Any person who shall commit any acts of
worker of queensland, can he be held liable for lasciviousness upon other persons of either sex shall
be liable for acts of lasciviousness.
concubinage? A: NO. That is the discrepancy of this
- -in this article, there is no sexual intercourse or intent
law. Concubinage is not committed by mere having to rape, because the circumstances therein are the
sexual intercourse with a woman. same in acts of lasciviousness (force/threat/deprived
of reason etc.).
―Having sexual intercourse under scandalous - -Now take note that there is just a minimal difference
circumstances with a woman who is not his wife‖ between acts of lasciviousness and attempted rape,
the only difference is that in the latter, there is intent
to have sexual intercourse with the victim as held in
- Cannot be translated literally.
People vs Cruz g.r. no. 166441.
- -An example of this article is the touching of the
- SC: Having sexual intercourse under scandalous private parts of a woman. Or kissing and touching the
circumstance means keeping a mistress elsewhere breast of the woman. However if these acts are done
and commits acts which are highly reprehensible or in PUBLIC or in PUBLIC VIEW, it would only be
acts that are offensive to public conscience. considered as UNJUST VEXATION; the doing of
these acts in public or in public view would
eliminate/negate lewd designs, hence the acts would
- Example: they appear together in public while holding
only constitute unjust vexation.
hands. - -For example a woman is sleeping, and you touched
her private parts, then that would constitute acts of
―Cohabiting with her in any other place‖ lasciviousness. However if you undress her, and tried
to mount on top, then that would constitute Article 339. Acts of lasciviousness with the consent of the
attempted rape. offended party
- Although taking is motivated with lewd design, Answer: No. Kim was not taken away from her house. There
having sexual intercourse with the victim is not was no solicitation, enticement or cajolery.
necessary. Sexual intercourse is not absorbed
- If there is more than 1 rape, the accused could be The purpose of this law is not to punish the wrong done to
liable for separate rapes. the girl because she consents thereto, but to prescribe
- Ex: Victim was raped 5x. Only 1 rape will make a punishment for the disgrace to her family and the alarm
complex crime of Forcible Abduction with Rape. The caused therein by the disappearance of the one who, is by
rest of the 4 rape incidents are treated as separate her age and sex, susceptible to cajolery and deceit. (US v
crimes. Reyes)
- TN: if the MAIN PURPOSE IS TO RAPE, then the
crime is RAPE. Forcible abduction is absorbed (Pp vs Art. 344. Prosecution of the crimes of adultery, concubinage,
San Pedro, Pp v Toledo 83 Phil 777) seduction, abduction, rape and acts of lasciviousness.
If the victim of the taking away with lewd design is a Private crimes cannot be filed in court except upon
minor below 12 yrs old, the crime is still FORCIBLE complaint of the offended party.
ABDUCTION.
In cases of seduction, abduction, rape or acts of
Can a husband be held liable for forcible abduction? For lasciviousness – this presupposes that the victim is a
example a couple broke up and the husband really wanted minor, the crime could be filed through a complaint
that they get back together. Is there forcible abduction? signed by the offended party, her parents, grandparents,
- No, because there is no lewd design. The crime may guardians.
be Grave Coercion.
In adultery and concubinage, this could only be filed with
Art. 343. Consented abduction. — The abduction of a virgin the offended spouse.
over twelve years and under eighteen years of age, carried This is in an information or criminal complaint,
out with her consent and with lewd designs, shall be signed by the offended party himself or herself.
punished by the penalty of prisioncorreccional in its Adultery – complaint signed by the offended
minimum and medium periods. husband
Concubinage – complaint signed by the offended
Elements: wife
1. That the offended party must be a virgin. If it is filed in court thru an information, that
2. That she must be over 12 and under 18 years of age would be dismissed on the ground of lack of
3. That the taking away of the offended party must be jurisdiction.
WITH HER CONSENT after solicitation or cajolery
from the offender If the offended party has consented or pardoned the act,
4. That the taking away of the offended party must be the case would be dismissed.
with lewd designs. o Pardon is extended after the commission of the act
but before the filing of the case in court because
Cajolery – enticement; coaxing or flattery intended to persuade once the case is filed in court, that cannot be
someone to do something. dismissed by mere pardon of the offended party.
TN! Crimes where VIRGINITY is an element: In seduction, abduction, acts of lasciviousness or rape,
1. Qualified Seduction (SARAL) the marriage of the offender with the offended
2. Consented Abduction party shall extinguish the criminal action and the penalty.
- this provision shall also apply to co-principals,
The abduction here is with the consent of the victim, but accomplices and their accessories
with enticement or cajolery or solicitation. - this shall not apply to gang rape. (where there are
This crime presupposes the accused enticing a minor to several accused and all of them raped the victim)
elope with him
Bar Question:
Kim, 16 years old went home late one evening. Her mother
scolded her. Kim went out of their house and went to her Art. 345. Civil liability of persons guilty of crimes against
boyfriend‘s house Tristan. Tristan‘s mother tried her best to chastity.
send Kim home but the latter refused. That night, Kim slept in
Tristan‘s room and they had sexual intercourse. Kim‘s mother 1. Indemnification
filed a case of consented abduction against Tristan. Will the 2. Acknowledge the offspring (unless the law says not
case prosper? to)
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Article 347: Simulation of Births, Substitution of One Child If the first marriage is void
for Another and Concealment or Abandonment of a Legitimate
Child – The fact that the first marriage is void is not a defense
in bigamy
(A) Simulation of Births
– There must be a judicial declaration of the nullity of
– Example, a childless couple registered the baby the first marriage
as their own, when in fact it was the child of their
helper – There can be no prejudicial question. Even if there is a
pending case for the declaration of the nullity of
(B) Substitution of One Child for Another marriage, there can be bigamy, for so long as there
– Example, ―Mara-Clara‖ has been no judicial declaration of the first marriage
Any person who shall contract a second or PP vs Capili, GR No. 183805, 2013
subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been PP vs Morrego, GR No. 145226, Feb. 6, 2004
declared presumptively dead by means of a judgment
rendered in the proper proceedings – Accused married twice. Why was he absolved? You
read the case!
– Presupposed two (2) marriages PP vs Jarillo, Sept. 29, 2009
Elements
– Prescription of the crime of bigamy
(a) Offender has been legally married Art. 350. Marriage contracted against provisions of laws
– The offender contracted a marriage and he knew at solemnizing illegal marriage ceremony on
the time he contracted the marriage that the performance of illegal marriage.
requirements were not complied with or that there
was legal impediment to the marriage
Ronulovs People, July 2, 2014 – SC said that While Article 352
Art. 351. Premature marriages of the RPC, as amended, does not specifically define a
―marriage ceremony‖ and what constitutes its ―illegal‖
– Already repealed by RA 10655 performance, Articles 3(3) and 6 of the Family Code are clear
Art. 352. Performance of illegal marriage ceremony on these matters… Even prior to the date of the enactment of
Article 352 of the RPC, the rule was clear that no prescribed
Who can be held liable? form of religious rite for the solemnization of the marriage is
required. However, the law sets the minimum requirements
– The solemnizing officer
constituting a marriage ceremony: first, there should be the
– He must be authorized to solemnize marriage
– He was aware that the requisites for a valid marriage personal appearance of the contracting parties before a
were not complied with solemnizing officer; and second, their declaration in the
presence of not less than two witnesses that they take each
If the person who solemnized is not authorized
other as husband and wife.
– He could be held liable for usurpation of official
functions Article 353 - Definition of libel
- Article 353 gives us the definition of defamation.
- Libel is a form of defamation.
July 7, 2016
Part 23 - Although Art 353 states definition of libel, it is not
only applicable to libel. It is applicable to all forms of
Concubinage defamation.
Ex: You are called a corrupt. The crime of being a thief or being - For example, a letter was sent and the envelope was
corrupt is imputed to you. sealed. The letter contains defamatory contents. No libel
because the envelope is sealed.
Ex: You are a killer. There is an imputation of the crime of If it was opened, there could still be no libel if the
murder or homicide. same was sent to the addressee.
But if you sent it to a middleman or a messenger,
Ex: You are called a drug addict. Is using drug a crime? Yes.
there could be libel. Why? Because the person
That is penalized under sec15 or RA 9165.
could read the letter.
Ex: ―Burikatka!‖ The crime of prostitution is imputed to you. - Without publication, defamation will not prosper.
Ex: You are a mistress. The crime imputed is concubinage. 3. That it must be malicious.
- There must be malice or ill-will or intent to injure the
b) imputation of a vice or defect reputation of offended party.
Ex: That person is gay (even if that person is a straight guy). 2 kinds of privileged communication:
The person is a son of a smuggler or a drug lord. It is not a a) Absolute privileged communication
crime but a condition or circumstance. b) Qualified privileged communication – Art 354:
i. A private communication made by any
A corporation can file for libel even if without feelings – it has
person to another in the performance of any
a good will (reputation).
legal, moral or social duty;
Elements:
ii. A fair and true report, made in good faith,
1. There must be an imputation of a crime. without any comments or remarks, of any
judicial, legislative or other official
2. The imputation must be made publicly. proceedings which are not of confidential
- Publication means that it is being heard or known to by a nature, or of any statement, report or speech
3rd person. delivered in said proceedings, or of any
- Ex: A person was called thief. If somebody heard it even if other act performed by public officers in the
he‘s the only one who heard it, that is publication. There is exercise of their functions; and
now imputation and publication.
- This is what we call Element of Publicity. iii. Fair comments on the acts and conducts of
- If you were called in the office of your employer. There public officials or persons considered as
was no other person around except the 2 of you. You were public figures.
called a thief. There is no defamation because there was no
publication. What crime could have been committed? It Does it mean that when the communication is privileged, the
could be unjust vexation. offender could no longer be held criminally liable?
cannot be held criminally liable. The congress has the there could be libel there if there is undue publicity.
sole power of disciplining such congressman or Such as calling for a press conference.
senator. No criminal liability.
- Ex: You have a complaint against the principal. But
- As regards qualified privileged communication, the you published it to let the whole world know about it,
offender could be held criminally liable for any then that is undue publicity. It must be personally
slanderous statements considering that malice is not directed to the principal.
anymore presumed. The prosecution has to present proof
or evidence of actual malice on the part of the offender. 4. The imputation must be directed against a natural or
This is ACTUAL MALICE OR MALICE IN FACT. juridical person or one that is dead.
- In other words, the offended party must be
Considering that malice is presumed the moment the offender identifiable.
utters defamatory words, the prosecution is not required to - Ex: Some of the employees of the BIR are corrupt. It is
present evidence to establish malice. This is the same with not defamatory because the offended party cannot be
presumption of innocence. But the moment the presumption is identified.
gone/lost, he has to prove such evidence establishing malice. - If not named but there are descriptions. Ex: Mayor of
a certain town in the south selling ampao. It is
What is the possible evidence to establish actual malice? Or
identifiable; Such as, ―our incumbent mayor‖.
the accused has ill-will or ill motive?
- A corporation can file for libel even if without feelings
– it has a good will (reputation).
- Proof of ill-will or actual malice or malice in fact:
a) The parties at the time the offender uttered
5. The imputation must tend to cause the dishonor,
or wrote the slanderous statement already
discredit of the person defamed.
have strained relations between them or
prior to the utterance of the slanderous - Naturally if the words are defamatory.
statement.
Reversing the Statement
b) Knowledge of falsity of the statement. - Ex. ―Pagka-bright judnya‖ [sarcastic]
- Ex: You wrote in your facebook (internet libel) that a - Ex. ―Pagka-tarungjudaningasawanimo‖ [sarcastic]
person was charged with rape. You knew that the
charge was already dismissed but you intentionally - Still libellous. Where the comments are insincere and
withheld the information that it was already intended to ridicule rather than to praise the plaintiff,
dismissed just to dishonour that person. the publication is libellous.
- Praise underserved is libel in disguise.
c) There were no efforts exerted to verify the - Includes those intended for humor, when the
veracity of the information language used passed from the bound of playful gist.
- Ex: You are a commentator. Somebody told you that
such person was charged with anti-graft and you did
not exert efforts to verify if it is true or not and you Take note:
just reported it in the radio or tv or wrote an article
about it. The meaning of the writer is immaterial. It is not the intention
of the writer or speaker or understanding of the plaintiff by
- Even if it is a comment on the act or conduct of public which the actionable quality of words is to be determined but
officials, the accused can be convicted of libel because the meaning by which the words in fact convey on the minds
of ill-will or actual malice. Why? because there were of the persons of reasonable understanding, discretion or
no efforts to verify the information received whether candor.
it is true or not.
The accused need not be the author of the defamatory
d) Undue publicity statement. There are instances when the author can be the
- Ex:You filed a violation of anti-graft or rape against a offended person himself.
particular person. You are exercising your duty. But
Privileged nature of the communication Facebook is included under Cyber Crime Act RA 10175
- does away with malice - Cyber Libel
- it does not mean he cannot be convicted but only - It has a higher penalty (1 degree higher)
does away with malice - If one is charged with internet libel, he cannot be
charged with Libel under the RPC Decine vs. DOJ
Another Absolute Privileged Communication is Judicial Feb 18 2014
Proceedings: - The internet is under any similar means
- Allegations in judicial proceedings are absolutely - PM is not probationable, be careful
privileged if they are relevant or pertinent to the
issues Syhunliong vs. Rivera June 4 2014
- Text message could be libel
Comment on the qualification of candidates - Must prove that there is publicity, someone else
- It is privileged must have been using the phone and read it to be
- The mental/moral/physical fitness of candidates considered as publication
of elections may be the object of comment and
criticism The court has the discretion to impose imprisonment or fine
- When Pnoy ran, the comment was that he is Under SC circular AM 08-2008 Jan. 28, 2008
"autistic" - SC encourage the courts to impose the penalty of
- But if it appears that it was with actual malice and fine.
it is defamatory in nature then it is criminal libel
Art 356 Threatening to publish and offer to prevent such 1. That the offender is a reporter, editor or manager of a
publication for a compensation newspaper daily or magazine
2. That he publishes facts connected with the private life of
ACTS PUNISHED another
3. That such facts are offensive to the honor, virtue and
1. By threatening another to publish a libel concerning him, or reputation of said person
his parents, spouse, child, or other members of his family
2. By offering to prevent the publication of such libel for
compensation, or money consideration There could be a fair comment or report on the conduct for acts
of public officers or of those private persons that are
A FORM OF BLACKMAIL considered as public figures or celebrities.
– these are the matters that could be taken into consideration PRESCRIPTIVE PERIOD
by the court in deciding what is the crime committed. Oral defamation (Art 90) – 6 months
Light oral defamation – 60 days
WORDS UTTERED IN ANGER COULD ONLY BE LIGHT
ORAL DEFAMATION 359 Slander by deed
Defamatory words uttered in the heat of anger could only be
light oral defamation. ELEMENTS
1. That the offender performs any act not included in any
Threats uttered in the heat of anger are only considered light other crime against honor
threats. 2. That such act is performed in the presence of other
person/s
3. That such act casts dishonor, discredit or contempt upon
EX: You had an appointment with someone and then she did the offended party
not push through, she just texted you that you‘d meet some
other time. You replied to her, ―Crazy!‖ Is that defamatory?
That is an expression of anger. SLANDER BY DEED
But does it mean that it is not anymore defamatory when you Committed by any person who shall perform any act which is
are being told that you are ―Crazy!‖? Defamatory but the not included or cannot be considered as oral defamation or
circumstances are looked into. But if in your expressions or libel which casts dishonor, discredit, or contempt upon another
statements it can be seen that what you are referring to is really person.
the meaning of the word ―Crazy!‖ which is a mental defect
TWO KINDS OF SLANDER OF DEED
then that could be defamatory and not just a mere expression
of anger. The same with ―Puta/Putang Ina‖. That could be an 1. Grave slander by deed; and
expression of anger, that could be an expression of displeasure 2. Light or slight slander by deed
but it does not mean that every time your utter such word you
would not be held liable because it could be that you really The court takes into consideration the circumstances regarding
mean what you say. the slanderous acts or deeds.
TRUTH AS A VALID DEFENSE Slapping another person in the presence of another person
But if you really have a relative that is crazy, TN even if it is with intent to dishonor, discredit or contempt upon that
true, if there is no justifiable reason or good motive for uttering person.
then you can be liable. Truth alone is not a defense in
defamation.Truth can be a defense if it is coupled with justifiable EX: You think that your husband has a mistress who is a law
reason and good motive or good intention. student. You waited for her outside the gate. When she went
out the gate, you slapped her infront of her classmates and told
EX: You have a sister who is looking for a guard then there is a her ―You have no shame!‖ That is slander by deed.
guard who applies. You know the applicant, you then inform
your sister not to accept the applicant because he is a thief or a ACT ONLY PRODUCE SLIGHT PHYSICAL INJURIES
convicted thief. Upon saying those words, someone heard it.
Slander by deed is committed when the act would only
The person who heard it told the applicant. Defamatory?
constitute or produce slight physical injuries.
There is justifiable reason and good motive or intention. Truth,
If the act would produce serious or less serious physical injuries, like
for it to be valid defense must be coupled with good intention
boxing another and he loses his front teeth, the crime committed
and justifiable reason.
would be serious physical injuries. And what would now happen
to the slanderous act? That would be considered as an Unjust Vexation- any act that would irritate or annoy.
aggravating circumstance, ignominy.
If the crime doesn‘t fall under acts of lasciviousness, it
If the act would constitute serious or less serious physical is UNJUST VEXATION.
injuries the humiliation or embarrassment suffered by the
victim would be considered an aggravating circumstance, If it does not constitute oral defamation because there
ignominy. was no publicity, UNJUST VEXATION.
It is slight physical injuries without any injury. Slight physical - This crime is more appropriate in traditional media
injuries committing any act or infliction of violence which does and not so in the social media. Because in traditional
not produce injury. media, there are different editors. Unlike in social
media where the one who posted the libellous
EX: You were slapped but since you have a thick face, nothing
statement is the only person responsible.
happened. There was no injury so it is only maltreatment.
- That is why there are many editors because they
But if there is an injury which is slight only, it heals in less than
make sure that there are no libellous statements in
9 days so that is slander by deed.
their publications. For they too can be held liable for
―IF THERE IS INTENT TO HUMILIATE OR EMBARRASS another person‘s article if they (as editors) miss to edit
THE OFFENDED PARTY‖ the same.
Humiliate – when there are a lot people and you slap another. The persons responsible for libel are:
You look at the other persons intention.
1. The person who publishes, exhibits or causes the
EX: Spitting at another person. publication or exhibition of any defamation in writing
or similar means.
2. The author or editor of a book or pamphlet
3. The editor or business manager of a daily newspaper
magazine or serial publication
4. The owner of the printing plant which publishes a
ORAL DEFAMATION AND SLANDER BY DEED
libellous article with his consent and all other persons
These are different provisions so are penalized by different who in any way participate in or have connection
articles. That could be another crime because by uttering, the with its publication.
other person is also humiliated. That could be light oral
Note: THE VENUE HERE IS DIFFERENT.
defamation. Then you slapped her that could be slander by
deed. CRIMINAL CIVIL LIBEL
cases cases
POINTING A DIRTY FINGER CONSTITUTES SIMPLE (Both criminal and Civil)
SLANDER BY DEED
Where the Option RTC where the libellous
Pointing a dirty finger that is a slight or light slander by deed. crime is of the article was first printed
(Ppvs Villanueva, 487 SCRA 42) committed plaintiff or
But does that mean that every person accused of libel or - He is similar to a public officer.
defamation would already be convicted? Ans. NO.
Because although malice is presumed, the accused Article 362 Libellous remarks
can still rebut malice by presenting evidence that he
uttered the slanderous words with malice. - Even if the comments or remarks are considered
privileged, if the same is uttered with malice then the
How can the presumption be rebutted? Article 361. If author could still be held liable for libel.
he can prove that the imputation is true and that he
uttered or published the same with good motives and - What has to be proved is actual malice.
justifiable reasons or ends. In that situation, the
Article 363 Incriminating innocent persons
defendant should be acquitted.
- Committed by any person who by any act
Article 361 Proof of truth
constituting perjury shall directly incriminate or
impute to an innocent person the commission of
a crime. (cut)
Article 363. Incriminating innocent person would be driving at a high speed and you caused
injuries to another, driving is a lawful act but
- Any act which does not constitute perjury, that over speeding is negligent, hence 365 will apply.
would incriminate or impute to an innocent - Now there are crimes that are committed thru
person the commission of a crime. negligence not penalized under this article,
remember malversation? The same can be
Article 364. Intriguing against honor
committed by both dolo and culpa, in such case,
- Any intrigue which has for its principal purpose the penalty is the same as to both.
to blemish the honor or reputation of a person
Elements of criminal negligence:
Notes:
1. Offender does or fails to do an act
2. That such failure/doing of an act is voluntary
- Relate this to oral defamation; in the latter, the
3. That it be without malice
identity of the author is clear, for example you 4. Material damage results
will say ―you are a thief!‖ however for example 5. There is inexcusable lack of precaution on part of the
you will say ―you know, they say that you are a offender
thief‖, now that is intriguing against honor.
(chismisngadaotan) ;Even if the same is true. - What is the test of negligence/imprudence? The
- May be a ground for moral damages. question is: would a prudent man in a position of
the person, to whom negligence is attributed,
Article 365. Criminal Negligence foresee harm to the person injured as a
reasonable consequence of the cause about to be
- Any person who by reckless imprudence, shall pursued.
commit any act which, had it been intentional,
would constitute a grave/less grave/light felony. Q: A sickly child was brought to a quack doctor who said that
- Any person who, by simple imprudence or the child was actually possessed by a spirit, and that for him to
negligence, shall commit an act which would, be healed, he must be submerged into a pail filled with water.
The child was really submerged and later on died. The child
otherwise constitute a grave felony/less
who was 2 years old was autopsied and it was found that he
grave/light felony.
died due to drowning. The quack doctor was charged with
- (refer to the codal provision for the murder. Is he liable for murder?
corresponding penalty of each resulting felony
whether it be grave/less grave/light) A: No. Accused-appellants had no criminal intent to kill the
boy. Their liability arises from their reckless imprudence
Notes: because they ought that to know their actions would not bring
about the cure. They are, therefore, guilty of reckless
- In a case, SC held that the penalty for reckless imprudence resulting in homicide and not of murder. Reckless
imprudence resulting in a light felony is public imprudence consists in voluntarily, but without malice, doing
or failing to do an act from which material damage results by
censure (now this would impliedly repeal the one
reason of inexcusable lack of precaution on the part of the
given in 365 which is aresto mayor)
person performing such act. Compared to intentional felonies,
- Suppose the accused X fired his gun at Y with such as homicide or murder, what takes the place of the
intent to kill, now the bullet went through Y, element of malice or intention to commit a wrong or evil is the
which hit another victim A, and the latter sustain failure of the offender to take precautions due to lack of skill
slight physical injuries, what crime/s are taking into account his employment, or occupation, degree of
committed by X? Complex Crime of murder with intelligence, physical condition, and other circumstances
regarding persons, time, and place.The elements of reckless
attempted murder; if there was treachery on the
imprudence are apparent in the acts done by accused-
intended victim, then it will also pass to the appellants which, because of their lack of medical skill in
unintended victim. treating the victim of his alleged ailment, resulted in the latters
- Now in reckless imprudence, it presupposes that death. As already stated, accused-appellants, none of whom is
the accused is performing a LAWFUL ACT with a medical practitioner, belong to a religious group, known as
negligence; otherwise if the act constitutes a the Missionaries of Our Lady of Fatima, which is engaged in
felony, then art. 365 will not apply. Example faith healing. (Pp v Carmen 355 SCRA 267)
3rd par: When the execution of the act covered by this article under Article 365, and only one information shall be filed in the same
shall have only resulted in damage to the property of first level court.‖
another, the offender shall be punished by a fine ranging
from an amount equal to the value of said damages to three Q: Is contributory negligence on the part of a victim a defense
times such value, but which shall in no case be less than in reckless imprudence resulting to homicide?
twenty-five pesos. - No, it is not a defense. It will only mitigate the offender‘s civil
liability.
This is applicable when the result is only damage to
property. Q: What if your dog bit another person?
If there is another result like damage to property and - That may result to Reckless Imprudence resulting to Physical
physical injury, this will not apply. That would fall Injuries. You must have tied your dog to prevent it from
under par 1. causing harm to others.
Ex: you drove and bumped a BMW which damages END OF BOOK II
costs 1M – that is reckless imprudence resulting to
damage to property. The penalty is equal to the value RA 9262
of the damage which is 1M, up to three times such ANTI-VIOLENCE AGAINST WOMEN AND THEIR
value which is 3M. If you don‘t have money, you can CHILDREN ACT OF 2004
convert that with subsidiary imprisonment – 1 day for
every highest minimum wage – TN imprisonment July 7, 2016
must not be more than 6 months.
SPECIAL PENAL LAWS
If in the above example, the driver suffered slight
physical injuries, par 1 applies. So, had it been Anti-Violence Against Women and Their Children Act of
intentional, it would have been malicious mischief. 2004 - RA 9262
This is a less grave felony where the penalty is arresto
mayor in its minimum and medium periods. (Pp v This was enacted about 2 months after the ruling of
Reodica GR No. 125066) People vs Genosa.
Purpose: address committed against women and their
Case of Ivler vs Modesto - San Pedro children.
- Jason Ivler was charged with
1. Reckless Imprudence Resulting in Slight Physical SECTION 3. Definition of Terms.- As used in this Act,
Injuries
2. Reckless Imprudence Resulting in Homicide and Damage to (a) "Violence against women and their children" refers to any
Property act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with
In this case, SC said that Art 48 will not apply. There will be no whom the person has or had a sexual or dating relationship, or
complex crime. The accused shall be punished with as many with whom he has a common child, or against her child
crimes as he committed resulting from his reckless whether legitimate or illegitimate, within or without the family
imprudence. If there are 4 resulting crimes, he would suffer 4 abode, which result in or is likely to result in physical, sexual,
penalties even if there is only 1 act. psychological harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion, harassment or
SC: ―We forbid the application of Article 48 in the prosecution arbitrary deprivation of liberty.
and sentencing of quasi-crimes, require single prosecution of all the to be liable, the offender must have or had a sexual or
resulting acts regardless of their number and severity, separately dating relationship with the woman
penalize each as provided in Article 365, and thus maintain the the accused could be a step father of the child within or
distinct concept of quasi-crimes as crafted under Article 365. without the family abode
Article 48 is incongruent to the notion of quasi-crimes ―threats of such acts‖ – even if there is no actual infliction
under Article 365. It is conceptually impossible for a quasi-offense to of violence, or is just a mere threat, that is a violation of
stand for (1) a single act constituting two or more grave or less this law already.
grave felonies; or (2) an offense which is a necessary means for
committing another. It includes:
We hold that prosecutions under Article 365 should A. "Physical Violence" refers to acts that include bodily or
proceed from a single charge regardless of the number or severity of physical harm;
the consequences. In imposing penalties, the judge will do no more
than apply the penalties under Article 365 for each consequence B. "Sexual violence" refers to an act which is sexual in nature,
alleged and proven. In short, there shall be no splitting of charges committed against a woman or her child. It includes, but is not
limited to:
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
a) rape, sexual harassment, acts of lasciviousness, serious and moral grounds as defined in Article 73 of
treating a woman or her child as a sex object, the Family Code;
making demeaning and sexually suggestive TN: mere threat of not supporting your wife
remarks, physically attacking the sexual parts of would constitute economic abuse which is a
the victim's body, forcing her/him to watch violation of this law
obscene publications and indecent shows or Forcing your wife to resign or leave her work for
forcing the woman or her child to do indecent the purpose of making her dependent on you is
acts and/or make films thereof, forcing the wife also economic abuse.
and mistress/lover to live in the conjugal home 2. deprivation or threat of deprivation of financial
or sleep together in the same room with the resources and the right to the use and enjoyment of the
abuser; conjugal, community or property owned in common;
These are the sexual abuses. Remember if the 3. destroying household property;
sexual abuse with constitute rape, that 4. controlling the victims' own money or properties
would be prosecuted under the RPC. or solely controlling the conjugal money or
Pp vs Jumawan – the husband could be held properties.
liable for rape
Hayden Kho and Haliliscandal – the taking (b) "Battery" refers to an act of inflicting physical harm upon
of a video of the sexual encounter – this is the woman or her child resulting to the physical and
not a violation of RA 9262 because what is psychological or emotional distress.
required is that there be force and violence in TN: Woman suffering from Battered Woman
making films of the indecent acts. But this Syndrome is considered a JUSTIFYING
falls under the Anti Photo and Video CIRCUMSTANCE even if none of the circumstances
Voyeurism Act, which states that even if for a valid self defense(even unlawful aggression) is
there was consent in filming, another present. (Read Pp vs Genoso)
consent is required for the posting or sharing
the video. (c) "Battered Woman Syndrome" refers to a scientifically
b) acts causing or attempting to cause the victim to defined pattern of psychological and behavioral symptoms
engage in any sexual activity by force, threat of found in women living in battering relationships as a result
force, physical or other harm or threat of physical of cumulative abuse.
or other harm or coercion; (d) "Stalking" refers to an intentional act committed by a
c) Prostituting the woman or child. person who, knowingly and without lawful justification
follows the woman or her child or places the woman or her
C. "Psychological violence" refers to acts or omissions causing child under surveillance directly or indirectly or a
or likely to cause mental or emotional suffering of the victim combination thereof.
such as but not limited to intimidation, harassment, stalking, (e) "Dating relationship" refers to a situation wherein the
damage to property, public ridicule or humiliation, repeated parties live as husband and wife without the benefit of
verbal abuse and mental infidelity. It includes causing or marriage or are romantically involved over time and on a
allowing the victim to witness the physical, sexual or continuing basis during the course of the relationship. A
psychological abuse of a member of the family to which the casual acquaintance or ordinary socialization between two
victim belongs, or to witness pornography in any form or to individuals in a business or social context is not a dating
witness abusive injury to pets or to unlawful or unwanted relationship.
deprivation of the right to custody and/or visitation of Dating relationship is present even if there is no
common children. sexual intercourse between the parties. Even in the so-
If A(husband) lets his child watch him physically called ―away-bati relationship‖ (Ang vs CA 4/20/10)
abuse ―kulata‖ B(Wife), there are 2 victims: the wife ―Uyab-uyab‖ is a dating relationship.
and the child. Case: Lex and Lexy just broke up from their
Letting the child see the abuse of the pet cat/dog is a relationship. Later,Lexy heard rumors about herself
violation and confronted Lex. Lex admitted to spreading the
rumors. Because of this, she slapped Lex.After which,
D. ―Economic abuse‖ refers to acts that make or attempt to Lex punched Lexy. Is Lex liable under this law?
make a woman financially dependent which includes, but is - Yes. This law will apply even if the dating
not limited to the following: relationship of the parties has already ceased
to exist. What is required is that they HAD a
1. withdrawal of financial support or preventing the dating relationship. It is not necessary that
victim from engaging in any legitimate profession, the violence is a consequence of the
occupation, business or activity, except in cases relationship. If the physical injuries
wherein the other spouse/partner objects on valid, committed falls under this law, it has a
Any of the reliefs provided under this section shall (b) Parents or guardians of the offended party;
be granted even in the absence of a decree of legal
separation or annulment or declaration of absolute (c) Ascendants, descendants or collateral relatives within the
nullity of marriage. fourth civil degree of consanguinity
(g) Lawyer, counselor, therapist or healthcare provider of the - There is already a readymade form, fill in the blank type
petitioner;
(h) At least two (2) concerned responsible citizens of the city or If the applicant is not the victim, the application must be
municipality where the violence against women and their children accompanied by an affidavit of the applicant attesting to (a) the
occurred and who has personal knowledge of the offense circumstances of the abuse suffered by the victim and (b) the
committed. circumstances of consent given by the victim for the filing of the
application. When disclosure of the address of the victim will pose
SECTION 10. Where to Apply for a Protection Order. — danger to her life, it shall be so stated in the application
Applications for BPOs shall follow the rules on venue under
Section 409 of the Local Government Code of 1991 and its SECTION 12. Enforceability of Protection Orders. — All TPOs and
implementing rules and regulations. PPOs issued under this Act shall be enforceable anywhere in the
Philippines and a violation thereof shall be punishable with a fine
- RegardingBPO, the rule on venue provided by the Local ranging from Five Thousand Pesos (P5, 000.00) to Fifty Thousand
Government Code shall apply Pesos (P50, 000.00) and/or imprisonment of six (6) months.
- If parties are residing in the same barangay – with the
barangay where they are living - TPOs and PPOs are enforceable anywhere in the
- If parties are living in different barangays – in the barangay Philippines even if a first level court issues it.
where the defendant or accused is living or residing - Penalty for the violation: Fine – P5, 000.00 – P50, 000.00
and/or imprisonment of 6 months
- It shall be issued on the date of filing. which is protection of women and children from violence
- Why is it on the date of filing? The moment the husband and threats to their personal safety and security.
knows that she went to the barangay, there is a possibility - TPO is issued ex parte but the SC said that the moment a
that the husband might kill or abuse her. court issued a TPO, the court shall likewise order that
notice be immediately given to the respondent directing
him to file an opposition within five (5) days from service.
If the Punong Barangay is unavailable to act on the application for a o The accused after the issuance of a TPO shall likewise be
BPO, the application shall be acted upon by any available Barangay directed to comment or object on such order within 5 days.
Kagawad. If the BPO is issued by a Barangay Kagawad, the order - Due process: law that requires that a person who is
must be accompanied by an attestation by the Barangay Kagawad accused of a crime should be heard or given first an
opportunity to be heard before he is condemned
that the Punong Barangay was unavailable at the time for the
issuance of the BPO. BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO, the Punong A court may grant in a TPO any, some or all of the reliefs mentioned
Barangay or Barangay Kagawad shall personally serve a copy of the in this Act and shall be effective for thirty (30) days.
same on the respondent, or direct any barangay official to effect its
personal service. - Duration of the TPO: 30 days
- TN that under section 16, it can be extended when it is
- In case of the absence of the Barangay Captain, any about to expire for 30 days and up to the time that the
available Barangay Kagawad may issue a protection order. court can decide or rule whether or not there is a need to
- BPO shall be effective for 15 days and shall be served by issue a permanent protection order.
the Barangay Chairman himself or by the Kagawad who - IOW the court can continuously extend or renew or TPO
issued the protection order. for a period of 30 days for each particular time until final
EX: If in the protection order, it states that the husband be judgment is issued or until the court can determine
evicted then the Chairman or Kagawad be the one to whether or not a protection order shall be made permanent
implement the protection order. IF the husband would not or not.
receive it, stick it to the wall of the house.
The court shall schedule a hearing on the issuance of a PPO prior to
SECTION 15. Temporary Protection Orders. — Temporary or on the date of the expiration of the TPO. The court shall order the
Protection Orders (TPOs) refers to the protection order issued by the immediate personal service of the TPO on the respondent by the
court on the date of filing of the application after ex parte court sheriff who may obtain the assistance of law enforcement
determination that such order should be issued. agents for the service. The TPO shall include notice of the date of the
hearing on the merits of the issuance of a PPO.
- TPO shall be issued on the very date that the application
the petition was filed and the same shall be issued ex-parte SECTION 16. Permanent Protection Orders. —
(without the presence of the adverse party)
- This provision was questioned in the case of Garcia The court shall allow the introduction of any history of abusive
vsDrilon because according to the petitioner, this is a conduct of a respondent even if the same was not directed against the
violation of the due process clause of the Constitution. In applicant or the person for whom the applicant is made.
other words, the petitioner Garcia questioned the
constitutionality of the law. But in this case, the SC said - IOW even those instances wherein the accused inflicted
that it does not. RA 9262 deals with the problem of violence, the same can be admitted in evidence in a case
violence within the family and intimate relationships, where he charged with Violation of RA 9262 in order to
which deserves special attention because it occurs in prove that he is the violent type or the accused has
situations or places where women and children should feel violent tendencies. Even if the victim is not wife herself.
most safe and secure, but are actually not. - Under the Rules of Evidence, this is not allowed. It is
- RA 9262 is valid and does not violate any provision of the considered irrelevant. This is what we call res inter aliosacta
Constitution particularly the due process clause and the – other acts of the accused cannot, cannot be introduced. It
equal protection of the Constitution. According to the SC is inadmissible in evidence. But for this law, it is allowed.
in another case of TuavsMangrobang Jan 22, 2014, the grant - Purpose: to prove the violent tendency of the accused
of a TPO ex parte cannot, therefore, be challenged as
violative of the right to due process. The victim of VAWC Regardless of the conviction or acquittal of the respondent, the Court
may already have suffered harrowing experiences in the must determine whether or not the PPO shall become final. Even in a
hands of her tormentor, and possibly even death, if notice dismissal, a PPO shall be granted as long as there is no clear
and hearing were required before such acts could be showing that the act from which the order might arise did not exist.
prevented. Procedural due process must yield to the
necessities of protecting vital public interests, among
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
- IOW even if the accused is acquitted, the court can still A judgment of violation of a BPO may be appealed according to
issue a permanent protection order. the Rules of Court. During trial and upon judgment, the trial
court may motuproprio issue a protection order as it deems
necessary without need of an application.
SECTION 18. Mandatory Period For Acting on Applications For
Protection Orders. — Failure to act on an application for a
Violation of any provision of a TPO or PPO issued under this Act
protection order within the reglementary period specified in the
shall constitute contempt of court punishable under Rule 71 of the
previous sections without justifiable cause shall render the official or
Rules of Court, without prejudice to any other criminal or civil
judge administratively liable.
action that the offended party may file for any of the acts
committed.
- It is a must that they do it fast.
SECTION 20. Priority of Applications for a Protection Order. PRESCRIPTIVE PERIOD (Section 24):
- The case shall be heard immediately and the case a. Acts under Section 5(a- f) shall prescribe in 20 years
involving violation of RA 9262 shall be given priority. while
- The petition for the issuance of the protection order
b. Acts falling under Section 5 (g- i) shall prescribe in 10
should be acted on the same day that it is filed.
years.
Otherwise, the judge will be held administratively
liable.
NOTE: any violation under this law is considered a
SECTION 21. Violation of Protection Orders. — A complaint for public crime.
a violation of a BPO issued under this Act must be filed directly
with any municipal trial court, metropolitan trial court, or Section 26. Battered Woman Syndrome as a defense.
municipal circuit trial court that has territorial jurisdiction over
the barangay that issued the BPO. Violation of a BPO shall be This requires repeated infliction of violence.
punishable by imprisonment of thirty (30) days without prejudice
to any other criminal or civil action that the offended party may BWS is considered as a defect. It‘s likened to an
file for any of the acts committed. illness. If it comes to a point that the woman- victim starts to
blame herself whenever she‘s being battered as when instead
- Penalty for the violation of a BPO: punishable for an of getting mad at the man who batters her, she gets mad at
imprisonment of 30 days without prejudice to any other
herself, that is a symptom that she is already suffering from
criminal or civil action that the offended party may file for
any of the acts committed battered woman syndrome. Read the case of Pp. vs Genosa.
- Where do you file a case of or violation of BPO: it should
be filed with the first level court that has territorial Three Stages of BWS:
jurisdiction over the barangay 1. Tension- building phase
- The first level court that is handling the case for violation 2. Acute battering incident
of a BPO may issue, upon motion or motuproprio 3. Tranquil, loving
temporary.
If a woman is found to be suffering from BWS, SHE DOESN’T - Children below 7 years old or older but with mental
INCUR ANY CRIMINAL AND CIVIL LIABILITY, or physical disabilities shall automatically be given
notwithstanding the absence of any of the elements of the to the mother with right to support, unless the court
Justifying Circumstance of self defense. Even in the absence of finds compelling reasons to order otherwise.
the essential element of unlawful aggression, BWS can still be
used as a defense. - In no case shall custody be given to the perpetrator of
a woman who is suffering from BWS.
Pp vs Genosa
Section 30. The barangay officials and law enforcers should
- The husband of Genosa here is the breadwinner of the
immediately respond to a call for help or request for assistance,
family. Every payday, he would usually go on a
or protection of the children by entering if necessary the house.
drinking spree with his friends and would arrive
WON the protection order has been issued.
home drunk. Genosa who used to ask money to pay
for the expenses at home ended up getting beaten by Arrest the suspected perpetrator even with or without warrant.
her drunk husband. She came to a point where she Otherwise such law enforcer can be charged, criminally, civilly
could no longer take the battering and so she stabbed or administratively.
her husband the next time he attempted to batter her
again. Section 31. Healthcare providers should likewise respond
immediately and submit reports.
Genosa was convicted of PARRICIDE, because this
law wasn‘t enacted yet at that time. Section 33. AMICABLE SETTLEMENT IS PROHIBITED.
NOTE: BWS is an issue which requires the testimony of an August 12, 2016
expert witness: either a psychologist or a psychiatrist.
Child – persons below 18 or those over 18 but are unable to (4) Threatening or using violence towards a child to
fully take care/protect of themselvesfromb abuse due to engage him as a prostitute; or
physical/mental disability or condition.
(5) Giving monetary consideration goods or other
-definition of a child here is copied in RA 9262 pecuniary benefit to a child with intent to engage such child in
-there must be proof that mental/physical disability prostitution.
affects the victim; there must be
medical/psychological findings. b. Those who commit the act of sexual intercourse of lascivious
-mere fact that the victim is suffering from a conduct with a child exploited in prostitution or subject to
physical/mental defect is not enough, there must be a other sexual abuse; Provided, That when the victims is under
medical or psychological findings that such defect twelve (12) years of age, the perpetrators shall be prosecuted
would render the victim unable to defend himself under Article 335, paragraph 3, for rape and Article 336 of Act
from abuse; People vsAbello March 25, 2009 No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the
Child Abuse – refers maltreatment whether habitual or not; penalty for lascivious conduct when the victim is under twelve
even if it is only a single act (12) years of age shall be reclusion temporal in its medium
period; and
Acts that constitute child abuse:
c. Those who derive profit or advantage therefrom, whether as
1. psychological and physical abuse manager or owner of the establishment where the prostitution
takes place, or of the sauna, disco, bar, resort, place of
2. sexual abuse and emotional maltreatment entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
3. or an act by deeds or words which debases, degrades or license has been issued to said establishment.
demeans the intrinsic worth and dignity of the child as a
human being. Notes:
- Includes unreasonable deprivation of the child‘s basic - Remember that child prostitution may also constitute
needs for survival. a violation of another related law which is trafficking
- Failure to give immediate medical treatment to a in persons, RA 9208; if the victim of the trafficking is a
child resulting in serious impairment of his growth child, then the same is qualified.
and development or his permanent incapacity or - What if the child is not a prostitute? Can the accused
death. be charged under sec.5? Yes, it would constitute other
- Discipline administered by the parent towards a child sexual abuse, particularly seduction, which is having
is not considered as cruelty, provided it is reasonable sexual intercourse of a minor through inducement,
in manner and moderate only, and does not result to deceit or fraud. Hence, the accused can be charged
physical/psychological injury. under sec.5 or under the revised penal code.
- Same goes with rape of a child under 12, he can either
*Sec. 5 Child Prostitution and Other Sexual Abuse – be liable under sec.5 of this law, or under the revised
Children, whether male or female, who for money, profit, or penal code; he cannot be charged with both.
any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or If the accused had sexual intercourse with a minor who is not a
lascivious conduct, are deemed to be children exploited in prostitute and he did not induce or deceive the minor nor exert
prostitution and other sexual abuse. any influence. No force, threats, intimidation. Is he liable for
child abuse?
*Persons liable: o SC said in Pp vs Olayon: Having sexual intercourse
with a minor is not a crime per se. What is punishable
a. Those who engage in or promote, facilitate or induce child is sexual abuse with a child. Child abuse is having
prostitution which include, but are not limited to, the sexual intercourse with a child prostitute or by means
following: of inducement, enticement, influence, threat,
intimidation or force. If these circumstances are not
(1) Acting as a procurer of a child prostitute;
present and if the minor in her own volition had sex
with the accused, the court cannot be held liable for
(2) Inducing a person to be a client of a child
child abuse.
prostitute by means of written or oral advertisements or other
Judge‘s opinion of the above ruling: There must be an
similar means;
oversight for having a minor in your company in a hotel or in a
(3) Taking advantage of influence or relationship to car which is heavily tinted is already a violation with this law.
procure a child as prostitute;
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
How much more if you have sexual intercourse with such provisions of the RPC shall also apply - such as
minor? mitigating and aggravating circumstances.
Child trafficking under 9208 is life imprisonment.
TN: To be liable for RA 7610, it must be proven that the minor Here it is Reclusion Temporal to Perpetua
is a prostitute. If she is not a prostitute, it must be proven that
sex was thru force, intimidation or threat or any circumstances Section 8. Attempt to Commit Child Trafficking. – There is an
which constitute rape; or due to enticement, inducement, attempt to commit child trafficking under Section 7 of this Act:
deceit or influence. Without these circumstances, the accused
cannot be held liable. (a) When a child travels alone to a foreign country
without valid reason therefor and without clearance issued by
Pp vs Abay Feb 24, 2009: If the victim is 12 years or older, the the Department of Social Welfare and Development or written
offender should be charged with either sexual abuse under permit or justification from the child's parents or legal
RA 7610 Section 5(b) or Rape under the RPC. If the child is guardian;
below 12, the offender shall be charged under the RPC.
(b) When a pregnant mother executes an affidavit of
Section 6. Attempt To Commit Child Prostitution. – There is an consent for adoption for consideration;
attempt to commit child prostitution under Section 5,
paragraph (a) hereof when any person who, not being a (c) When a person, agency, establishment or child-caring
relative of a child, is found alone with the said child inside the institution recruits women or couples to bear children for the
room or cubicle of a house, an inn, hotel, motel, pension house, purpose of child trafficking; or
apartelle or other similar establishments, vessel, vehicle or any
other hidden or secluded area under circumstances which (d) When a doctor, hospital or clinic official or employee,
would lead a reasonable person to believe that the child is nurse, midwife, local civil registrar or any other person
about to be exploited in prostitution and other sexual abuse. simulates birth for the purpose of child trafficking; or
In special law, there are no attempted or frustrated (e) When a person engages in the act of finding children
stages, unless the same is specifically provided or among low-income families, hospitals, clinics, nurseries, day-
penalized by law. In here, attempted is expressly care centers, or other child-during institutions who can be
penalized. offered for the purpose of child trafficking.
What will be your defense if you are with a child?
That he/she is your relative. Relationship is a A penalty lower two (2) degrees than that prescribed for the
defense. consummated felony under Section 7 hereof shall be imposed
upon the principals of the attempt to commit child trafficking
There is also an attempt to commit child prostitution, under under this Act.
paragraph (b) of Section 5 hereof when any person is receiving
services from a child in a sauna parlor or bath, massage clinic, ARTICLE V
health club and other similar establishments. A penalty lower Obscene Publications and Indecent Shows
by two (2) degrees than that prescribed for the consummated
felony under Section 5 hereof shall be imposed upon the Section 9.Obscene Publications and Indecent Shows. – Any
principals of the attempt to commit the crime of child person who shall hire, employ, use, persuade, induce or coerce
prostitution under this Act, or, in the proper case, under the a child to perform in obscene exhibitions and indecent shows,
Revised Penal Code. whether live or in video, or model in obscene publications or
pornographic materials or to sell or distribute the said
ARTICLE IV materials shall suffer the penalty of prision mayor in its
Child Trafficking medium period.
Trafficking can be found in RA 9208 (Anti-Trafficking RA 9775 – Child Pornography. This is related to this
in Pesons), as well as in this law, RA 7610 section.
Even if the child is not the model or is not dancing,
Section 7.Child Trafficking. – Any person who shall engage in but if you let him or her sell – that is child abuse.
trading and dealing with children including, but not limited to,
the act of buying and selling of a child for money, or for any If the child used as a performer, subject or seller/distributor is
other consideration, or barter, shall suffer the penalty of below twelve (12) years of age, the penalty shall be imposed in
reclusion temporal to reclusion perpetua. The penalty shall be its maximum period.
imposed in its maximum period when the victim is under
twelve (12) years of age. Any ascendant, guardian, or person entrusted in any capacity
As you can observe here, the terms of penalty used with the care of a child who shall cause and/or allow such
here come from the RPC, and so the rule is that, the child to be employed or to participate in an obscene play,
scene, act, movie or show or in any other acts covered by this by Article 59 of Presidential Decree No. 603, as amended, but
section shall suffer the penalty of prision mayor in its medium not covered by the RPC, as amended.
period.
Article 59. Crimes. - Criminal liability shall attach to any
ARTICLE VI parent who:
Other Acts of Abuse
1. Conceals or abandons the child with intent to make such
Section 10.Other Acts of Neglect, Abuse, Cruelty or
child lose his civil status.
Exploitation and Other Conditions Prejudicial to the Child's 2. Abandons the child under such circumstances as to deprive
Development. –those acts not mentioned in Sec 5-9 fall here. him of the love, care and protection he needs.
3. Sells or abandons the child to another person for valuable
(a) Any person who shall commit any other acts of child consideration.
abuse, cruelty or exploitation or to be responsible for other 4. Neglects the child by not giving him the education which
conditions prejudicial to the child's development including the family's station in life and financial conditions permit.
those covered by Article 59 of Presidential Decree No. 603, as 5. Fails or refuses, without justifiable grounds, to enroll the
amended, but not covered by the Revised Penal Code, as child as required by Article 72.
amended, shall suffer the penalty of prision mayor in its 6. Causes, abates, or permits the truancy of the child from the
minimum period. school where he is enrolled. "Truancy" as here used means
absence without cause for more than twenty schooldays,
Inflicting physical injuries to the child fall here. That not necessarily consecutive.
is cruelty. 7. It shall be the duty of the teacher in charge to report to the
Case: A child came home crying because she was parents the absences of the child the moment these exceed
punched by the neighbor who is a child as well. The five schooldays.
father got mad and looked for the child who 8. Improperly exploits the child by using him, directly or
punched and slapped that child. He was convicted in indirectly, such as for purposes of begging and other acts
the RTC of Child abuse. Is he liable for child abuse? which are inimical to his interest and welfare.
No, SC convicted him of slight physical injuries only. Not 9. Inflicts cruel and unusual punishment upon the child or
every instance of laying hands on a child constitutes child deliberately subjects him to indignation and other excessive
abuse. Only when the laying of hands is intended to chastisement that embarrass or humiliate him.
debase, degrade or demean the intrinsic worth and dignity 10. Causes or encourages the child to lead an immoral or
of the child as a human being should it be punished as dissolute life.
child abuse. Otherwise, it is only punishable under the 11. Permits the child to possess, handle or carry a deadly
RPC.(Pp vs Bongalon, March 20, 2013) weapon, regardless of its ownership.
Case: A grade 1 pupil‘s teacher was sleeping for noon
break. The child and classmates were playing in the (b) Any person who shall keep or have in his company a
room and accidentally hit the knee of the teacher. The minor, twelve (12) years or under or who in ten (10) years or
teacher ordered the child to ask for apology but the more his junior in any public or private place, hotel, motel,
child did not and kept quiet. Now, the teacher beer joint, discotheque, cabaret, pension house, sauna or
pinched him and held him up his armpits and massage parlor, beach and/or other tourist resort or similar
pushed him to the desk causing the child to lose his places.
consciousness. The teacher continued and picked up
the student by his ears and banged him on the floor. Provided, That this provision shall not apply to any person
The teacher cited the case of Pp vs Bongalon. Does who is related within the fourth degree of consanguinity or
her act constitute Child Abuse? (Pp vs Rosaldez GR affinity or any bond recognized by law, local custom and
173988) tradition or acts in the performance of a social, moral or legal
Case: Teacher banged the heads of the student to duty.
each other. One student died because of that. Is that
child cruelty? YES! (De Ocampo vs DOJ)
(c) Any person who shall induce, deliver or offer a minor to
any one prohibited by this Act to keep or have in his company
a minor as provided in the preceding paragraph.
Section 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's
Development Provided, however, That should the perpetrator be an
ascendant, stepparent or guardian of the minor, the penalty to
be imposed shall be in its maximum period and the loss of
(a) Any person who shall commit any other acts of child abuse, parental authority over the minor.
cruelty or exploitation or to be responsible for other conditions
prejudicial to the child's development including those covered
(d) Any person, owner, manager or one entrusted with the In other words, they can be summarily closed, even without
operation of any public or private place of accommodation, court order by the DSWD.
whether for occupancy, food, drink or otherwise, including
residential places, who allows any person to take along with Section 12. Employment of Children
him to such place or places any minor.
Children below fifteen (15) years of age may be employed
(e) Any person who shall use, coerce, force or intimidate a EXCEPT:
street child or any other child to;
(1) When a child works directly under the sole responsibility
1. Beg or use begging as a means of living; of his parents or legal guardian and where only members of
2. Act as conduit or middlemen in drug trafficking or the employer's family are employed.
pushing; or
3. Conduct any illegal activities, shall suffer the penalty of Provided, however, That his employment neither
prision correccional in its medium period to reclusion endangers his life, safety and health and morals, nor
perpetua.
impairs his normal development.
That the work shall not be more than four (4) hours at any (2) The use, procuring, offering or exposing of a child for
given day; prostitution, for the production of pornography or for
pornographic performances; or
(2) A child fifteen (15) years of age but below eighteen (18)
shall not be allowed to work for more than eight (8) hours a (3) The use, procuring or offering of a child for illegal or illicit
day, and in no case beyond forty (40) hours a week; activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited under
(3) No child below fifteen (15) years of age shall be allowed to existing laws; or
work between eight o'clock in the evening and six o'clock in
the morning of the following day and no child fifteen (15) (4) Work which, by its nature or the circumstances in which it
years of age but below eighteen (18) shall be allowed to work is carried out, is hazardous or likely to be harmful to the
between ten o'clock in the evening and six o'clock in the health, safety or morals of children, such that it:
morning of the following day.
a) Debases, degrades or demeans the intrinsic worth
Section 12-B. Salary of the Child and dignity of a child as a human being; or
The wages, salaries, earnings and other income of the b) Exposes the child to physical, emotional or sexual
working child shall belong to him/her in ownership and shall abuse, or is found to be highly stressful
be set aside primarily for his/her support, education or skills psychologically or may prejudice morals; or
acquisition and secondarily to the collective needs of the
family: Provided, That not more than twenty percent (20%) of c) Is performed underground, underwater or at
the child's income may be used for the collective needs of the dangerous heights; or
family.
d) Involves the use of dangerous machinery,
Sec. 12-C. Trust Fund to Preserve Part of the Working equipment and tools such as power-driven or
Child's Income explosive power-actuated tools; or
The parent or legal guardian of a working child below e) Exposes the child to physical danger such as, but not
eighteen (18) years of age shall set up a trust fund for at least limited to the dangerous feats of balancing, physical strength
thirty percent (30%) of the earnings of the child whose wages or contortion, or which requires the manual transport of
and salaries from work and other income amount to at least heavy loads; or
two hundred thousand pesos (P200,000.00) annually, for
f) Is performed in an unhealthy environment exposing the
which he/she shall render a semi-annual accounting of the
child to hazardous working conditions, elements, substances,
fund to the DOLE, in compliance with the provisions of this
co-agents or processes involving ionizing, radiation, fire,
Act.
flammable substances, noxious components and the like, or to
The child shall have full control over the trust fund upon extreme temperatures, noise levels, or vibrations; or
reaching the age of majority.
g) Is performed under particularly difficult conditions; or
Sec. 12-D. Prohibition Against Worst Forms of Child Labor
h) Exposes the child to biological agents such as bacteria,
No child shall be engaged in the worst forms of child labor. fungi, viruses, protozoans, nematodes and other parasites; or
The phrase "worst forms of child labor" shall refer to any of the
following: i) Involves the manufacture or handling of explosives and
other pyrotechnic products.
(1) All forms of slavery, as defined under the "Anti-
Trafficking in Persons Act of 2003", or practices similar to RA 7610
slavery such as sale and trafficking of children, debt bondage
- More on the victim who is a minor
and serfdom and forced or compulsory labor, including
recruitment of children for use in armed conflict; or RA 9344
AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE
JUSTICE AND WELFARE SYSTEM, CREATING THE
JUVENILE JUSTICE AND WELFARE COUNCIL UNDER
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
THE DEPARTMENT OF JUSTICE, APPROPRIATING - refers to a child who is alleged as, accused of, or
FUNDS THEREFOR AND FOR OTHER PURPOSES adjudged as, having committed an offense
- More on the offender who is a minor - So if a child committed a crime or is already
convicted, he is called a child in conflict of the law.
Important words to TAKE NOTE:
- If have not committed a crime yet but at risk of
Best interest of the child (memorizes or at least familiarize) committing a crime, he is called a child at risk.
- Diversion is for the minor who committed a crime - This is a promise undertaken by the parents to
with discernment. He is over 15 but under 18. He present the minor in court whenever required by the
undergoes diversion. court or any responsible person.
If they cannot agree because the child will
insists that he did not commit the crime or if Restorative Justice
he admits and he already sold the thing and
- Refers to a principle which requires a process of
the parents won‘t pay and would insist on
resolving conflicts with the maximum involvement of
putting the child in jail, the child will
the victim, the offender and the community.
undergo court proceedings. In other words,
- It seeks to obtain: (3 Rs)
diversion is similar with alternative mode of
1) reparation for the victim
dispute resolution.
2) reconciliation of the offender, the offended
- This is voluntary on the part of the victim, the minor
and the community; and
together with the parents.
3) reassurance to the offender that he can be
If the victim won‘t agree and would want
reintegrated into society.
that the child be jailed, there will be no
- Example: Here in Cebu, we have ―Operation Second
diversion program.
Chance‖. In Argao, they have the Regional
- Any admission made by the child will not be used as
Rehabilitation Center for Youth operated by the
evidence against him.
DSWD.
Example: There is diversion, then the child
admitted the crime. He promised to return Status Offenses- refers to offenses which discriminate only
the stolen item and the parents also against a child, while an adult does not suffer any penalty for
promised to pay but they failed to do so, committing similar acts. These shall include curfew violations;
then there will be court proceedings. The truancy, parental disobedience and the like.
admission then made by the child will not be
used against him. - Ana act which is punishable by a minor but is not a
crime when committed by an adult
Intervention
Bahay Pag-asa – it is a 24 hour child caring institution
- Refers to a series of activities which are designed to established funded and managed by the local government
address issues that caused the child to commit an units and licensed and/or accredited non-governmental
offense. This is for the minors who are exempt from organization providing a short term residential care for
liability. Who are these minors? children in conflict with the law who are awaiting the
Those 15 years and below disposition of their cases or transfer to another agency or
Those who are over 15 but under 18 and jurisdiction.
who acted without discernment
- What are these series of activities: - Minors are placed here who are waiting for the
Counselling disposition of their cases.
Skill training - Operation Second Chance
Education
Youth Rehabilitation Center – similar to Bahay Pag-asa
And other activities that will enhance the
child‘s psychological, emotional and psycho-
- This is managed by DSWD
social well-being.
o Such as spiritual enrichment SECTION 6. Minimum Age of Criminal Responsibility. - A
child fifteen (15) years of age or under at the time of the
Recognizance
commission of the offense shall be exempt from criminal
- Refers to an undertaking in lieu of a bond assumed by liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.
a parent or custodian who shall be responsible for the
appearance in court of the child in conflict with the
A child above fifteen (15) years but below eighteen (18) years
law, when required.
of age shall likewise be exempt from criminal liability and be
subjected to an intervention program, unless he/she has acted commit a crime, he shall be subjected to evaluation to
with discernment, in which case, such child shall be subjected determine if he acted with discernment with the
to the appropriate proceedings in accordance with this Act. DSWD.
- If he acted with discernment then he shall be charged
The exemption from criminal liability herein established does - The information must allege that he acted with
discernment and proved in trial
not include exemption from civil liability, which shall be
enforced in accordance with existing laws. The presumption is minority
- The face of the child
- Exactly 15 years old is exempt
- Deemed to be 15 years old on the day of his 15th Child in Conflict with the Law
birthday
- Intervention program refers to series of activities to The burden of proof
insure that the child will not anymore commit a crime - On the person who questions the minority of the child
To determine the age of the Child: SECTION 20. Children 15 years old and Below
- If 15 years old or below, he is exempt
- Initial contact (the one who arrested the child)
1. Birth Certificate
- If known that the child is under 15 then he shall be
2. Baptismal Certificate
released to his parents
3. Any document that will show the age of the child o He shall be subjected to intervention based
such as school records program because he cannot be imprisoned or
4. Testimonial Evidence in the absence of the charged
foregoing by the parents, classmates, friends, o It will be supervised by the local social
neighbours or even the child himself development officer or to welfare
- The LGUs are mandated to create "Bahay Pag-asa"
5. Physical Appearance of the Child
similar with Operation Second Chance
o 24 hour facility that would take care of the
If a case has already been filed in court and there is a doubt as
minor
to the age of the child, the court has to determine first the age
of the child if the adverse party would question the minority of Local Social Welfare Development Officer
the child or when the defense itself would file a motion to - Determines the appropriate program for the child
determine the age of the child. - If the parents or guardians cannot be located or refuse
to take custody of the child, the child shall be released
to:
1. Duly released to the non-
How to prevent Juvenile Delinquency: governmental (balay pasilonganan)
or religious organization
1. Family 2. Barangay Official or a member of
One of the circumstances that cause child at risk is the Barangay council
3. Local social welfare development
a broken/dysfunctional family.
officer
Basic unit of society 4. DSWD
2. School
3. Mass Media - If found to be dependent, abandoned, neglected and
4. Local Government abused by the parents and the best interest of the
child shall be placed in a Bahay Pag-asa, the parents
August 14, 2016 will be forced to execute an affidavit to give up their
parental authority
Minimum age of criminal liability is 15 years and under
Over 15 but under 18 could still be exempted if they acted Before, a child must be judicially declared to be abandoned.
without discernment - The DSWD must file a petition to the court to be
declared as an abandoned child
Discernment - Once declared abandoned he shall be open for adoption
- Capability to distinguish right from wrong
- Determined by psychologists Foundling:
- When a minor who is over 15 but below 18, would - Parents are unknown
- Birth date is unknown - any person, who in the commission of a crime, makes
- Birthplace is unknown use, takes advantage or profits from the use of
- Given a Certificate of Foundling children including any person who abuses his
authority over the child or who with the abuse of
Now, declaration of abandonment of a child is administrative confidence takes advantage of the vulnerability of the
- DSWD can now declare child as abandoned child and shall induce, threaten or instigate the
- If the child has no parents or guardian commission of the crime, the maximum penalty of the
- Petition for involuntary commitment shall be file by the crime shall be imposed.
DSWD
- Minimum age for children committed to Bahay Pag-asa Section 20-D. Joint Parental Responsibility
is 12 years old - Multi disciplinary team
- The court may require the parents to undergo
Children who are exempt but have committed heinous crimes: counselling or any other intervention that in the
- Over 12 up to 15 and who commits parricide, murder, opinion of the court, would advance the welfare and
infanticide, kidnapping and serious illegal detention best interest of the child
where the victim is killed or raped, robbery with - Parents shall mean:
homicide or rape, destructive arson, rape or car 1. Biological parents of the child
napping where the driver or occupant is killed or 2. Adoptive parents of the child
raped or offenses under RA 9165 punishable for more 3. Individuals who have custody of the child
than 12 years shall be deemed a neglected child under - The parents shall be liable for damages unless they
PD 603 as amended and shall be mandatorily placed prove, to the satisfaction of the court, that they were
in the Bahay Pag-asa in the Intensive Juvenile exercising reasonable
Intervention and Support Center (IJISC) - Due diligence of the parents or else they will be civilly
- Proper petition for the IJISC shall be filed by the local liable
social welfare development officer where the offense
was committed or the DSWD social worker in the SECTION 21. Procedure for Taking the Child into Custody. —
absence of the LSWDO From the moment a child is taken into custody, the law enforcement
- Commitment of the child shall not be less than 1 year officer shall:
until such time that he is ready for integration into
society (e) Avoid displaying or using any firearm, weapon, handcuffs or
another instruments of force or restraint, unless absolutely necessary
SECTION 20-B. Repetition of Offenses
and only after all other methods of control have been exhausted and
- A child who is above 12 years of age up to 15 years of
have failed;
age and who commits for the second time or oftener,
provided that the child was previously subjected to
(i) Immediately but not later than eight (8) hours after apprehension,
community based intervention program shall be
deemed a neglected child under PD 603 and shall turn over custody of the child to the Social Welfare and Development
undergo an intensive intervention program Office or other accredited NGOs, and notify the child's
supervised by the local social welfare and parents/guardians and Public Attorneys' Office of the child's
development officer. If the best interest of the child apprehension. The social welfare and development officer shall
requires, he shall be placed in a youth care facility or explain to the child and the child's parents/guardians the
Bahay Pag-asa. The child‘s parents shall execute a consequences of the child's act with a view towards counseling and
written authorization for the commitment of the rehabilitation, diversion from the criminal justice system, and
child.
reparation, if appropriate;
- If the child has no parents or if they refuse to execute
the proper authorization, a proper petition for
(j) Take the child immediately to the proper medical and health officer
involuntary commitment shall be filed by the DSWD
for a thorough physical and mental examination. The examination
with the court.
- Children who are exempt but are repeat offenders and results shall be kept confidential unless otherwise ordered by the
the crimes committed are not heinous are placed in Family Court. Whenever the medical treatment is required, steps
the Bahay Pag-asa shall be immediately undertaken to provide the same;
- Recidivist children
- They shall be declared abandoned
Section 20-C. Exploitation of Children for Commission of SECTION 22. Duties During Initial Investigation.
Crimes
- aggravating circumstance (a) Proceed in accordance with Section 20 if the child is fifteen
- using minor in the commission of the crime
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(15) years or below or above fifteen (15) but below eighteen conduct diversion proceedings. If they do not agree with
(18) years old, who acted without discernment; and the fiscal, then with the court.
- Right after the apprehension of the child, especially if EX: Once a child is caught snatching, he is subjected to
he is over 15 the social worker shall conduct an diversion (or amicable settlement). If he is caught in the
assessment to determine the appropriate act, he is asked to ask for forgiveness. If he got an item, for
interventions and whether the child aced with
example a cellphone, then he would be asked where he
discernment using the discernment assessment tools
developed by the DSWD gave or sold the cellphone. They would then undergo
- If the child caught is over 15, there must be findings counseling with their parents.
from the DSWD as to whether the child acted with
discernment or not - Diversion is only voluntary
- If the child is 15 years old or below, there must be - If the parties come to an agreement but the child would not
intervention follow or the parents would not follow, then a case will be
filed in court
(b) If the child is above fifteen (15) years old below eighteen - If the diversion proceedings failed because:
(18) and who acted with discernment, proceed to diversion The child does not agree on diversion; or
under the following chapter. The offended party does not agree to diversion; or
- Diversion is the alternative process of determining The parents does not agree to diversion; or
the guilt of the accused without going to court or They agree but later on the parents did not comply
without going to trial with the program then the case will be filed in court for
- Subject to diversion court proceedings.
- Once the parties can agree then there shall be the so-called
diversion program.
CHAPTER 2 - For those cases, which are punishable by more than 6
years, the court shall only conduct the diversion
Diversion proceedings.
- What consists of the diversion program? Under Section 31.
SECTION 23. System of Diversion. — Children in conflict with the
law shall undergo diversion programs without undergoing court
SECTION 31. Kinds of Diversion Programs. — The diversion
proceedings subject to the conditions herein provided:
program shall include adequate socio-cultural and psychological
(a) Where the imposable penalty for the crime committed is not more responses and services for the child. At the different stages where
than six (6) years imprisonment, the law enforcement officer or diversion may be resorted to, the following diversion programs may
Punong Barangay with the assistance of the local social welfare and be agreed upon, such as, but not limited to:
development officer or other members of the LCPC shall conduct
(a) At the level of the Punong Barangay:
mediation, family conferencing and conciliation and, where
appropriate, adopt indigenous modes of conflict resolution in
(1) Restitution of property;
accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the (2) Reparation of the damage caused;
formulation of a diversion program. The child and his/her family
shall be present in these activities. (3) Indemnification for consequential damages;
(b) In victimless crimes where the imposable penalty is not more than (4) Written or oral apology;
six (6) years imprisonment, the local social welfare and development
officer shall meet with the child and his/her parents or guardians for (5) Care, guidance and supervision orders;
the development of the appropriate diversion and rehabilitation
(6) Counseling for the child in conflict with the law and the
program, in coordination with the BCPC;
child's family;
(c) Where the imposable penalty for the crime committed exceeds six
(7) Attendance in trainings, seminars and lectures on:
(6) years imprisonment, diversion measures may be resorted to only
by the court.
(i) Anger management skills;
- Where does the diversion proceedings start? It starts with (ii) Problem solving and/or conflict resolution skills;
the law enforcement level – the police. Then in the
barangay level. Then if it is filed in court, the fiscal will still (iii) Values formation; and
(iv) Otherskills which will aid the child in dealing with 3. If he cannot put up bail or released on recognizance –
situations which can lead to repetition of the offense; he will placed at BahayPag-asa or youth rehabilitation
center
(8) Participation in available community-based programs, - Why are they not placed in a jail for adults? The minors
including community service; or might be influenced.
SECTION 35. Release on Recognizance. — Where a child is - Reckoning period is at the time of the commission of the
detained, the court shall order: offense
- Suspended sentence: the minor will be sentenced if he is
(a) The release of the minor or recognizance to his/her parents and guilty and the service of his sentence shall be suspended
- Instead of requiring him to serve his sentence, the minor
other suitable persons;
shall be brought to a rehabilitation center where he shall
(b) The release of the child in conflict with the law on bail; or stay for a certain period of time but before reaching 21
- If he will be pronounced guilty by the court, he will not be
told to serve his sentence but instead he will be placed in a
(c) The transfer of the minor to a youth detention home/youth
youth rehabilitation center
rehabilitation center.
- What does the minor do in a youth rehabilitation center?
He will be observed, rehabilitated. The rehabilitation center
The court shall not order the detention of a child in a jail pending
personnel submit a monthly progress report to the court
trial or hearing of his/her case. and states whether the minor is rehabilitated or not.
- The court will cite a period for as long as it would not
- If possible, no bail shall be required in releasing the minor exceed 21.
but instead he shall be released on recognizance. - If the report of the rehabilitation center is favorable, the
- Recognizance: promise that the minor shall be presented in case of the minor shall be dismissed. As if he did not
court whenever the court would require his presence commit any crime.
- This is not available in all cases. This is only available to - Suppose the minor is already at age, over 18 at the time of
minor cases. the promulgation can he still avail of the benefit of
- Who promises that the minor will be presented when suspended sentence? Yes, provided that he is not yet 21
needed? years old or over at the time of promulgation.
1. Parents; or
2. Responsible members of the community such as the SECTION 51. Confinement of Convicted Children in Agricultural
Barangay Captain; or Camps and other Training Facilities. — A child in conflict with the
law may, after conviction and upon order of the court, be made to
serve his/her sentence, in lieu of confinement in a regular penal
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institution, in an agricultural camp and other training facilities that - Those minors whose cases are still pending will be placed
may be established, maintained, supervised and controlled by the in the rehabilitation center for youth offenders. The time
BUCOR, in coordination with the DSWD. served will be credited to their sentence.
- If he was a minor at the time he committed the crime but at SECTION 42. Probation as an Alternative to Imprisonment. — The
the time of the promulgation he is already over 21. What court may, after it shall have convicted and sentenced a child in
should be done with the offender? He shall be detained or conflict with the law, and upon application at any time, place the
required to serve his sentence in an agricultural camp, child, on probation in lieu of service of his/her sentence taking into
which is jointly managed, by the Bureau of Correction and account the best interest of the child. For this purpose, Section 4 of
DSWD. Presidential Decree No. 968, otherwise known as the "Probation Law
- What about those minors who committed heinous crime, of 1976," is hereby amended accordingly.
can they also enjoy suspended sentence? Yes, suspended
sentence also applies to cases punishable by reclusion
- Those minors who are serving sentence since they were not
perpetua or life sentence. (PpvsSarcia, September 10, 2009)
rehabilitated they can apply for probation.
- As a general rule, one applies for probation during the
period for appeal. But the rule is different as regards a
minor because the minor can apply for probation anytime.
- We all know that we can only apply for probation if the
SECTION 39. Discharge of the Child in Conflict with the Law. —
sentence imposed is 6 years but under RA 9165 the
Upon the recommendation of the social worker who has custody of probation that can be applied for can be availed even if the
the child, the court shall dismiss the case against the child whose sentence imposed is over 6years, except when the charge is
sentence has been suspended and against whom disposition measures for selling. Even if one is sentenced to 20 years
have been issued, and shall order the final discharge of the child if it imprisonment under RA 9165, for as long as it is not
finds that the objective of the disposition measures have been selling, one can apply for probation.
fulfilled.
Section 43 The records and proceedings of the case of the child
The discharge of the child in conflict with the law shall not affect the in conflict with the law shall be CONFIDENTIAL.
civil liability resulting from the commission of the offense, which
shall be enforced in accordance with law. - A person who has been in conflict with the law as a
child shall not be held under any provision of law, to
- Suppose the report of the rehabilitation center where the be guilty of perjury or of concealment or
child convicted of a crime is unfavorable, what should the misrepresentation by reason of his/her failure to
court do? If the child is found to be incorrigible (he has not acknowledge the case or recite any fact related thereto
rehabilitated) then he shall be brought to the court and he in response to any inquiry made to him/her for any
shall now be required to serve his sentence. purpose.
- The benefit of suspended sentence is automatic. Unlike in
probation, there is no need for the minor to apply. The Section 57 STATUS OFFENSES
court handling the case during promulgation and upon
termination of the case, that the minor is still 21 years or
- An act which is considered a crime when committed
below shall suspend the sentence. There is no need for
by a minor but when the same act is committed by an
application.
adult, it is not a crime.
- The benefits under RA 9344 can only be enjoyed by a
person who is a minor by the time of the commission of the
crime. The use of the term minor is limited, it only refers to Section 57- A Violations of Local Ordinances
a person who is below 18. It does not cover a person above
18 at the time of the commission of the crime, although his - Ordinances enacted by local government concerning
mental age is equivalent to that of a minor. Unlike in RA juvenile status offenses shall be for the protection of
7610 and RA 9262, the term minor covers a person over 18 children. NO PENALTY SHALL BE IMPOSED ON
but unable to protect themselves. (Ppvs Rojas, June 4, 2014) CHILDREN FOR SAID VIOLATIONS and they
It is not based on the mental age of the accused. shall instead be brought to their residence or to any
barangay official at the barangay hall to be released to
SECTION 41. Credit in Service of Sentence. — The child in conflict
the custody of their parents.
with the law shall be credited in the services of his/her sentence with
the full time spent in actual commitment and detention under this This includes:
Act.
1. Curfew violations
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ascendancy; debt bondage or deception including any work or -as a general rule, there is no attempted stage in special penal
services instructed from any person under the menace of laws; however as an exception, if the law itself defines an
penalty. attempted stage.
Debt bondage – when the debtor works as payment for a debt Attempted trafficking of persons – where there are acts to
or security, but the length, nature, or value of services is not initiate the commission of a trafficking offense but the offender
defined towards the liquidation of the debt. failed to or did not execute all elements of the crime by
accident or by reason of some cause other than voluntary
Sex Tourism – refers to a program organized by travel and desistance such overt acts shall be deemed as an attempt to
tourism related establishments and individuals which consists commit an act of trafficking of persons
of tourism packages or activities utilizing and offering escort
and sexual services as enticement for tourists; this includes In cases where the victim is a child, any of the following acts
sexual services and practices offered during rest and recreation are deemed as attempted trafficking of persons:
periods for members of the military.
a. facilitating the travel of a child who travels alone to a foreign
Acts of trafficking of persons: country without valid reasons;
e. to recruit/transport etc., receive or adopt a child to engage -whoever has knowledge to the commission of the crime and
in armed activities in the Philippines or abroad. without having participated therein as principal/accomplice
take part in its commission in any of the ff. manners: a.
f. to recruit/transfer/transport etc., a person by means defined profiting themselves; b. by concealing/destroying the body of
in section 3 of this act, for purposes of forced labor, debt the crime; c.harboring/concealing the escape of the principal
bondage or in a scheme to make a person believe that if he did (refer to article 19)
not perform such labor/services he/she or another person
shall suffer physical harm or restrain. Section 5.Acts that Promote Trafficking in Persons. – The
following acts which promote or facilitate trafficking in
g. to recruit/transfer/harbor etc., a child for purposes of persons, shall be unlawful:
exploitation or treating them including but not limited to the
act of bearing or selling the child for any consideration/barter (a) To knowingly lease or sublease, use or allow to be used any
for purposes of exploitation; house, building or establishment for the purpose of promoting
trafficking in persons;
h. use or procuring/offering of a child for the production and
trafficking of drugs (b) To produce, print and issue or distribute unissued,
tampered or fake counseling certificates, registration stickers,
i. use or procuring of a child for illegal activities or work by overseas employment certificates or other certificates of any
nature of which is likely to harm their safety/morals or health government agency which issues these certificates, decals and
such other markers as proof of compliance with government
j. organize or direct other persons to commit offenses defined regulatory and pre-departure requirements for the purpose of
as acts of trafficking promoting trafficking in persons;
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tending to establish the identity of the trafficked person and Section 9.Venue. – A criminal action arising from violation of
his or her family shall not be disclosed to the public. this Act shall be filed where the offense was committed, or
where any of its elements occurred, or where the trafficked
It shall be unlawful for any editor, publisher, and reporter or person actually resides at the time of the commission of the
columnist in case of printed materials, announcer or producer offense: Provided, That the court where the criminal action is
in case of television and radio, producer and director of a film first filed shall acquire jurisdiction to the exclusion of other
in case of the movie industry, or any person utilizing tri-media courts.
facilities or electronic information technology to cause
publicity of the name, personal circumstances, or any SEC. 11.Use of Trafficked Persons. – Any person who buys or
information tending to establish the identity of the trafficked engages the services of a trafficked person for prostitution
person except when the trafficked person in a written shall be penalized with the following: Provided, That the
statement duly notarized knowingly, voluntarily and willingly Probation Law (Presidential Decree No. 968) shall not apply:
waives said confidentiality.
(a) PrisionCorreccional in its maximum period to prision
Law enforcement officers, prosecutors, judges, court personnel, mayor or six (6) years to twelve (12) years imprisonment and a
social workers and medical practitioners shall be trained on the fine of not less than Fifty thousand pesos (P50,000.00) but not
importance of maintaining confidentiality as a means to more than One hundred thousand pesos (P100,000.00):
protect the right to privacy of victims and to encourage victims Provided, however, That the following acts shall be exempted
to file complaints. thereto:
The name of the accused may be divulged. (in the old
law, the accused was confidential) (1) If an offense under paragraph (a) involves sexual
The offended party or her family‘s name shall be intercourse or lascivious conduct with a child, the penalty
confidential. shall be reclusion temporal in its medium period to
Confidentiality can be waived by the offended party reclusion perpetua or seventeen (17) years to forty (40)
only thru a written statement duly notarized. It years imprisonment and a fine of not less than Five
cannot be done orally. hundred thousand pesos (P500,000.00) but not more than
One million pesos (P1,000,000.00);
SEC. 8.Initiation and Prosecution of Cases. –
This is important! (2) If an offense under paragraph (a) involves carnal
(a) Initiation of Investigation. – Law enforcement agencies are knowledge of, or sexual intercourse with, a male or
mandated to immediately initiate investigation and counter- female trafficking victim and also involves the use of
trafficking-intelligence gathering upon receipt of statements or force or intimidation, to a victim deprived of reason or to
affidavit from victims of trafficking, migrant workers, or their an unconscious victim, or a victim under twelve (12)
families who are in possession of knowledge or information years of age, instead of the penalty prescribed in the
about trafficking in persons cases. subparagraph above the penalty shall be a fine of not less
than One million pesos (P1,000,000.00) but not more than
(b) Prosecution of Cases. – Any person who has personal Five million pesos (P5,000,000.00) and imprisonment of
knowledge of the commission of any offense under this Act, reclusion perpetua or forty (40) years imprisonment with
such as the trafficked person, the parents, spouse, siblings, no possibility of parole; except that if a person violating
children or legal guardian may file a complaint for trafficking. paragraph (a) of this section knows the person that
So trafficking is a public crime provided prostitution services is in fact a victim of
trafficking, the offender shall not be likewise penalized
(c) Affidavit of Desistance. – Cases involving trafficking in under this section but under Section 10 as a person
persons should not be dismissed based on the affidavit of violating Section 4; and if in committing such an offense,
desistance executed by the victims or their parents or legal the offender also knows a qualifying circumstance for
guardians. Public and private prosecutors are directed to trafficking, the offender shall be penalized under Section
oppose and manifest objections to motions for dismissal. 10 for qualified trafficking. If in violating this section the
offender also violates Section 4, the offender shall be
This cannot be compromised.
penalized under Section 10 and, if applicable, for qualified
Any act involving the means provided in this Act or any trafficking instead of under this section;
attempt thereof for the purpose of securing an Affidavit of This is another aggravating circumstance. (those
Desistance from the complainant shall be punishable under underscored and made Bold)
this Act. ―and if in committing such an offense, the offender
Look at the penalties. You don‘t have to memorize, also knows a qualifying circumstance for trafficking,
just so you know how serious the offense is. It is the offender shall be penalized under Section 10 for
imprisonment of 20 years. qualified trafficking.‖ – if you knew that the
prostitute is a trafficked victim, then you are also
liable for qualified trafficking
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An analytical test using a device, tool or equipment with a - Any person who pays for, raises or supplies money
different chemical or physical principle that is more
for, or underwrites any of the illegal activities.
specific which will validate and confirm the result of the
screening test. - This refers to the drug lords
If the result of the confirmatory test is still positive, then Illegal Trafficking
that is now conclusive to establish drug use.
Controlled Precursors and Essential Chemicals - The illegal cultivation, culture, delivery,
administration, dispensation, manufacture, sale,
Dangerous Drugs trading, transportation, distribution, importation,
Can rugby be considered a dangerous drug under this exportation and possession of any dangerous drug
law? No. That is penalized by PD 1619; it is not considered and/or controlled precursor and essential chemical.
a dangerous drug as defined under this law.
Methylenedioxymethamphetamine (MDMA) or commonly
How about nobane? It is now classified as dangerous
drugs. known as "Ecstasy", or by its any other name
Methamphetamine Hydrochloride or commonly known as - Any person who sells, trades, administers,
"Shabu", "Ice", "Meth", or by its any other name dispenses, delivers or gives away to another, on any
terms whatsoever, or distributes, dispatches in transit
- Refers to the drug having such chemical composition, or transports dangerous drugs or who acts as a broker
including any of its isomers or derivatives in any in any of such transactions, in violation of this Act.
form. - They are referred to as sellers of dangerous drugs.
- This is the common prohibited drug.
Sell
Opium
- Any act of giving away any dangerous drug and/or
- Refers to the coagulated juice of the opium poppy and controlled precursor and essential chemical whether
embraces every kind, class and character of opium, for money or any other consideration.
whether crude or prepared; the ashes or refuse of the - This includes barter.
same; narcotic preparations thereof or therefrom; -
morphine or any alkaloid of opium; preparations in
which opium, morphine or any alkaloid of opium Use
enters as an ingredient; opium poppy; opium poppy
straw; and leaves or wrappings of opium leaves, - Any act of injecting, intravenously or
whether prepared for use or not. intramuscularly, of consuming, either by chewing,
smoking, sniffing, eating, swallowing, drinking or
Planting of Evidence otherwise introducing into the physiological system
of the body, and of the dangerous drugs.
- the willful act by any person of maliciously and - This refers to the acts or ways of consuming or using
surreptitiously inserting, placing, adding or attaching the dangerous drugs
directly or indirectly, through any overt or covert act,
whatever quantity of any dangerous drug and/or Unlawful Acts:
controlled precursor and essential chemical in the
person, house, effects or in the immediate vicinity of 1. Section 4 - Importation of Dangerous Drugs and/or
an innocent individual for the purpose of implicating, Controlled Precursors and Essential Chemicals
incriminating or imputing the commission of any - Importation
violation of this Act. Penalty: Life sentence regardless of the
- This is what we call Incriminating against innocent quantity or purity. Ex: even if 1 gram from
person. Japan to the Philippines
- In RPC, incriminating against innocent person has a The bringing of dangerous drugs from a
lesser penalty. But here in RA 9165, the penalty is life foreign country into our country.
sentence. It is necessary that the prosecution should
establish or prove that the dangerous drugs
Protector/Coddler came from a foreign country. If not proven,
the accused cannot be convicted by
- Any person who knowingly and willfully consents importation.
to the unlawful acts provided for in this Act and However, he cannot be acquitted. He can be
uses his influence, power or position in shielding, prosecuted for transporting dangerous drugs.
harboring, screening or facilitating the escape of any This refers to the conveying of illegal drugs from
person he knows, or has reasonable grounds to one place to another.
believe on or suspects, has violated the provisions of The importer could also be prosecuted for
this Act in order to prevent the arrest, prosecution possession because when you import,
and conviction of the violator.
necessarily you are in possession of drugs.
- In RPC, his acts are accessory. But here, he is called
So if not prosecuted in importation, can be
coddler or protector.
liable for transportation or possession.
Pusher If convicted for importation or transportation,
you cannot be convicted for possession because
- What is required is merely the delivery of the thing sold away to another, distribute, dispatch in transit or transport any
because payment could be done later on controlled precursor and essential chemical, or shall act as a broker in
- The presentation of the marked money is immaterial in the such transactions.
crime of illegal sale because this crime can be committee
even without consideration or payment or the payment
PENALTY FOR CONTROLLED PRECURSORS AND
could be done later. (Ppvs Reyes, GR 194606, February 18,
2015) ESSENTIAL CHEMICALS
―GIVE AWAY TO ANOTHER‖ 2. For drug pushers who use minors or mentally incapacitated
individuals as runners, couriers and messengers, or in any
other capacity directly connected to the dangerous drugs and/or
EX: You have an addict best friend. On his birthday, as a
controlled precursors and essential chemicals trade, the
gift you gave him shabu. What is your liability? Section 5. maximum penalty shall be imposed in every case.
3. If the victim of the offense is a minor or a mentally
OBJECTIVE TEST incapacitated individual, or should a dangerous drug and/or a
controlled precursor and essential chemical involved in any
- The "objective test" in determining the credibility of offense herein provided be the proximate cause of death of a
prosecution witnesses regarding the conduct of buy-bust victim thereof, the maximum penalty provided for under this
operation provides that it is the duty of the prosecution to Section shall be imposed.
present a complete picture detailing the buy-bust operation
— from the initial contact between the poseur-buyer and The maximum penalty provided for under this Section shall be
the pusher, the offer to purchase, the promise or payment imposed upon any person who organizes, manages or acts as a
of the consideration, until the consummation of the sale by "financier" of any of the illegal activities prescribed in this Section.
the delivery of the illegal subject of sale. The manner by
which the initial contact was made, the offer to purchase
- These are the drug lords
the drug, the payment of the buy-bust money, and the
delivery of the illegal drug must be the subject of strict The penalty of twelve (12) years and one (1) day to twenty (20) years
scrutiny by courts to insure that law-abiding citizens are
of imprisonment and a fine ranging from One hundred thousand
not unlawfully induced to commit an offense. (Ppvs Clara y
Buhain, GR 195528, July 24, 2013, 715 PHIL 259-284) pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00)
- Poseur buyer – one who acted as if he was a buyer but in shall be imposed upon any person, who acts as a "protector/coddler"
truth he is a detective of any violator of the provisions under this Section.
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) house was at that time being raided. Are you
shall be imposed upon any person or group of persons who shall liable?
maintain a den, dive or resort where any dangerous drug is used or
sold in any form. Answer: NO. Because you were not aware that
the place was a drug den and you did not
DEN knowingly visit the same.
- Drug den is a place where drugs are habitually used by Section 8. Manufacture of Dangerous Drugs and/or Controlled
people who frequented it
Precursors and Essential Chemicals.
- In order to be held liable for maintaining drug den, it must
be proved that the place is habitually used by the people
who frequented it and habitually use drugs - Same penalty with importing and selling.
- Prosecution must be able to show evidence or present
witness that such witness frequented the place at least - The penalty of life imprisonment to death and a
twice or thrice, he narrates what he sees and that he knows fine ranging 500K to 10M
the people who go to such place to use drugs
- If evidence of the prosecution or witness would say that he
- The penalty of imprisonment ranging from 12
was only able to enter such place only once then the
accused would not be convicted of maintain a drug den years and 1 day to twenty 20 years and a fine
- There must be habituality of using drugs in that place ranging from 100K to 500K shall be imposed
otherwise the accused cannot be convicted upon any person, who, unless authorized by law,
shall manufacture any controlled precursor and
Section 6. Maintenance of a den, dive or resort essential chemical.
Section 10. Manufacture or Delivery of Equipment, Instrument, woman to open her bag and so the sachet of shabu
Apparatus, and Other Paraphernalia for Dangerous Drugs was recovered from her. She was charged for
and/or Controlled Precursors and Essential Chemicals. possession of dangerous drugs. Is she liable?
a. any person who shall deliver, ANSWER: NO. Because of the absence of the animus
b. possess with intent to deliver, or possidendi.
c. manufacture with intent to deliver equipment,
instrument, apparatus and other paraphernalia - Case: A house was searched by virtue of a search
for dangerous drugs, warrant. There were packs of shabu recovered.
d. knowing, or under circumstances where one During the trial the accused argued that he is not the
reasonably should know, that it will be used to only person residing in that house. Is that define
plant, propagate, cultivate, grow, harvest, meritorious?
manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, ANSWER: This crime of possession of dd is mala
store, contain or conceal any dangerous drug prohibita hence lack of criminal intent is not a
and/or controlled precursor and essential defense. HOWEVER the prosecution must prove that
chemical in violation of this Act. the accused had the intent to possess.
- THE PENALTY HERE DEPENDS UPON THE ACTUAL POSSESSION is when the drug is in the
WEIGHT OF THE DANGEROUS DRUGS. immediate physical possession and control of the
accused. On the other hand,
If the weight is less than 5 grams, the penalty is 12
years, 1 day to 20 years. CONSTRUCTIVE POSSESSION exists when the
drug is under the dominion and control of the
- TN that this is bailable because the penalty is not accused, or when he has the right to exercise control
life sentence, but note that even if this is bailable, and dominion over the place where it is found.
the bail is high. That is, P10k per year of EXCLUSIVE POSSESSION OR CONTROL IS NOT
imposable penalty. NECESSARY. The accused cannot avoid conviction if
his right to exercise dominion over the place where
If the weight is over 5 grams but not over 10 grams, the contraband is located is shared with another. Pp
that is 20 years and 1 day to life imprisonment. vs Terra 430 SCRA 134
IF the weight is over 10 grams but less than 50, life - Example: The accused was caught selling dangerous
imprisonment. drugs. Naturally he was also in possession of it.
Could he be also charged with violation of Section 11
for possession of dangerous drugs aside from sale?
1. The offender is in possession of dangerous drug HOWEVER, if the seller is caught to be in possession
2. Such possession is not authorized by law of another amount of shabu intended for some future
3. The accused freely and consciously possessed the transactions, he could also be held liable for
dangerous drug- animus possidendi or intent to possession. IOW, for him to be not liable for
possess. possession, the shabu in his possession must be equal
to the amount of shabu transacted. Pp. vs. Dela Pena
BAR QUESTION: GR NO. 207635, February 18, 2015
A woman was walking with her boyfriend. When Sec. 12. Possession of equipment, apparatus or other
they were about to pass by a checkpoint, the boy paraphernalia
handed over to his girlfriend a small sachet of shabu
and told her to hide it in her bag. The policeman saw -in order for seller not to be liable also for possession, the
the boy handing over something to the woman. The
shabu sold must be equal to that be possessed; if there are
woman didn‘t know that it was shabu. When they
passed by the checkpoint, the policeman asked the
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excess, probably for future transactions, then the seller is also commission of a crime which is not in violation of this act, and
liable under this section. you are subjected to drug test, then the same is illegal for
violation of the accused against self-incrimination.PP vs Jaime
-for any purposes intended under the preceding sections Dela Cruz Gr. No. 200748 July 23, 2014
-possession of such is a presumption that the offender also -another instance wherein there could be drug test is in cases
violated section 15 where mandatory or random drug testing is required under
section 36 of this act; for example if you are a government or a
- before, for example you got caught in a checkpoint in
private worker of a private company, you can be subject for
possession of such drugs, 2 violations are presumed to be
drug test, if found positive, aside from administrative charges,
committed, that is section 12 and 15; now, you can only be held
you can be held liable for section 15; Another is road side drug
liable for section 12.
test for drivers.
-in case, an accused was made subject to a buy-bust operation,
Sec. 16. Cultivation or culture of plants classified as Dangerous
later, he was also searched, drugs were found, how many
Drugs
violations? There are 3, sec. 5 for selling, and sec. 11 for
possessing some or more drugs intended for future -penalty is life imprisonment + fine.
transactions, plus there are drug paraphernalia, so section 12 Is
also liable. Question, is the accused liable for all the 3 Sec. 17. Maintenance and keeping of original records of
violations? Yes. PP vsCasakop G.R. no. 210454 transactions on dangerous drugs or controlled precursors and
essential chemicals
Sec. 13.Possession of Dangerous drugs during parties/social
gatherings or meetings Sec. 18. Unnecessary prescription of dangerous drugs
-this is an aggravating circumstance for section 11. Sec. 19. Unlawful prescription of dangerous drugs
Sec. 14. Possession of those mentioned in sec. 12 in - Take not that there are drugs that are allowed if there
parties/social gatherings or meetings is a proper prescription from a licensed medical
practitioner; otherwise, said person who prescribed
-also an aggravating circumstance for sec. 12 such dangerous drug would be liable under this
section
Sec. 15. Use of Dangerous drugs
Sec. 20. Forfeiture of the proceeds from trafficking of
-A person apprehended or arrested who is found to be positive
dangerous drugs
of any use of dangerous drugs after confirmatory test; take
note there are 2 tests, the screening test and the confirmatory Sec. 21. Custody and disposition of
test, the latter being more thorough than the other; confiscated/seized/surrendered dangerous drugs
-what about for the 2nd time? Now penalty is 6yrs and 1 day to Inventory – apprehending law enforcers must make a list of
12yrs; provided that this section should not be applicable if the items confiscated and take pictures of the same in the
such person is found in possession of other drugs intended for presence of the accused.
other purposes.
August 19, 2016
-take note: violation of section 11 + section 15 = only section 11
is violated; SECTION 20. Confiscation and Forfeiture of the Proceeds or
Instruments of the Unlawful Act, Including the Properties or
-before if you are arrested for any crime with a penalty for Proceeds Derived from the Illegal Trafficking of Dangerous Drugs
more than 6yrs, you will be subjected for drug test; now said and/or Precursors and Essential Chemicals. — Every penalty
provision is declared unconstitutional, an accused can only be imposed for the unlawful importation, sale, trading, administration,
subjected for a drug test in violation of any provisions of this dispensation, delivery, distribution, transportation or manufacture of
law, not of other crimes; hence if you are arrested for any dangerous drug and/or controlled precursor and essential
chemical, the cultivation or culture of plants which are sources of invalid such seizures and custody over said items;
dangerous drugs, and the possession of any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs including
other laboratory equipment, shall carry with it the confiscation and REQUIREMENTS OF RA 9165
forfeiture, in favor of the government, of all the proceeds and
1. Right after the confiscation of the dangerous drugs or
properties derived from the unlawful act, including, but not limited
equipment‘s or paraphernalia there should be inventory.
to, money and other assets obtained thereby, and the instruments or Inventory is the apprehending law enforcers must make a
tools with which the particular unlawful act was committed, unless list of the items confiscated.
they are the property of a third person not liable for the unlawful act, 2. Aside from making an inventory, there should be a picture
but those which are not of lawful commerce shall be ordered taken on the items confiscated in the presence of the
destroyed without delay pursuant to the provisions of Section 21 of accused of his representative, elected public official (such
this Act. as barangay councilor or barangay captain), representative
from the National Prosecution Service (from the Fiscals
- Similar to the provision of Article 45, RPC – the proceeds, Office, or from the DOJ), or the representative media.
as well as the instruments used in the commission of the These people who are required to be present during the
crime shall be confiscated and forfeited in favor of the conduct of the inventory as well as the photographing are
government require to sign the copies of the inventory or of the list and
- The money which are the proceeds of the unlawful acts be given a copy thereof.
penalized under this law, such as proceeds of selling 3. Aside from inventory there should also be markings or
dangerous drugs, importing dangerous drugs, including distinguishing marks on the items confiscated for
properties obtained or derived from the unlawful act identification purposes in order to avoid switching,
- Those houses that are built using the proceeds of the illegal planting or contamination of evidence– not found in the
trade of dangerous drugs shall be forfeited in favor of the law but in jurisprudence. The person making the marking
government and those dangerous drugs confiscated shall will sign the same. The marking should be made in the
be destroyed. presence of the accused and immediately after
confiscation.
*****SECTION 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
WHERE INVENTORY MADE
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
- Where should the inventory be made, as well as the
PDEA shall take charge and have custody of all dangerous drugs, inventory and taking of pictures? It should be made at the
plant sources of dangerous drugs, controlled precursors and essential place where the dangerous drugs or the equipment‘s were
chemicals, as well as instruments/paraphernalia and/or laboratory taken or recovered.
equipment so confiscated, seized and/or surrendered, for proper - If by virtue of a search warrant: at the place where the
disposition in the following manner: items were taken
- If by virtue of a warrantless arrest, such as a checkpoint: at
(1) The apprehending team having initial custody and the nearest police station or office of the apprehending
control of the dangerous drugs, controlled precursors and officer or team
essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the CONFISCATION
seized items and photograph the same in the presence of
the accused or the persons from whom such items were - If these requirements are not complied with the weight of
confiscated and/or seized, or his/her representative or the items will be questionable
counsel, with an elected public official and a - In the confiscation of drugs, the prosecution must be able
representative of the National Prosecution Service or the to prove the chain of custody
media who shall be required to sign the copies of the inventory - Chain of custody: refers to the duly recorded authorized
and be given a copy thereof: Provided, That the physical movements of the custody of the confiscated items from
inventory and photograph shall be conducted at the place the accused to the court
where the search warrant is served; or at the nearest police - The requirements constitute the first link because the first
station or at the nearest office of the apprehending officer/team, link constitutes the measure of the marking
whichever is practicable, in case of warrantless seizures:
- Chain of custody: From the accused to the apprehending
Provided, finally, That noncompliance of these requirements
officer then turned over to the investigator then to the
under justifiable grounds, as long as the integrity and the
crime laboratory who examines then brought to the court
evidentiary value of the seized items are properly preserved by
as evidence
the apprehending officer/team, shall not render void and
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- The prosecution has to prove that the items presented in preservation of the integrity and the evidentiary value of
court are the very same items which were confiscated from the seized items as they will be used to determine the guilt
the possession of the accused. To prove it, all persons who or innocence of the accused. (Pp vs Osman, GR 201100,
have come in possession of those items brought to court February 4, 2015)
from the time they were confiscated from the accused up to - The chain of custody requirement is essential to ensure that
the time that the items were brought to court should be doubts regarding the identity of the evidence are removed
required to testify so that the chain of custody can be through the monitoring and tracking of the movements of
established. the seized drugs from the accused, to the police, to the
- If there is no inventory, photographing, and marking – the forensic chemist, and finally to the court. The law requires
first link – then there could be doubt whether it is the same "substantial" and not necessarily "perfect adherence" as
items confiscated from the accused. It could still be long as it can be proven that the integrity and the
admitted but the court may not believe that these are items evidentiary value of the seized items were preserved.(Pp vs
from the possession of the accused. Piad, GR 213607, January 25, 2016)
- Theissue of non-compliance with the said section is not of
admissibility, but of weight to be given on the evidence.
EXCEPTION AS TO COMPLIANCE OF SECTION 21 The non-compliance of Section 21 does not make the arrest
illegal or items confiscated from the accused inadmissible.
1. There are justifiable grounds (Pp vs Dahil, GR 212196, January 12, 2015)
2. If the integrity and the evidentiary value of the seized
items are properly preserved
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of
JUSTIFIABLE GROUNDS Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
- One conducts a search warrant and was able to confiscate Equipment.
dangerous drugs. Right after the search, the neighbors
started throwing rocks at the apprehending officers. Are (1) The apprehending team having initial custody and
they still going to conduct the inventory at the crime
control of the drugs shall, immediately after seizure
scene? The apprehending officers can leave to save their
and confiscation, physically inventory and
lives. As to the marking of exhibits, even if it states that if it
is virtue of a search warrant the inventory, as well as the photograph the same in the presence of the accused or
marking should be made at the place where the search was the person/s from whom such items were confiscated
made, it is not anymore at the place of incident but it could and/or seized, or his/her representative or counsel, a
be at the police station. representative from the media and the Department of
- Justifiable grounds + there should be efforts to preserve the Justice (DOJ), and any elected public official who
integrity and evidentiary value of the seized items shall be required to sign the copies of the inventory
- The non-compliance of Section 21 will not affect the and be given a copy thereof;
admissibility of the items but only the weight
- Conduct of inventory, photographing and marking is
Q: Is prior surveillance a prerequisite to the validity of a buy
important in order to prove the chain of custody
bust or an entrapment operation?
SC: It must be done by the officer himself and not by in the commission of a crime by an offender, and the
the accused. Pp. vs Resurrection, 603 SCRA 510 application of the penalty provided for in the Revised
Penal Code shall be applicable.
(2) Within twenty-four (24) hours upon confiscation, the
items shall be submitted to the PDEA Forensic - Example: If it is proven that before killing the victim,
Laboratory for a qualitative and quantitative the accused is positive of drugs, the crime committed
examination; would be MURDER. Because the positive finding for
the use of dangerous drugs will be considered as
Section 22. Grant of Compensation, Reward and Award. QUALIFYING AGGRAVATING CIRCUMSTANCE.
- to any person providing information and to law Section 26. ATTEMPT OR CONSPIRACY.
enforcers participating in the operation, which results
in the successful confiscation, seizure or surrender of GR: For violations of SPLs, there is no attempted or
dangerous drugs, plant sources of dangerous drugs, frustrated stage.
and controlled precursors and essential chemicals. EXC: If a particular special law provides that an
attempted stage of a violation of a provision of that
Section 23. Plea-Bargaining Provision. law is punishable then there is attempted stage of a
violation of that law.
- This is absolutely prohibited for violations under RA
9165. RA 9165 provides that any attempt or conspiracy to commit
the following unlawful acts shall be penalized by the same
Section 24. Non-Applicability of the Probation Law for Drug penalty prescribed for the commission of the same.
Traffickers and Pushers.
Mere conspiracy to commit any of the following acts is
- The benefits of probation law are available to those punishable:
convicted for violations of RA 9165, EXCEPT for
selling. (a) Importation of any dangerous drug and/or controlled
precursor and essential chemical;
- For example, section 12 Possession of drug (b) Sale, trading, administration, dispensation, delivery,
paraphernalias is probationable because its penalty is distribution and transportation of any dangerous
less than 6 years, that is 6 months and 1 day to 4 drug and/or controlled precursor and essential
years. chemical;
(c) Maintenance of a den, dive or resort where any
NOTE: dangerous drug is used in any form;
(d) Manufacture of any dangerous drug and/or
Section 70. Probation or Community Service for a controlled precursor and essential chemical; and
First-Time Minor Offender in Lieu of Imprisonment. (e) Cultivation or culture of plants which are sources of
dangerous drugs.
- A minor can apply for probation even if his penalty
exceeds 6 years. EXCEPT for selling. - Example: The policeman conducted a buybust
operation against a pusher. When the pusher was
- Remember also that when the violator is a minor, the about to give the shabu to the poseur buyer, he
penalty that should be imposed on him is not life realized that the person he was transacting with was a
sentence but reclusion perpetua. law enforcer. So instead of giving the shabu to the law
Section 25. Qualifying Aggravating Circumstances in the enforcer, he ranaway. What is the crime committed?
Commission of a Crime by an Offender Under the Influence of
Dangerous Drugs. ANS. He committed an attempted sale of dangerous
drugs. Attempted only because there was no delivery.
- Notwithstanding the provisions of any law to the There was only an attempt to deliver. So long as the
contrary, a positive finding for the use of dangerous accused had the intent to sell and has shown overt
drugs shall be a qualifying aggravating circumstance acts- such as showing the dangerous drugs to the
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CRIMINAL LAW REVIEW (Book 1)
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buyer, he is already liable for attempted sale. Pp vs office, if those found guilty of such unlawful acts are
Adam ♥ October 13, 2003 government officials and employees.
- Penalty: the same with selling. Section 29. Criminal Liability for Planting of Evidence.
Section 27. Criminal Liability of a Public Officer or Employee - This is the penalty for planting evidence.
for Misappropriation, Misapplication or Failure to Account
for the Confiscated, Seized and/or Surrendered Dangerous - Any person who is found guilty of "planting" any
Drugs dangerous drug and/or controlled precursor and
essential chemical, regardless of quantity and purity,
- This is the purpose of the requisites of inventory and shall suffer the penalty of death.
picture taking, to prevent Section 27.
- Penalty: Life imprisonment.
- This shall be imposed upon any public officer or
employee who misappropriates, misapplies or fails to - Judge D: It is easy to raise this as a defense but this is
account for confiscated, seized or surrendered hard to prove because of the presumption of
dangerous drugs. regularity. As between the word of the police officer
and the word of the accused, the judge is most likely
- Penalty: Life imprisonment to death and a fine to believe the police officer. But of course the court
ranging from 500K to 10M in addition to absolute has to be vigilant.
perpetual disqualification from any public office.
Section 37. Workplace Drugfree
Any ELECTIVE LOCAL OR NATIONAL OFFICIAL found
Section 51. LGU
- Should also help in the fight
a. TO HAVE BENEFITED FROM THE PROCEEDS of
the trafficking of dangerous drugs as prescribed in Section 52. Abatement of Drug Related Public Nuisances -
this Act, or Any place or premises which have been used on two or more
occasions as the site of the unlawful sale or delivery of
b. HAVE RECEIVED ANY FINANCIAL OR dangerous drugs may be declared to be a public nuisance,
MATERIAL CONTRIBUTIONS or donations from and such nuisance may be abated
- Changi
natural or juridical persons found guilty of trafficking
- There may be a board created to conduct hearing
dangerous drugs as prescribed in this Act on complaints regarding nuisances.
- After hearing in which the Board may consider any
SHALL BE REMOVED FROM OFFICE and perpetually evidence, including evidence of the general
disqualified from holding any elective or appointive positions reputation of the place or premises, and at which
in the government, its divisions, subdivisions, and the owner of the premises shall have an
intermediaries, including government-owned or –controlled opportunity to present evidence in his/her defense,
corporations. the Board may declare the place or premises to be a
public nuisance.
―Narco politics‖ – Where those people who are engaged - Once declared as a public nuisance, it can be
in illegal drug trade are giving financial contributions to summarily abated
politicians, specially during elections, and in return they
expect protection. Section 54. Voluntary Drug Rehabilitation
- An addict is not the same as an ordinary sick
Section 28. Criminal Liability of Government Officials and person
Employees. - Before a drug dependent can be admitted to a
center there must be a court order
- There must be a petition filed in court, and only
The maximum penalties of the unlawful acts
when the court is convinced that the petitioner is a
provided for in this Act shall be imposed, in addition drug dependent that it will issue an order
to absolute perpetual disqualification from any public admitting the petitioner in a rehabilitation center
- Not really voluntary
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- Once there is attempt to kill his parents there will - The minor instead of serving sentence shall instead
be an case, sometimes the case will be dismissed be placed in a rehabilitation center
but with the condition to subject to rehabilitation - If the minor is rehabilitated, the case shall be
- The person by himself or through his dismissed
parents/spouse, may apply to the board for the - Suspension is automatic, no application needed
rehabilitation of the drug dependent. Thereafter the - The last paragraph has been repealed RA 9344
board shall file the appropriate petition in court. - The last paragraph talks about minors who are
- During the hearing the petition should present a under 15.
DOH accredited physical to testify that the - RA 9344 over section 66
petitioner is a drug dependent
- If found to be a dependent, he shall undergo at Section 67. . Discharge After Compliance with Conditions of
least 6 months of rehabilitation, but not more than Suspended Sentence of a First-Time Minor Offender.
1 year in a DOH accredited center designated by
the board. - Suspension of sentence only availed only once
- May not be confined but there has to be a program, - Not more than 18 but relate it to RA 9344
if under 18 and a 1st time offender o It is available to 21 years below
- Once the court will approve the petition it means
that there is a violation of section 15. Section 69. Promulgation of Sentence for First-Time Minor
o If rehabilitated, will not be punished Offender.
o If not, he will be punished under Section
15 - If not corrected, the offender shall be required to
o After second commitment - prosecution serve his sentence
under section 15
Section 70. Probation or Community Service for a First-Time
Minor Offender in Lieu of Imprisonment.
Section 58. Filing of Charges Against a Drug Dependent Who
is Not Rehabilitated Under the Voluntary Submission - If there is no suspended sentence, can avail of
Program. – shall be charged for violation of Section 15 of probation
this Act and prosecuted like any other offender. If convicted, o Even if the penalty is higher than 6 years
he/she shall be credited for the period of confinement and - Violation must not be for selling
rehabilitation in the Center in the service of his/her sentence. o People vs. Padua July 13, 2008
- Section 24 prevails over section 70
Section 60
- The Records are a drug related case is confidential Section 73.
- Liability of the parents or spouse who refuses to
Section 61. Compulsory Confinement in a Drug cooperate with the board in treatment and
Rehabilitation Center rehabilitation of a person who is a minor
- There should be at least 2 doctors accredited by the
board declaring the person to be a drug dependent Section 77. The Dangerous Drugs Board
o If one states he is not a drug dependent, - Creation of Dangerous Drugs Board and PDEA
the court will have to decide whether or - DDB - policy making body under the office of the
not to approve the petition president
- PDEA - the implementing arm
- If no court order then the confinement will be
illegal detention Section 82. PDEA
- PDEA is the implementing arm of the board
Section 62. Compulsory Submission of a Drug Dependent - Headed by director general who shall have the
Charged with an Offense to Treatment and Rehabilitation. rank of an under secretary
- Offense charged is 6 years or less and found to be
drug dependent Section 86. Transfer, Absorption, and Integration of All
- The proceedings shall be suspended and the Operating Units on Illegal Drugs into the PDEA and
accused to be treated in a drug rehabilitation center Transitory Provisions.
- Period in the center shall be deducted from the
crime charged - Last paragraph
- Same as preventive suspension - PDEA shall be the lead agency
- NBI, PNP should transfer to the PDEA
Section 66. Suspended Sentence - Law enforcement agencies should coordinate
with PDEA in their operations in drug related thousand pesos (P50,000.00) and in
activities addition, perpetual absolute
- But failure to cooperate with PDEA will not disqualification from public office, should
invalidate the operation
he/she fail to notify the court of such
o People vs. Sta. Maria Feb. 23, 2007
o People vs. Balacute 206366 August 13 2014 order to transfer or re-assign.
Coordination with the PDEA is not
an indispensable element of a
proper buy-bust operation Section 92. Delay and Bungling in the Prosecution of Drug
Cases.
Section 91. Responsibility and Liability of Law Enforcement - Any government officer or employee tasked
Agencies and other Government Officials and Employees in with the prosecution of drug-related cases
Testifying as Prosecution Witnesses in Dangerous Drugs under this act, who, through patent laxity,
Cases. inexcusable neglect, unreasonable delay or
- It is a criminal act if a member of the law deliberately causes the unsuccessful
enforcement agency or any other government prosecution and/or dismissal of the said drug
official or employee after due notice, fails or
cases, shall suffer the penalty of imprisonment
refuses intentionally or negligently, to appear as
ranging from twelve (12) years and one (1) day
a witness for the prosecution in any proceedings,
involving violations of this Act, without any to twenty (20) years without prejudice to his/her
valid reason prosecution under the pertinent provisions of
- Penalty is 12 years and 1 day to 20 years and a the Revised Penal Code.
fine not less than 500,000
- The immediate superior of the member of the law Sec. 93. Reclassification, Addition or Removal of Any Drug
enforcement agency or any other government from the List of Dangerous Drugs
employee mentioned in the preceding paragraph
Sec. 98.Limited Applicability of the Revised Penal Code
shall be penalized with imprisonment of not less
than two (2) months and one (1) day but not - General rule: Notwithstanding any law, rule or
more than six (6) years and a fine of not less than regulation to the contrary, the provisions of the
Ten thousand pesos (P10,000.00) but not more Revised Penal Code (Act No. 3814), as amended,
than Fifty thousand pesos (P50,000.00) and in shall not apply to the provisions of this Act.
- Exception: In the case of minor offenders. Where
addition, perpetual absolute disqualification
the offender is a minor, the penalty for acts
from public office if despite due notice to them punishable by life imprisonment to death
and to the witness concerned, the former does provided herein shall be reclusion perpetua to
not exert reasonable effort to present the latter to death.
the court.
o Command responsibility Important rulings from jurisprudence:
- The member of the law enforcement agency or
-there is no requirement that the police must apply
any other government employee may be fluorescent powder to the buy-bust money to prove the
transferred or re-assigned for compelling reasons commission of the offense or taking of the fingerprints from
such as a form of disciplinary action or the money or shabu; PP vsSy 503 SCRA 772
promotion.
o Provided, That his/her immediate -Is the forensic chemist required to examine the entire mass
of the confiscated dangerous drugs? No. It is enough that the
superior shall notify the court where the
sample of the said substance besubjectto qualitative
case is pending of the order to transfer or
examination.
re-assign, within twenty-four (24) hours
from its approval; Provided, further, That -in prosecution for violation of RA 9165, the prosecution
his/her immediate superior shall be need not prove the negative allegation (now take note that as
penalized with imprisonment of not less a requisite, the accused is not authorized by law to possess
the same), this is what we call the negative element of the
than two (2) months and one (1) day but
crime. According to SC, the prosecution is not required to
not more than six (6) years and a fine of prove a certification from BFAD that the accused is really not
not less than Ten thousand pesos authorized; simply put, prosecution need not prove the
(P10,000.00) but not more than Fifty negative element of the crime. It is incumbent however by
(a) Accessories refer to parts of a firearm which may enhance machine guns not exceeding caliber 7.62MM which have fully
or increase the operational efficiency or accuracy of a firearm automatic mode; and
but will not constitute any of the major or minor internal parts Class-B Light weapons which refer to weapons designed for
thereof such as, hut not limited to, laser scope, telescopic sight use by two (2) or more persons serving as a crew, or rifles and
and sound suppressor or silencer. machine guns exceeding caliber 7.62MM such as heavy
machine guns, handheld underbarrel and mounted grenade
(b) Ammunition refers to a complete unfixed unit consisting of launchers, portable anti-aircraft guns, portable anti-tank guns,
a bullet, gunpowder, cartridge case and primer or loaded shell recoilless rifles, portable launchers of anti-tank missile and
for use in any firearm. Definition of terms rocket systems, portable launchers of anti-aircraft missile
systems, and mortars of a caliber of less than 100MM.
(k) Duty detail order refers to a document issued by the
juridical entity or employer wherein the details of the (u) Long certificate of registration refers to licenses issued to
disposition of firearm is spelled-out, thus indicating the name government agencies or offices or government-owned or -
of the employee, the firearm information, the specific duration controlled corporations for firearms to be used by their officials
and location of posting or assignment and the authorized and employees who are qualified to possess firearms as
bonded firearm custodian for the juridical entity to whom such provider in this Act, excluding security guards.
firearm is turned over after the lapse of the order. given to the LGUs, GOCCs. Their personnel have
Our security guards don't have firearms license but this so called short certificate of registration. Police
they only have duty detail order. What would be and military are given mission order and
stated here? Name of employee, information related memorandum receipt. If you receive property from
to the firearm to be carried, specific duration and the government, you are given a memorandum
location of posting or assignment receipt to show you have in your possession such
property.
(l) Firearm refers to any handheld or portable weapon,
whether a small arm or light weapon, that expels or is (v) Loose firearm refers to an unregistered firearm, an
designed to expel a bullet, shot, slug, missile or any projectile, obliterated or altered firearm, firearm which has been lost or
which is discharged by means of expansive force of gases from stolen, illegally manufactured firearms, registered firearms in
burning gunpowder or other form of combustion or any the possession of an individual other than the licensee and
similar instrument or implement. For purposes of this Act, the those with revoked licenses in accordance with the rules and
barrel, frame or receiver is considered a firearm. regulations.
Take note: the Barrel, frame or handle, and receiver is (y) Permit to carry firearm outside of residence refers to a
considered a firearm. So you can be convicted if what you will written authority issued to a licensed citizen by the Chief of the
bring is not a complete gun. Penalty: same as provided by this PNP which entitles such person to carry his/her registered or
act. Explosives are not firearms. This can be found in Sec 3 in lawfully issued firearm outside of the residence for the
PD 1866. duration and purpose specified in the authority.
(Under the old law: the 2 kinds are high powered or low
powered) (z) Permit to transport firearm refers to a written authority
issued to a licensed citizen or entity by the Chief of the PNP or
(q) Imitation firearm refers to a replica of a firearm, or other by a PNP Regional Director which entitles such person or
device that is so substantially similar in coloration and overall entity to transport a particular firearm from and to a specific
appearance to an existing firearm as to lead a reasonable location within the duration and purpose in the authority.
person to believe that such imitation firearm is a real firearm.
If you want to carry a firearm, you need two permits:
(t) Light weapons are: 1. License to own and possess firearm (LTOP)-
Class-A Light weapons which refer to self-loading pistols, o if you are granted, you cannot carry it
rifles and carbines, submachine guns, assault rifles and light outside your residence unless you have a
permit to carry even if you just put it in your adverse conditions such as light rain, light snow, and dry
car. It should remain in the residence. smoke or in conjunction with other optical and red dot sights.
o if you still bring without a permit to carry,
you violate this law although the penalty is ARTICLE II
lesser
o expires in 2 years while the registration of OWNERSHIP AND POSSESSION OF FIREARMS
the firearm expires in 4 years
2. Permit to carry SEC. 4.Standards and Requisites for Issuance of and Obtaining
a License to Own and Possess Firearms.
(aa) Residence refers to the place or places of abode of the 1. applicant must be a Filipino citizen,
licensed citizen as indicated in his/her license. 2. at least twenty-one (21) years old and
is where one keeps his firearm. Anybody in the 3. has gainful work, occupation or business or has filed
family can use it even if without license if you are an Income Tax Return (ITR) for the preceding year as
attacked proof of income, profession, business or occupation.
(cc) Short certificate of registration refers to a certificate issued In addition, the applicant shall submit the following
by the FEO of the PNP for a government official or employee certification issued by appropriate authorities attesting the
who was issued by his/her employer department, agency or following:
government-owned or -controlled corporation a firearm a. The applicant has not been convicted of any
covered by the long certificate of registration. crime involving moral turpitude:
b. The applicant has passed the psychiatric test
(dd) Small arms refer to firearms intended to be or primarily administered by a PNP-accredited
designed for individual use or that which is generally psychologist or psychiatrist;
considered to mean a weapon intended to be fired from the c. The applicant has passed the drug test
hand or shoulder, which are not capable of fully automatic conducted by an accredited and authorized
bursts of discharge, such as: drug testing laboratory or clinic;
d. The applicant has passed a gun safety
(1) Handgun which is a firearm intended to be fired from seminar which is administered by the PNP
the hand, which includes: or a registered and authorized gun club;
e. The applicant has filed in writing the
(i) A pistol which is a hand-operated firearm having a application to possess a registered firearm
chamber integral with or permanently aligned with the which shall state the personal circumstances
bore which may be self-loading; and of the applicant;
(ii) Revolver which is a hand-operated firearm with a f. The applicant must present a police
revolving cylinder containing chambers for individual clearance from the city or municipality
cartridges. police office; and
g. The applicant has not been convicted or is
(2) Rifle which is a shoulder firearm or designed to be currently an accused in a pending criminal
fired from the shoulder that can discharge a bullet case before any court of law for a crime that
through a rifled barrel by different actions of loading, is punishable with a penalty of more than
which may be classified as lever, bolt, or self-loading; and two (2) years.
(3) Shotgun which is a weapon designed, made and For purposes of this Act, an acquittal or permanent dismissal
intended to fire a number of ball shots or a single of a criminal case before the courts of law shall qualify the
projectile through a smooth bore by the action or energy accused thereof to qualify and acquire a license.
from burning gunpowder.
The applicant shall pay the reasonable licensing fees as may be
so a civilian cannot own an armalite, only those provided in the implementing rules and regulations of this
firearms which are not capable of fully automatic Act.
bursts
Ex: handgun (pistols, revolvers, calibre .45), rifle, shot gun An applicant who intends to possess a firearm owned by a
juridical entity shall submit his/her duty detail order to the
(gg) Thermal weapon sight refers to a battery operated, FEO of the PNP.
uncooled thermal imaging device which amplifies available
thermal signatures so that the viewed scene becomes clear to SEC. 5.Ownership of Firearms and Ammunition by a Juridical
the operator which is used to locate and engage targets during Entity. – A juridical person maintaining its own security force
daylight and from low light to total darkness and operates in
may be issued a regular license to own and possess firearms (b) Certified Public Accountants;
and ammunition under the following conditions: (c) Accredited Media Practitioners;
(d) Cashiers, Bank Tellers;
(a) It must be Filipino-owned and duly registered with the (e) Priests, Ministers, Rabbi, Imams;
Securities and Exchange Commission (SEC); (f) Physicians and Nurses;
(g) Engineers; and
(b) It is current, operational and a continuing concern; (h) Businessmen, who by the nature of their business or
undertaking, are exposed to high risk of being targets of
(c) It has completed and submitted all its reportorial criminal elements
requirements to the SEC; and
SEC. 8.Authority to Issue License. – The Chief of the PNP,
(d) It has paid all its income taxes for the year, as duly certified through the FEO of the PNP, shall issue licenses to qualified
by the Bureau of Internal Revenue. individuals and to cause the registration of firearms.
The application shall be made in the name of the juridical SEC. 9. Licenses Issued to Individuals. – Subject to the
person represented by its President or any of its officers requirements set forth in this Act and payment of required fees
mentioned below as duly authorized in a board resolution to to be determined by the Chief of the PNP, a qualified
that effect: Provided, That the officer applying for the juridical individual may be issued the appropriate license under the
entity, shall possess all the qualifications required of a citizen following categories;
applying for a license to possess firearms.
o Type 1 license – allows a citizen to own and possess a
Other corporate officers eligible to represent the juridical maximum of two (2) registered firearms;
person are: the vice president, treasurer, and board secretary. o Type 2 license – allows a citizen to own and possess a
maximum of five (5) registered firearms;
Security agencies and LGUs shall be included in this category o Type 3 license – allows a citizen to own and possess a
of licensed holders but shall be subject to additional maximum of ten (10) registered firearms;
requirements as may be required by the Chief of the PNP. o Type 4 license – allows a citizen to own and possess a
maximum of fifteen (15) registered firearms; and
SEC. 6.Ownership of Firearms by the National Government. – o Type 5 license – allows a citizen, who is a certified
All firearms owned by the National Government shall be gun collector, to own and possess more than fifteen
registered with the FEO of the PNP in the name of the (15) registered firearms.
Republic of the Philippines. Such registration shall be exempt
from all duties and taxes that may otherwise be levied on other For Types 1 to 5 licenses, a vault or a container secured by lock
authorized owners of firearms. For reason of national security, and key or other security measures for the safekeeping of
firearms of the Armed Forces of the Philippines (AFP), Coast firearms shall be required.
Guard and other law enforcement agencies shall only be
reported to the FEO of the PNP. For Types 3 to 5 licenses, the citizen must comply with the
inspection and bond requirements.
SEC. 7.Carrying of Firearms Outside of Residence or Place of
Business. – A permit to carry firearms outside of residence Firearms That May Be Registered (Section 10)
shall be issued by the Chief of the PNP or his/her duly
authorized representative to any qualified person whose life is Only small arms may be registered by licensed
under actual threat or his/her life is in imminent danger due to citizens or licensed juridical entities for ownership,
the nature of his/her profession, occupation or business. possession and concealed carry.
If you want to have a firearm, secure license to own
and possess firearm, and a permit to carry firearm A light weapon shall be lawfully acquired or
outside residence (PTCFOR) possessed exclusively by the AFP, the PNP and
other law enforcement agencies authorized by the
It shall be the burden of the applicant to prove that his/her life President in the performance of their duties.
is under actual threat by submitting a threat assessment Provided, That private individuals who already
certificate from the PNP. have licenses to possess Class-A light weapons
upon the effectivity of this Act shall not be
For purposes of this Act, the following professionals are deprived of the privilege to continue possessing
considered to be in imminent danger due to the nature of their the same and renewing the licenses therefor, for
profession, occupation or business: TAKE NOTE! the sole reason that these firearms are Class "A"
light weapons, and shall be required to comply
(a) Members of the Philippine Bar; with other applicable provisions of this Act.
– Because before, civilians can own light The failure to deliver the firearm or ammunition
weapons. But now, only small arms may within six (6) months after the death or legal
be registered disability of the licensee shall render the possessor
License to Possess Ammunition Necessarily Included (Section liable for illegal possession of the firearm.
12)
IMPORTANT PROVISIONS!
Death or Disability of Licensee (Section 26) (a) Loaded with ammunition or inserted with a loaded
magazine
Upon the death or legal disability of the holder of a
– If you have ammunition, together with your
firearm license, it shall be the duty of his/her next
unlicensed firearm, the possession of
of kin, nearest relative, legal representative, or
ammunition is absorbed in the crime of
other person who shall knowingly come into
possession of unlicensed firearm
possession of such firearm or ammunition, to
deliver the same to the FEO of the PNP or Police – If what you possess is only ammunition, you
Regional Office can be charged with possession of ammunition
Such firearm or ammunition shall be retained by – If the ammunition is loaded to your firearm,
the police custodian pending the issuance of a that is considered aggravating
license and its registration in accordance, with this
Act.
(b) Fitted or mounted with laser or any gadget used to MOST IMPORTANT PROVISION!!!
guide the shooter to hit the target such as thermal
weapon sight (TWS) and the like SEC. 29.Use of Loose Firearm in the Commission of a Crime.
(c) Fitted or mounted with sniper scopes, firearm – The use of a loose firearm, when inherent in the commission
muffler or firearm silencer of a crime punishable under the Revised Penal Code or other
special laws, shall be considered as an aggravating
(d) Accompanied with an extra barrel; and
circumstance:
(e) Converted to be capable of firing full automatic
bursts When at the time of the arrest, the firearm is used in
(f) The penalty of prision mayor in its minimum period the commission of the crime such as homicide,
shall be imposed upon murder; the possession of the unlicensed firearm is
considered aggravating and not a separate offense.
– any person who shall unlawfully acquire or
possess a major part of a small arm Example: Homicide, the use of unlicensed firearm is
aggravating.
(g) The penalty of prision mayor in its minimum period
Suppose the crime committed using the unlicensed
shall be imposed upon
firearm has a lower penalty, example, grave threats.
– any person who shall unlawfully acquire or What is the penalty? The penalty for illegal
possess ammunition for a small arm or Class-A possession of firearm shall be imposed in lieu of the
light weapon
penalty for the crime charged.
– If the violation of this paragraph is committed ―Provided, that if the crime committed with the
by the same person charged with the unlawful use of a loose firearm is penalized by the law
acquisition or possession of a small arm, the with a maximum penalty which is lower than
former violation shall be absorbed by the latter
that prescribed in the preceding section for illegal
TAKE NOTE: if it is inserted it is Aggravating. possession of firearm, the penalty for illegal
possession of firearm shall be imposed in lieu of
(h) The penalty of prision mayor in its medium period shall the penalty for the crime charged.‖
be imposed upon any person who shall unlawfully acquire TAKE NOTE with this because this may affect
or possess a major part of a Class-A light weapon. jurisdiction.
o Alarms and scandal per se, which is
Take note of Letter G and I.
punishable by arestomenor and a fine of 200,
In letter G it states, ammunition for a small
the jurisdiction belongs to the first level
arm or Class-A. Actually that Class-A is in
courts. With this new law, it could be that
letter I. So, the penalty of prision mayor in its
the crime committed with the use of
medium period shall be imposed upon any
unlicensed firearm is now cognizable of the
person who shall unlawfully acquire or
RTC because the jurisdiction of the courts in
possess ammunition for Class-A light
criminal cases depends on the penalty
weapon.
imposable.
If the same person is charged with violation of
o 6 years and below, as a rule, first level
possession of Class A light weapon, a possession of courts. Over 6 years, RTC.
ammunition is absorbed.
- What about if the penalty for the crime committed
(j) The penalty of prision mayor in its maximum period shall
and the penalty for the possession of the unlicensed
be imposed upon any person who shall unlawfully acquire
firearm are equal?
or possess a major part of a Class-B light weapon; and
You have to suffer 2 penalties.
(k) The penalty of prision mayor in its maximum period shall ―Provided, further, That if the crime committed
be imposed upon any person who shall unlawfully acquire with the use of a loose firearm is penalized by
or possess ammunition for a Class-B light weapon. If the the law with a maximum penalty which is equal
violation of this paragraph is committed by the same person to that imposed under the preceding section for
charged with the unlawful acquisition or possession of a illegal possession of firearms, the penalty of
Class-B light weapon, the former violation shall be absorbed prision mayor in its minimum period shall be
by the latter. imposed in addition to the penalty for the crime
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
punishable under the Revised Penal Code or unlicensed firearms. What crime or crimes are
other special laws of which he/she is found committed by the accused?
guilty‖ o Violation of Sec. 11 as regards
So, it is as if you are convicted with 2 crimes. possession of dangerous drugs and
violation of the possession of unlicensed
- ―If the violation of this Act is in furtherance of, or firearm.
incident to, or in connection with the crime of
rebellion of insurrection, or attempted coup d’ etat, SEC. 30.Liability of Juridical Person. – The penalty of prision
such violation shall be absorbed as an element of the mayor in its minimum to prision mayor in its medium period
crime of rebellion or insurrection, or attempted coup shall be imposed upon the owner, president, manager, director
d’ etat.‖ or other responsible officer of/any public or private firm,
So, absorbed. company, corporation or entity who shall willfully or
Remember that in rebellion, common crimes are knowingly allow any of the firearms owned by such firm,
absorbed: murder, homicide, robbery, as long as company, corporation or entity to be used by any person or
they are committed in furtherance of rebellion, persons found guilty of violating the provisions of the
not for personal end. This is what we call the preceding section, or willfully or knowingly allow any of them
POLITICAL DOCTRINE. to use unregistered firearm or firearms without any legal
If a person is killed, and it is in furtherance of authority to be carried outside of their residence in the course
rebellion, the killing is not murder or homicide of their employment.
but rebellion. But according to SC, if the accused
SEC. 31.Absence of Permit to Carry Outside of Residence. –
is charged by the prosecution with murder, that
The penalty of prisioncorreccional and a fine of Ten thousand
is within the powers of the prosecution to charge
pesos (P10,000.00) shall be imposed upon any person who is
the accused with such crime.
licensed to own a firearm but who shall carry the registered
The fiscal, they have the right, the duty to impose
firearm outside his/her residence without any legal authority
the appropriate crime. Once the case is filed in
therefor.
court, the accused can raise that so called political
doctrine. He can question the charge in court by - If you want to carry your unlicensed firearm outside
raising the defense of political doctrine. Once the your residence, you have to have a Permit to Carry
accused will raise that defense, the court should Firearm Outside Residence.
conduct a hearing to determine whether the - The penalty if you carry your firearm without permit
killing is indeed committed in furtherance of to carry is prisioncorreccional and a fine of Ten
rebellion. In other words, the court will not thousand pesos (P10,000.00), MTC jurisdiction.
immediately dismiss the case, the court will - If you commit a crime using that firearm, the same
determine first whether the killing is really penalty. That would be considered aggravating. Even
connected with rebellion. (SaturOcampo Case). if you have licence, that is still considered unlicensed
because you do not have the permit to carry.
- Sedition is not included. Take note, it is attempted
coup ‗detat. SEC. 32. Unlawful Manufacture, Importation, Sale or
Disposition of Firearms or Ammunition or Parts Thereof,
- TAKE NOTE: when aggravating, when absorbed Machinery, Tool or Instrument Used or Intended to be Used
and when the possession of unlicensed firearm is in the Manufacture of Firearms, Ammunition or Parts
considered a separate crime. Thereof. – The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall
- ―If the crime is committed by the person without unlawfully engage in the manufacture, importation, sale or
using the loose firearm, the violation of this Act shall disposition of a firearm or ammunition, or a major part of a
be considered as a distinct and separate offense.‖ firearm or ammunition, or machinery, tool or instrument used
Example: The accused is found in possession of or intended to be used by the same person in the manufacture
drugs. He was subjected with a search warrant of a firearm, ammunition, or a major part thereof.
and when his house was searched drugs were
confiscated. In plain view, the police found - Sale – gun runner
- Reclusion temporal to reclusion perpetua
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
The possession of any machinery, tool or instrument used - No bond is necessary for the release
directly in the manufacture of firearms, ammunition, or - If the case involved PD 1866, the firearm should be
major parts thereof by any person whose business, deposited to the court
employment or activity does not lawfully deal with the
SEC. 37. Confiscation and Forfeiture. – The imposition of
possession of such article, shall be prima facie evidence that
penalty for any violation of this Act shall carry with it the
such article is intended to be used in the unlawful or illegal accessory penalty of confiscation and forfeiture of the
manufacture of firearms, ammunition or parts thereof. firearm, ammunition, or parts thereof, machinery, tool or
instrument in favor of the government which shall be
PD 1866 as Amended by 10591 disposed of in accordance with law.
- The firearm shall be confiscated in favor of the
SEC. 33. Arms Smuggling. – The penalty of reclusion government and disposed of in accordance with law
perpetua shall be imposed upon any person who shall - Turn over to the FEO
engage or participate in arms smuggling as defined in this
Act. SEC. 38. Liability for Planting Evidence. –imposed upon any
- Bringing through a Balik Bayan Box person who shall willfully and maliciously insert; place,
and/or attach, directly or indirectly, through any overt or
SEC. 34. Tampering, Obliteration or Alteration of Firearms covert act, any firearm, or ammunition, or parts thereof in the
Identification. person, house, effects, or in the immediate vicinity of an
- imposed upon any person who shall tamper, obliterate innocent individual for the purpose of implicating or
or alter without authority the barrel, slide, frame, incriminating the person, or imputing the commission of any
receiver, cylinder, or bolt assembly, including the violation of the provisions of this Act to said individual. If
name of the maker, model, or serial number of any the person found guilty under this paragraph is a public
firearm, or who shall replace without authority the officer or employee, such person shall suffer the penalty of
barrel, slide, frame, receiver, cylinder, or bolt reclusion perpetua.
assembly, including its individual or peculiar - Penalty of "laglag bala" PM
identifying characteristics essential in forensic - If he is a public officer then RP (aggravating)
examination of a firearm or light weapon. - Without prejudice to any other criminal liability
including robbery
o There is threat or intimidation, through
SEC. 35. Use of an Imitation Firearm. – An imitation firearm threat of filing a case. It is not bribery
used in the commission of a crime shall be considered a real - If drugs then under RA 9165 - life sentence
firearm as defined in this Act and the person who committed
the crime shall be punished in accordance with this Act: SEC. 39. Grounds for Revocation, Cancellation or Suspension
Provided, That injuries caused on the occasion of the conduct of License or Permit. – The Chief of the PNP or his/her
of competitions, sports, games, or any recreation activities authorized representative may revoke, cancel or suspend a
involving imitation firearms shall not be punishable under this license or permit on the following grounds:
Act. a) Commission of a crime or offense involving the
- Suppose the imitation firearm is used in the commission firearm, ammunition, of major parts thereof;
of a crime, considered as a real fire arm b) Conviction of a crime involving moral turpitude or
- Mere possession may not be considered as a crime, but any offense where the penalty carries an
if used in the commission then it will be considered as imprisonment of more than six (6) years;
a real firearm c) Loss of the firearm, ammunition, or any parts thereof
through negligence;
SEC. 36. In Custodia Legis. – During the pendency of any d) Carrying of the firearm, ammunition, or major parts
case filed in violation of this Act, seized firearm, thereof outside of residence or workplace without,
ammunition, or parts thereof, machinery, tools or the proper permit to carry the same;
instruments shall remain in the custody of the court. If the - Aside from possible criminal liability, the license may
court decides that it has no adequate means to safely keep also be removed
the same, the court shall issue an order to turn over to the e) Carrying of the firearm, ammunition, or major parts
PNP Crime Laboratory such firearm, ammunition, or parts thereof in prohibited places;
thereof, machinery, tools or instruments in its custody during f) Dismissal for cause from the service in case of
the pendency of the case and to produce the same to the court government official and employee;
when so ordered. No bond shall be admitted for the release g) Commission of any of the acts penalized under
of the firearm, ammunition or parts thereof, machinery, tool Republic Act No. 9165, otherwise known as the
or instrument. ―Comprehensive Dangerous Drugs Act of 2002″;
- Under the custody of the court during the pendency of - if you have many difference licensed guns but you are a
the case drug lord, that is ground for revocation.
h) Submission of falsified documents or
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misrepresentation in the application to obtain a 2. The fact that the accused possessing the firearm
license or permit; does not have the corresponding license
i) Noncompliance of reportorial requirements; and - In RA 9165 - negative element of the crime not required
j) By virtue of a court order. to be proved
- In PD 1866 - the other way around, the prosecution
must be able to present a certification from the FEO
SEC. 40. Failure to Notify Lost or Stolen Firearm or Light that the accused is indeed not licensed to own or
Weapon. possess a firearm
- Fine P10,000 for failure to report for loss of firearm - Failure on the part of the prosecution to present the
within 30 days from date of discovery certification is fatal
- Fine 5000 for not notifying change in residence within - The prosecution however is not required to present the
30 days from transfer signatory, the certification is a public document and is
in itself self-authenticating
SEC. 41. Illegal Transfer/Registration of Firearms. – It shall - It is enough to present and mark the certificate as
be unlawful to transfer possession of any firearm to any evidence
person who has not yet obtained or secured the necessary
license or permit thereof. 3. The accused is fully and consciously aware of being
Any public officer or employee or any person who shall in possession of an unlicensed firearm
facilitate the registration of a firearm through fraud, deceit, - Animus possidendi
misrepresentation or submission of falsified documents shall - If you are cleaning your house and then when you are
suffer the penalty of prision correccional.
sweeping the garbage, there is a gun or ammunition,
- A license firearm can be sold, even in the newspaper.
knowing that it is prohibited; you bring it to the
But to sell it the buyer must be a license holder to own
police station. On your way there is a check point.
and posses a firearm
o You are not liable because of the lack of the
- If you sell to a person without a license then the buyer 3rd element. No animus possidendi
may be charged under this law. The license is not
transferrable.
To convict an accused, the prosecution must clearly establish
- The penalty of prision correccional shall be imposed
the existence of the firearm. To establish the existence:
upon any person who shall violate the provision of
1. Presenting the firearm in court
the preceding paragraph. In addition, he/she shall be
- Just like presenting dangerous drugs, because it is the
disqualified to apply for a license to possess other
corpus delicti of the crime
firearms and all his/her existing firearms licenses
- There was a case where the presentation was not made;
whether for purposes of commerce or possession,
the prosecution only presented testimonial evidence.
shall be revoked. If government-issued firearms,
SC accepted the testimony:
ammunition or major parts of firearms or light
o Testimony of a witness who saw the accused in
weapons are unlawfully disposed, sold or transferred
possession of the firearm is sufficient Pp. vs.
by any law enforcement agent or public officer to Del Rosario G.R. No. 142296 May. 21, 2001
private individuals, the penalty of reclusion temporal o People vs. Narvasa G.R. No. 128618 Nov. 16, 1998
shall be imposed. o Pp. vs Baleroso G.R. No. 164815 Feb. 22, 2008
- If the firearm sold is government issued, then the
penalty to private individuals will be RT but without People vs. Lion G.R. No. 115988 March 29, 1996
prejudice to other criminal liabilities No animus possidendi if the possession or control is merely:
1. Temporary
If you are a civilian asset of the military and then you are 2. Incidental
issued with a mission order, is it valid? 3. Casual
- It is not valid, it will not replace the regular firearms
license Altellero vs. Casimero April 25, 2012
- People vs. Sayco March 3, 2008 - The police received a report that there are persons
o The mission order was ordered to him could armed in a place. When reaching the place the police
not replace the regular license saw the baranggay captain who was walking wobbly
o Look at the answer of good faith and used an armalite as a cane. The baranggay
captain was apprehended and required documents
People vs. Evangelista G.R. No. 163267 May 5, 2010 for the firearm, the baranggay captain was only able
Elements of Possession of Unlicensed Firearm to present license to own and possess, no PTC. He
1. Existence of the Subject firearm was charged,
- The firearm must be presented and proved in court by - Under section 389 - b of the local government code, A
presenting it in court baranggay captain is authorized to possess and carry
firearm within his territorial jurisdiction. While
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within the territory of his baranggay, he need not "Provided, Further, That the temporary, incidental, casual,
secure a permit to carry outside his residence. As long harmless, or transient possession or control of any explosive
as he is within his jurisdiction (baranggay) or incendiary device for the sole purpose of surrendering it to
the proper authorities shall not be a violation of this Section.‖
PD 1866 likewise penalize possession, manufacturing, etc
explosives. It was not completely repealed by RA 10591 SEC 3-A. Unlawful Manufacture, Sales, Acquisition,
because it pertains only to possession of firearms. Disposition, Importation or Possession of a Part, Ingredient,
Machinery, Tool or Instrument Used or Intended to be Used
Section 3. Unlawful Manufacture, Sales, Acquisition, for the Manufacture, Construction, Assembly, Delivery or
Disposition, Importation or Possession of an Explosive or
Detonation. - The penalty of reclusion perpetua shall be
Incendiary Device - The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully
imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or
manufacture, assemble, deal in, acquire, dispose, import or
possess any part, ingredient, machinery, tool or instrument of
possess any explosive.
any explosive or incendiary device, whether chemical,
mechanical, electronic, electrical or otherwise, used or
- If you possess hand grenade (in your home), you will
intended to be used by that person for its manufacture,
be penalized with reclusion perpetua.
construction, assembly, delivery or detonation, where the
―or incendiary device, with knowledge of its existence and its explosive or incendiary device is capable or is intended to be
explosive or incendiary character‖ made capable of producing destructive effect on contiguous
objects or causing injury or death to any person.
- Meaning, there is animus possidendi
- This if it for unlawful manufacture or sale.
―where the explosive or incendiary device is capable of - If you only possess, it is under Section 3. Penalty is
producing destructive effect on contiguous objects or causing reclusion perpetua.
injury or death to any person, including but not limited to,
hand grenade(s), rifle grenade(s), 'pillbox bomb', 'molotov "Provided, That the mere possession of any part, ingredient,
cocktail bomb', 'fire bomb', and other similar explosive and machinery, tool or instrument directly used in the
incendiary devices.‖ manufacture, construction, assembly, delivery or detonation of
any explosive or incendiary device, by any person whose
- Is firecracker included as explosive? NO if it is not business activity, or employment does not lawfully deal with
capable of producing destructive effect on contiguous the possession of such article shall be prima facie evidence
objects or causing injury or death to any person. that such article is intended to be used by that person in the
unlawful/illegal manufacture, construction, assembly, delivery
"Provided, That mere possession of any explosive or or detonation of an explosive or incendiary device.‖
incendiary device shall be prima facie evidence that the person
had knowledge of the existence and the explosive or incendiary "Provided, however, That a temporary incidental, casual,
character of the device.‖ harmless or transient possession or control of any part,
machinery, tool or instrument directly used in the
- Animus possidendi is presumed. manufacture, construction, assembly, delivery or detonation of
any explosive or incendiary device, without the knowledge of
"Provided, however, That a temporary, incidental, casual,
its existence or character as part, ingredient, machinery, tool
harmless, or transient possession or control of any explosive
or instrument directly used in the manufacture, construction,
or incendiary device, without the knowledge of its existence or
assembly, delivery or detonation of any explosive or
its explosive or incendiary character, shall not be a violation
incendiary device, shall not be a violation of this Section.‖
of this Section.‖
"Provided, Further, That the temporary, incidental, casual,
- If there is no animus possidendi, or if the possession
harmless, or transient possession or control of any part,
is merely temporary, incidental or casual, it is ingredient, machinery, tool or instrument directly used in the
harmless. manufacture, construction, assembly, delivery or detonation of
- If you found a bomb and carried it in the police any explosive or incendiary device for the sole purpose of
station and you were caught, you are not liable. surrendering it to the proper authorities shall not be a
violation of this Section.‖
"Provided, finally, That in addition to the instances provided jeopardy, if the application thereof is more favorable to the
in the two (2) immediately preceeding paragraphs, the court accused, the conviction or acquittal of the accused or the
may determine the absence of the intent to possess, otherwise dismissal of the case for violation of this Decree shall be a bar
referred to as 'animus possidendi', in accordance with the facts to another prosecution of the same accused for any offense
and circumstances of each case and the application of other where the violation of this Decree was a necessary means for
pertinent laws, among other things, Articles 11 and 12 of the committing the offense or in furtherance of which, incident to
Revised Penal Code, as amended." which, in connection with which, by reason of which, or on
occasion of which, the violation of this Decree was committed,
SEC. 3-B. Penalty for the Owner, President, Manager,
and vice versa.
Director or Other Responsible Officer of Any Public or
Private Firm, Company, Corporation or Entity. - The penalty SEC. 4.Responsibility and liability of Law Enforcement
of reclusion perpetua shall be imposed upon the owner, Agencies and Other Government Officials and Employees in
president, manager, director or other responsible officer of any Testifying as Prosecution Witnesses.
public or private firm, company, corporation or entity, who
shall willfully or knowingly allow any explosive or - This is about command responsibility. This is similar
incendiary device or parts thereof owned or controlled by such to the provision of RA 9165 pertaining to the
firm, company, corporation or entity to be used by any person witnesses who refuse to appear in court or wilfully
or persons found guilty of violating the provisions of the failed to appear in court.
preceding paragraphs.
―Any member of law enforcement agencies or any other
- This is the penalty for the owners and officers of the government official and employee who, after due notice, fails
corporation. or refuses, intentionally or negligently, to appear as a witness
- Who shall willfully or knowingly allow any explosive for the prosecution of the defense in any proceeding, involving
or incendiary device or parts thereof owned or violations of this Decree, without any valid reason, shall be
controlled by such firm, company, corporation or punished with reclusion temporal and a fine of Five hundred
entity to be used by any person or persons found Thousand pesos (P500,000.00) in addition to the administrative
guilty of violating the provisions of the preceding liability he/she may be meted out by his/her immediate
paragraphs. superior and/or appropriate body.‖
SEC. 3-C. Relationship of Other Crimes with a Violation of ―The immediate superior of the member of the law enforcement
this Decree and the Penalty Therefor. - When a violation of agency or any other government employee mentioned in the
Section 3, 3-A or 3-B of this Decree is a necessary means for preceding paragraph shall be penalized with
committing any of the crimes defined in the Revised Penal prisioncorreccional and a fine of not less than Ten Thousand
Code or special laws, or is in furtherance of, incident to, in pesos (P10,000.00) but not more than Fifty thousand pesos
connection with, by reason of, or on occassion of any of the (P50,000.00) and in addition, perpetual absolute
crimes defined in the Revised Penal Code or special laws, the disqualification from public officeif despite due notice to
penalty of reclusion perpetua and a fine ranging from One them and to the witness concerned, the former does not exert
hundred Thousand pesos (P100,000.00) to One million pesos reasonable effort to present the latter to the court.‖
(P1,000,000.00) shall be imposed.
―The member of the law enforcement agency or any other
- Example, you have a grenade and you used it to government employee mentioned in the preceding paragraphs
threaten someone, you can be held liable for grave shall not be transferred or reassigned to any other government
threats. office located in another territorial jurisdiction during the
- Penalty is reclusion perpetua and if the same is used pendency of the case in court.― Except of course if there is a
compelling reason.
in the commission of a crime, reclusion perpetua for
possession explosive as well as the penalty of the
SEC 4-A. Criminal Liability for Planting of Evidence. - Any
crime committed.
person who is found guilty of 'planting' any explosive or
- What about if the explosice was used to kill a person?
incendiary device or any part, ingredient, machinery, tool or
Crime committed is murder.
instrument of any explosive or incendiary device, whether
SEC. 3-D. Former Conviction or Acquittal; Double Jeopardy. chemical, mechanical, electronic, electrical or otherwise, shall
suffer the penalty of reclusion perpetua.
- Subject to the provisions of the Rules of Court on double
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- If it is committed by law enforcers, it is hard to prove - the act of selling, copying, reproducing, broadcasting,
because they are presumed to have performed their sharing, showing or exhibiting the photo or video
duties. coverage or recordings of such sexual act or similar
- The court will weigh the testimony of the enforcing activity through VCD/DVD, internet, cellular phones
officers or testimony of the accused. and similar means or device without the written
consent of the person/s involved, notwithstanding
(The rest of the sections/provisions are for reading purposes.) that consent to record or take photo or video
coverage of same was given by such person's.
R.A No. 9995 The case of Hayden Kho, taking the video
Anti-Photo and Video Voyeurism Act of 2009 and uploaded it in the internet. Hayden Kho
- This law has something to do with our right to would have been convicted under this
privacy and dignity which is one of our human rights. provision of law if this was enacted during
the time of their scandal. He was charged
Broadcast under RA 9262 alleging that the video
coverage was taken without the consent of
- means to make public, by any means, a visual image
Halili. But it was dismissed. But if this law
with the intent that it be viewed by a person or
was enacted before, he would have been
persons.
liable because if a picture is shared or made
Capture public, it does not require written consent.
- means the act of taking photo or video coverage of a means believe that he/she could disrobe in
person or group of persons performing sexual act or privacy, without being concerned that an image or
a private area of the person was being captured, or
any similar activity or of capturing an image of the
private area of a person or persons without the circumstances in which a reasonable person would
believe that a private area of the person would not
latter's consent, under circumstances in which such
be visible to the public, regardless of whether that
person/s has/have a reasonable expectation of person is in a public or private place
privacy, or
Q: How about in KTV bars where women dance naked
so it can be that it is with consent
and someone took pictures or videos the same, is the one
reasonable expectation of privacy
taking the photo or the video liable?
o meaning, you can remove your
clothes without being worried that
A: No, because they are not under the circumstances
a picture is taken on you.
where a person has reasonable expectation of privacy.
o believe that he/she could disrobe in
privacy, without being concerned
that an image or a private area of Prohibited Acts (Section 4)
the person was being captured; or
circumstances in which a It is hereby prohibited and declared unlawful for any person:
reasonable person would believe
that a private area of the person (a) To take photo or video coverage of a person or group of
persons performing sexual act or any similar activity or
would not be visible to the public,
to capture an image of the private area of a person such
regardless of whether that person is as the naked or undergarment clad genitals, public
in a public or private place. area, buttocks or female breast without the consent of
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the person involved and under circumstances in which Q: What if the offender did not take any picture or video but
the person has a reasonable expectation of privacy instead used his fertile memory, what was the crime
(b) To copy or reproduce, or to cause to be copied or committed?
reproduced, such photo or video or recording of sexual
act or any similar activity with or without A: Unjust vexation or ―Rape ex parte‖ (JOKE! haha)
consideration;
RA 4200
(c) To sell or distribute, or cause to be sold or distributed, ANTI-WIRE TAPPING ACT
such photo or video or recording of sexual act, whether Acts Penalized (Very important!)
it be the original copy or reproduction thereof; or
(d) To publish or broadcast, or cause to be published or It shall be unlawful for any person, not being
broadcast, whether in print or broadcast media, or authorized by all the parties to any private
show or exhibit the photo or video coverage or communication or spoken word, to tap any wire or
recordings of such sexual act or any similar activity cable, or by using any other device or arrangement, to
through VCD/DVD, internet, cellular phones and other secretly overhear, intercept, or record such
similar means or device. communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
The prohibition under paragraphs (b), (c) and (d) shall dictaphone or walkie-talkie or tape recorder, or
apply notwithstanding that consent to record or take however otherwise described
photo or video coverage of the same was given by such
person/s. Any person who violates this provision shall – ―Any person‖, including the participant of s
be liable for photo or video voyeurism as defined conversation
herein.
It shall also be unlawful for any person, be he a
Penalties (Section 5) participant or not in the act or acts penalized in the next
preceding sentence
The penalty of imprisonment of not less that three (3) i. to knowingly possess any tape record, wire
years but not more than seven (7) years and a fine of record, disc record, or any other such record,
not less than One hundred thousand pesos or copies thereof, of any communication or
(P100,000.00) but not more than Five hundred thousand spoken word in the manner prohibited by this
pesos (P500,000.00), or both, at the discretion of the law; or
court ii. to replay the same for any other person or
If the violator is a juridical person, its license or persons; or
franchise shall be automatically be deemed revoked iii. to communicate the contents thereof, either
and the persons liable shall be the officers thereof verbally or in writing, or
including the editor and reporter in the case of print iv. to furnish transcriptions thereof, whether
media, and the station manager, editor and broadcaster complete or partial, to any other person
in the case of a broadcast media.
Provided, that the use of such record or any copies
Exemption (Section 6) thereof as evidence in any civil, criminal investigation
or trial of offenses mentioned in section 3 hereof, shall
Nothing contained in this Act, however, shall render it not be covered by this prohibition.
unlawful or punishable for any peace officer, who is
– The recording may be used as evidence against the
authorized by a written order of the court, to use the
violator
record or any copy thereof as evidence in any civil,
criminal investigation or trial of the crime of photo or Q: Is the telephone extension covered by the prohibition under
video voyeurism. this law?
Inadmissibility of Evidence (Section 7)
A: Gaanan vs IAC, GR. L-69809, Oct. 16, 1986
Any record, photo or video, or copy thereof, obtained No, because a telephone extension line is not the device or
or secured by any person without court order shall not
arrangement contemplated by the law and the use of an
be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation extension line cannot be considered as wire-tapping. (No.
XX, MCQ, 2013 BAR)
But it may be admissible in evidence against the person
who took such photo or video
Penalties (Sec. 2)
entrenched principle in criminal procedure that the institution Training, or Citizen's Army Training. The physical, mental and
of criminal charges, including whom and what to charge, is psychological testing and training procedure and practices to
addressed to the sound discretion of the public prosecutor. determine and enhance the physical, mental and psychological fitness
of prospective regular members of the Armed Forces of the
But when the political offense doctrine is asserted as a defense Philippines and the Philippine National Police as approved by the
in the trial court, it becomes crucial for the court to determine Secretary of National Defense and the National Police Commission
whether the act of killing was done in furtherance of a political duly recommended by the Chief of Staff, Armed Forces of the
end, and for the political motive of the act to be conclusively Philippines and the Director General of the Philippine National
demonstrated. Police shall not be considered as hazing for the purpose of this Act.
IOW an accused charged with murder would raise the defense - Villareal v. People, GR 151258, December 1, 2014: case which
of political offense doctrine the court should not automatically triggered the enactment of the law
dismiss the case. It should conduct trial to determination - Hazing is not illegal per se. This law does not prohibit
whether the killings were actually committed in furtherance of hazing, what is prohibited is hazing which is done by
inflicting physical violence or injury but hazing which is
rebellion.
done without causing any injury or any physical injury to
the recruit neophyte or applicant is not prohibited.
If it appears at any time before judgment that a mistake has
EX: If military personnel would create on his own anything
been made in charging the proper offense, the court shall
which involves physical, mental or psychological testing to
dismiss the original complaint or information upon the filing
a recruit then that is considered hazing.
of a new one charging the proper offense in accordance with
Section 19, Rule 119, provided the accused shall not be placed SECTION 2. No hazing or initiation rites in any form or manner by
in double jeopardy. (Ocampo v. Abando, GR 176830, 185587, a fraternity, sorority or organization shall be allowed without prior
185636, 190005, February 11, 2014, 726 PHIL 441-497) written notice to the school authorities or head of organization seven
(7) days before the conduct of such initiation. The written notice
IOW the court will not immediately dismiss the case if the shall indicate the period of the initiation activities which shall not
accused would raise the political offense doctrine but further exceed three (3) days, shall include the names of those to be subjected
the court should conduct trial or the prosecution to present to such activities, and shall further contain an undertaking that no
evidence to determine whether the killings were committed in physical violence be employed by anybody during such initiation
furtherance of rebellion. If the court finds that indeed the rites.
killings were committed in furtherance of rebellion, it will
order the dismissal of the case upon only when the proper - This law does not completely prohibit hazing. This law
information charging the appropriate offense is filed. merely regulates hazing. As a form of regulation, one way
to regulate hazing is that the group or the fraternity who is
REPUBLIC ACT NO. 8049 going to conduct an initiation of rites is required to notify
the school or the head of the organization 7 days before the
AN ACT REGULATING HAZING AND OTHER FORMS conduct of such initiation and the school authorities must
OF INITIATION RITES IN FRATERNITIES, SORORITIES, see to it that no physical violence should be employed.
- Does not provide for a penalty for the non-compliance.
AND ORGANIZATIONS AND PROVIDING PENALTIES
THEREFOR (Anti-Hazing Law, REPUBLIC ACT NO. 8049,
[June 7, 1995]) SECTION 3. The head of the school or organization or their
representatives must assign at least two (2) representatives of
SECTION 1. Hazing as used in this Act is an initiation rite or
the school or organization as the case may be, to be present during
practice as a prerequisite for admission into membership in a
the initiation. It is the duty of such representative to see to it that no
fraternity, sorority or organization by placing the recruit neophyte or
physical harm of any kind shall be inflicted upon a recruit, neophyte
applicant in some embarrassing or humiliating situations such as
or applicant.
forcing him to do menial, silly, foolish and similar tasks or activities
or otherwise subjecting him to physical or psychological suffering or
- The head of the organization or school or representatives is
injury. told to promise that no physical violence would occur.
Other than his promise, must assign at least 2
The term organization shall include any club or the Armed Forces representatives present be during the initiation rite to see to
of the Philippines, Philippine National Police, Philippine Military it that no physical harm shall be inflicted on the recruit or
Academy, or officer and cadet corp of the Citizen's Military applicant.
Section 4. PENALTIES
4. RECLUSION TEMPORAL IN ITS MINIMUM PERIOD
If the person subjected to hazing or other forms of initiation
rites suffers any physical injury or dies as a result thereof, the (12 years and one day to 14 years and 8 months)
- They will not be charged anymore under the if in consequence of the hazing the victim shall have
RPC, but here. been ill or incapacitated for the performance on the
activity or work in which he was habitually engaged
for a period of more than thirty (30) days.
- Those responsible for Villa were just convicted of
Reckless Imprudence resulting in Homicide
6. PRISON MAYOR IN ITS MEDIUM PERIOD
because this law wasn‘t enacted that time yet.
(8 years and one day to 10 years)
2. RECLUSION TEMPORAL IN ITS MAXIMUM PERIOD
if the injury is less serious.
(17 years, 4 months and 1 day to 20 years) if in consequence of the
hazing the victim shall become
7. PENALTY OF PRISON MAYOR IN ITS MINIMUM
PERIOD
a. insane,
b. imbecile,
(6 years and one day to 8 years)
c. impotent or
d. blind.
if the injury would require medical attendance of one
(1) to nine (9) days.
- Under the RPC, this is characterized as serious
physical injuries and the penalty is Prision
This is 2 degrees higher than that in the RPC.
Mayor, but here it is reclusion temporal in its
maximum period. So the penalty here is higher. NOTE: The responsible officials of the school or of the police,
military or citizen's army training organization, may impose
3. RECLUSION TEMPORAL IN ITS MEDIUM PERIOD
the appropriate administrative sanctions on the person or the
persons charged under this provision even before their
(14 years, 8 months and one day to 17 years and 4 months)
conviction.
- if in consequence of the hazing the victim shall have
They can thus be subjected to expulsion.
lost the use of speech or
AGGRAVATING CIRCUMSTANCES:
the power to hear or to smell, or
shall have lost an eye, a hand, a foot, an arm or a leg
(a) when the recruitment is accompanied by force,
or
violence, threat, intimidation or deceit on the person
shall have lost the use of any such member shall have
of the recruit who refuses to join;
become incapacitated for the activity or work in
which he was habitually engaged.
(b) when the recruit, neophyte or applicant initially
- Under the RPC this is also Serious Physical Injuries, consents to join but upon learning that hazing will be
but the penalty here is also higher. committed on his person, is prevented from quitting;
(c) when the recruit, neophyte or applicant having The officers, former officers, or alumni of the
undergone hazing is prevented from reporting the organization, group, fraternity or sorority
unlawful act to his parents or guardians, to the proper
school authorities, or to the police authorities, - who actually planned the hazing although not
through force, violence, threat or intimidation; present when the acts constituting the hazing were
committed shall be liable as PRINCIPALS.
(d) when the hazing is committed outside of the school or
institution; or - If you joined in the planning but you weren‘t present
in the actual hazing because it‘s midterms, you are
(e) when the victim is below twelve (12) years of age at still liable as a principal.
the time of the hazing.
NOTE: A fraternity or sorority's adviser
The owner of the place where hazing is conducted shall be - who is present when the acts constituting the hazing
liable as an ACCOMPLICE, provided that were committed and failed to take action to prevent
the same from occurring shall be liable as
1. he has actual knowledge of the hazing conducted PRINCIPAL.
therein but
2. failed to take any action to prevent the same from The presence of any person during the hazing is prima facie
occurring. evidence of participation therein as principal unless he
prevented the commission of the acts punishable herein.
If you are the owner of the beach house which was
rented by the fraternity for example, you have to - Note that under the RPC, mere presence in the crime
immediately take action upon learning that hazing is scene will not make you liable unless you perform
about to or is being conducted in the said beach any act in furtherance of the commission of the crime.
house.
- But here in hazing, mere presence is a prima facie
If the hazing is held in the home of one of the officers or evidence of participation.
members of the fraternity, group, or organization, the
parents shall be held liable as PRINCIPALS Any person charged under this provision shall NOT BE
ENTITLED TO THE MITIGATING CIRCUMSTANCE
1. when they have actual knowledge of the hazing THAT THERE WAS NO INTENTION TO COMMIT SO
conducted therein but GRAVE A WRONG.
2. failed to take any action to prevent the same from
occurring. Note: This section shall apply to the president, manager,
director or other responsible officer of a corporation engaged
The school authorities including faculty members in hazing as a requirement for employment in the manner
provided herein.
1. who consent to the hazing or
2. who have actual knowledge thereof, To summarize (Pp. vs Dungo GR No. 209464, July 1, 2015):
3. but failed to take any action to prevent the same from
occurring
The following shall be liable as PRINCIPALS:
- shall be punished as ACCOMPLICES for the acts of
hazing committed by the perpetrators. 1. The actual participants in the hazing
Take Note: the mere fact that you have knowledge of - the presence of any person during the hazing is prima
the commission of the crime does not make you liable, facie evidence of actual participation, unless he
much less as a principal, except only for misprision of prevented the commission of the acts punishable
treason. herein
- The fact that you failed to prevent the commission of 2. The officers, former officers, or alumni of the
a crime doesn‘t make you liable for any crime under organization, group, fraternity or sorority who
the RPC but it is different here, because mere actually planned the hazing
knowledge and failure to prevent hazing can make
you liable either as a principal or an accomplice. - Although these planners were not present during the
hazing.
3. The officers or members of an organization group, - This is the purpose of the anti- carnapping act- in
fraternity or sorority who induced the victim to be order to remedy the discrepancy in the penalties
present thereat under the RPC.
4. The fraternity or sorority's adviser who was present CARNAPPING" is the taking, with intent to gain, of a motor
when the acts constituting hazing were committed, vehicle belonging to another without the latter's consent, or by
and failed to take action to prevent them from means of violence against or intimidation of persons, or by
occurring. using force upon things.
5. The parents of the officers or members of the "MOTOR VEHICLE" is any vehicle propelled by any power
fraternity, group, or organization, who owns the other than muscular power using the public highways, but
house where the hazing was conducted and failed to excepting road rollers, trolley cars, street-sweepers, sprinklers,
take action to prevent the hazing. lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks,
and cranes if not used on public highways, vehicles, which run
The following shall be liable as ACCOMPLICE: only on rails or tracks, and tractors, trailers and traction
engines of all kinds used exclusively for agricultural purposes.
1. The school authorities, including faculty members,
Trailers having any number of wheels, when propelled or
who consented to the hazing or who have actual
intended to be propelled by attachment to a motor vehicle,
knowledge thereof, but failed to take any action to
shall be classified as separate motor vehicle with no power
prevent the same;
rating.
2. The owner of the place where the hazing was
conducted can also be an accomplice to the crime, - Bill dozers are equipments, not motor vehicles.
when he has actual knowledge of the hazing - Qualified theft and Robbery still applies.
conducted therein and he failed to take any steps to - What can be covered by Carnapping are those not
stop the same. falling within the exceptions.
RA. 6539 AN ACT PREVENTING AND PENALIZING Sec.7 - Refers to the duty of the collector of customs to report
CARNAPPING the arrival of imported motor vehicle
- The anti- carnapping act was enacted in order to Sec.8 -Refers to the duty of importers/sellers/distributors of
remedy the discrepancy created by the RPC. Because motor vehicles to keep record of stocks
carnapping is actually theft or robbery of motor
vehicle. Sec.10 - any person who shall undertake to assemble or rebuild
or cause the assembling or rebuilding a motor vehicle shall
first secure certificate of clearance from PNP
Discrepancy in the RPC:
Sec. 11 – clearance for shipment of motor vehicles
First scenario:
Sec. 14 (To supply the discrepancy in the RPC as to provisions
Let‘s say you stole a parked car. The car is worth under theft/robbery)
1Million, the crime there is qualified theft because it‘s
Simple Carnapping - Any person who is found guilty of
a motor vehicle and so the penalty is Reclusion
carnapping, irrespective of the value of motor vehicle taken, be
Perpetua.
punished by imprisonment for not less than 14yrs and 8mo.
and not more than 17yrs and 4mo., when the carnapping is
Second scenario: committed without violence or intimidation of persons, or
force upon things;
Suppose there‘s a driver inside playing pokemon.
You knocked and told him ―get out from the car this Carnapping with violence - and by imprisonment for not less
is carnap!‖ What is the crime there? Ans. Simple than 17yrs and 4mo. and not more than 30yrs, when the
Robbery and the penalty is Prision mayor. carnapping is committed by means of violence against or
intimidation of any person, or force upon things; and the
- Note that in the 1st scenario, the penalty is higher penalty of life imprisonment to death shall be imposed when
than the robbery mentioned in the 2nd scenario, the owner, driver or occupant of the carnapped motor vehicle
notwithstanding the fact that in the 2nd scenario, is killed in the commission of the carnapping.
the victim was present.
Qualified carnapping/ carnapping in its aggravated form -
When in the course of carnapping or in the occasion thereof,
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the owner/driver/occupant of the carnapped vehicle is killed a.refers to an act by which severe pain or suffering, whether
or raped; physical/mental, is intentionally inflicted on a person;
-as long as the main purpose is to carnap; if the main purpose b.for purposes of obtaining from him/her or 3rd persons
is to kill and thereafter the motor vehicle is taken away, 2 information or confession, or punishing him/her for an act
crimes are committed, either murder/homicide and he/she has committed or is suspected of having committed; or
carnapping. intimidating or coercing him/her or discrimination of any
kind.
-supposed what was killed is not the driver/occupant, wherein
after taking the vehicle, the carnapper drove the car at a high c. when such pain/suffering is inflicted by or at the instigation
speed due to pursuit from policemen, and in the course of the of or with the consent of acquiescence of a person in authority
pursuit, the carnapper ran over a pedestrian, what or agent of a person in authority.
crime/crimes are committed? Carnapping and reckless
imprudence resulting in homicide, Why not qualified -this law could only be violated if the torture is done by a
carnapping? To be held liable for such, it is necessary that the PA/APA or upon his inducement
person being killed in the commission of carnapping should be
the owner/driver/occupant of the motor vehicle. (People -purpose of this law is to value the dignity of a human person
vsParamil GR. No. 128056 March 31 2000; People vsSirad GR. and guarantee full respect for human rights
no.130594)
other cruel/inhuman degrading treatment or punishment -
-People vsNucom et.al Gr. No. 1791041 April 1 2013; accused now there refers to a deliberate or aggravating treatment or
here took away a taxi together with the driver, but later on the punishment which are not covered under sec. 4 of this act;
driver was just found dead and one of the carnappers turned inflicted by PA/APA
into a state witness and his co-accused was charged and
convicted of the crime of carnapping with homicide. Now take order of battle – refers to any document or determination
note, it was mentioned by the SC that there‘s no such crime of made by military/police/any law enforcement agency of the
carnapping with homicide, but in this 2013 case, SC affirmed govt. listing the names of persons/orgs that perceives to be
such ruling of the trial court. enemies of the state, and considered as targets as combatants
that it could deal with thru the use of means allowed by intl.
-In boundary system, which is the practice of operators of law.
public utilities, the crime committed of the driver if he fails to
return the vehicle he is driving is qualified theft, because August 26, 2016
although the driver is required to pay a fixed amount for the
use of the car, but according to the SC there is no transfer of Continuation on Anti-Torture Act
juridical possession but merely physical possession; juridical
transfer is prohibited by law. Such possession of the driver is The people who sponsored this law were victims of torture,
an extension of the possession of the owner. It doesn‘t mean and experienced these acts. Usually these happened during
that it is not estafa, because it would be different if the vehicle Martial Law.
is private, then in that case there is estafa, say for example
those in rent a car; what we are talking about here is the failure d) "Order of Battle" refers to any document or determination
to return of a public utility vehicle. (People vsBustenera GR. made by the military, police or any law enforcement agency of
No. 148233 June 8 2004) the government, listing the names of persons and
organizations that it perceives to be enemies of the State and
-carnapping is committed even if the one driving the motor that it considers as legitimate targets as combatants that it
vehicle is not the owner but an authorized driver. It is enough could deal with, through the use of means allowed by
that the motor vehicle belongs to another. domestic and international law.
the list of enemies of the government - leaders of NPA
-it is necessary under this law that the original intent is
carnapping, otherwise there would be 2 crimes committed.
Section 4.Acts of Torture. - For purposes of this Act, torture
shall include, but not be limited to, the following:
-what if the owner/driver/occupant is not killed? Then the
crime is carnapping with violence, not carnapping with
(a) Physical torture is a form of treatment or punishment
frustrated homicide.
inflicted by a person in authority or agent of a person in
R.A. 9745 ANTI-TORTURE ACT authority upon another in his/her custody that causes severe
pain, exhaustion, disability or dysfunction of one or more parts
Torture – elements of the body, such as:
(1) Systematic beating, headbanging, punching, kicking, (6) Causing unscheduled transfer of a person deprived of
striking with truncheon or rifle butt or other similar objects, liberty from one place to another, creating the belief that
and jumping on the stomach; he/she shall be summarily executed;
(2) Food deprivation or forcible feeding with spoiled food, (7) Maltreating a member/s of a person's family;
animal or human excreta and other stuff or substances not (8) Causing the torture sessions to be witnessed by the
normally eaten; person's family, relatives or any third party;
(3) Electric shock; - to extract information, and to punish (9) Denial of sleep/rest;
(4) Cigarette burning; burning by electrically heated rods, (10) Shame infliction such as stripping the person naked,
hot oil, acid; by the rubbing of pepper or other chemical parading him/her in public places, shaving the victim's head
substances on mucous membranes, or acids or spices or putting marks on his/her body against his/her will;
directly on the wound(s); same as the one in Batangas
(5) The submersion of the head in water or water polluted (11) Deliberately prohibiting the victim to communicate with
with excrement, urine, vomit and/or blood until the brink of any member of his/her family; and
suffocation; (12) Other analogous acts of mental/psychological torture.
(6) Being tied or forced to assume fixed and stressful bodily
position; Section 5.Other Cruel, Inhuman and Degrading Treatment or
(7) Rape and sexual abuse, including the insertion of foreign Punishment. - Other cruel, inhuman or degrading treatment or
objects into the sex organ or rectum, or electrical torture of punishment refers to a deliberate and aggravated treatment or
the genitals; punishment not enumerated under Section 4 of this Act,
(8) Mutilation or amputation of the essential parts of the inflicted by a person in authority or agent of a person in
body such as the genitalia, ear, tongue, etc.; authority against another person in custody, which attains a
(9) Dental torture or the forced extraction of the teeth; level of severity sufficient to cause suffering, gross humiliation
(10) Pulling out of fingernails; or debasement to the latter. The assessment of the level of
(11) Harmful exposure to the elements such as sunlight and severity shall depend on all the circumstances of the case,
extreme cold; including the duration of the treatment or punishment, its
(12) The use of plastic bag and other materials placed over physical and mental effects and, in some cases, the sex,
the head to the point of asphyxiation; religion, age and state of health of the victim.
(13) The use of psychoactive drugs to change the perception,
memory. alertness or will of a person, such as:
(i) The administration or drugs to induce confession Freedom from Torture and Other Cruel, Inhuman and Degrading
and/or reduce mental competency; or Treatment or Punishment
(ii) The use of drugs to induce extreme pain or certain
symptoms of a disease; and – Torture and other cruel, inhuman and degrading
(14) Other analogous acts of physical torture; and treatment or punishment as criminal acts shall apply to
these could be combinations, not necessarily separate all circumstances. A state of war or a threat of war,
acts. internal political instability, or any other public
emergency, or a document or any determination
(b) "Mental/Psychological Torture" refers to acts committed by comprising an "order of battle" shall not and can never
a person in authority or agent of a person in authority which be invoked as a justification for torture and other cruel,
are calculated to affect or confuse the mind and/or undermine inhuman and degrading treatment or punishment.
a person's dignity and morale, such as: – So, no infliction of torture – either mental of physical
(1) Blindfolding;
Prohibited Detention
this could be combined with physical torture. Like
covered eyes and then punching you so that you do
not know who's punching you – Secret detention places, solitary confinement,
(2) Threatening a person(s) or his/her relative(s) with bodily incommunicado or other similar forms of detention,
harm, execution or other wrongful acts; where torture may be carried out with impunity are
(3) Confinement in solitary cells or secret detention places; hereby prohibited.
(4) Prolonged interrogation; – In which case, (PNP), (AFP) and other law enforcement.
you will be investigated for a long time by different agencies concerned shall make an updated list of all
people detention centers and facilities under their respective
(5) Preparing a prisoner for a "show trial", public display or jurisdictions with the corresponding data on the
public humiliation of a detainee or prisoner; prisoners or detainees incarcerated or detained therein
like what is going on somewhere in Batangas - they such as, among others, names, date of arrest and
make the criminals go on a parade where people can incarceration, and the crime or offense committed.
see them. That can be mental torture
– This list shall be made available to the public at all – Any public officer or employee shall be liable as an
times, with a copy of the complete list available at the accessory if he/she has knowledge that torture or
respective national headquarters of the PNP and AFP. other cruel, inhuman and degrading treatment or
punishment is being committed and without
Exclusionary Rule; Exception
having participated therein, either as principal or
accomplice, takes part subsequent to its
– Any confession, admission or statement obtained as a
commission in any of the following manner:
result of torture shall be inadmissible in evidence in any
proceedings, EXCEPT if the same is used as evidence (a) By themselves profiting from or assisting the
against a person or persons accused of committing offender to profit from the effects of the act of
torture. torture or other cruel, inhuman and degrading
– It is covered by the so-called exclusionary rule. treatment or punishment;
(b) By concealing the act of torture or other cruel,
Who are Criminally Liable?
inhuman and degrading treatment or
punishment and/or destroying the effects or
Principal
instruments thereof in order to prevent its
discovery; or
(a) Any person who actually participated Or induced
(c) By harboring, concealing or assisting m the
another in the commission of torture or other cruel,
escape of the principal/s in the act of torture
inhuman and degrading treatment or punishment
or other cruel, inhuman and degrading
or who cooperated in the execution of the act of
treatment or punishment:
torture or other cruel, inhuman and degrading
treatment or punishment by previous or Provided, That the accessory acts are done with
simultaneous acts shall be liable as principal the abuse of the official's public functions.
(b) Any superior military, police or law enforcement
Penalties
officer or senior government official who issued an
order to any lower ranking personnel to commit
torture for whatever purpose shall be held equally (A) The penalty of RECLUSION PERPETUA shall be
liable as principals. imposed upon the perpetrators of the following acts:
(c) The immediate commanding officer of the unit 1. Torture resulting in the death of any person;
concerned of the AFP or the immediate senior 2. Torture resulting in mutilation;
public official of the PNP and other law 3. Torture with rape;
enforcement agencies shall be held liable as a 4. Torture with other forms of sexual abuse and, in
principal to the crime of torture or other cruel or consequence of torture, the victim shall have
inhuman and degrading treatment or punishment become insane, imbecile, impotent, blind or
for any act or omission, or negligence committed maimed for life; and
by him/her that shall have led, assisted, abetted or 5. Torture committed against children.
allowed, whether directly or indirectly, the (B) The penalty of RECLUSION TEMPORAL shall be
commission thereof by his/her subordinates. If imposed on those who commit any act of
he/she has knowledge of or, owing to the mental/psychological torture resulting in insanity,
circumstances at the time, should have known that complete or partial amnesia, fear of becoming insane or
acts of torture or other cruel, inhuman and suicidal tendencies of the victim due to guilt,
degrading treatment or punishment shall be worthlessness or shame.
committed, is being committed, or has been
committed by his/her subordinates or by others (C) The penalty of PRISION CORRECCIONAL shall be
within his/her area of responsibility and, despite imposed on those who commit any act of torture resulting
such knowledge, did not take preventive or in psychological, mental and emotional harm other than
corrective action either before, during or those described 1n paragraph (b) of this section. '
immediately after its commission, when he/she (D) The penalty of PRISION MAYOR IN ITS MEDIUM
has the authority to prevent or investigate AND MAXIMUM PERIODS shall be imposed if, in
allegations of torture or other cruel, inhuman and consequence of torture, the victim shall have lost the power
degrading treatment or punishment but failed to of speech or the power to hear or to smell; or shall have lost
prevent or investigate allegations of such act, an eye, a hand, a foot, an arm or a leg; or shall have lost the
whether deliberately or due to negligence shall also use of any such member; Or shall have become permanently
be liable as principals. incapacitated for labor.
Accessory
(E) The penalty of PRISION MAYOR IN ITS – Torture as a crime SHALL NOT ABSORB OR SHALL
MINIMUM AND MEDIUM PERIODS shall be imposed if, NOT BE ABSORBED by any other crime or felony
in consequence of torture, the victim shall have become committed as a consequence, or as a means in the
deformed or shall have lost any part of his/her body other conduct or commission thereof. In which case, torture
than those aforecited, or shall have lost the use thereof, or shall be treated as a SEPARATE AND INDEPENDENT
shall have been ill or incapacitated for labor for a period of CRIMINAL ACT whose penalties shall be imposable
more than ninety (90) days. without prejudice to any other criminal liability
provided for by domestic and international laws.
(F) The penalty of PRISION CORRECCIONAL IN ITS
MAXIMUM PERIOD TO PRISION MAYOR IN ITS Exclusion from the Coverage of Special Amnesty Law
MINIMUM PERIOD shall be imposed if, in consequence of
torture, the victim shall have been ill or incapacitated for – In order not to depreciate the crime of torture, persons
labor for mare than thirty (30) days but not more than who have committed any act of torture shall not benefit
ninety (90) days. from any special amnesty law or similar measures that
will have the effect of exempting them from any
(G) The penalty of PRISION CORRECCIONAL IN ITS
criminal proceedings and sanctions.
MINIMUM AND MEDIUM PERIOD shall be imposed if, in
consequence of torture, the victim shall have been ill or Applicability of the RPC
incapacitated for labor for thirty (30) days or less.
– The provisions of the RPC insofar as they are applicable
(H) The penalty of ARRESTO MAYOR shall be imposed
shall be SUPPLETORY to this Act. Moreover, if the
for acts constituting cruel, inhuman or degrading treatment
commission of any crime punishable under Title Eight
or punishment as defined in Section 5 of this Act.
(Crimes Against Persons) and Title Nine (Crimes Against
(I) The penalty of PRISION CORRECCIONAL shall be Personal Liberty and Security) of the RPC is attended by
imposed upon those who establish, operate and maintain any of the acts constituting torture and other cruel,
secret detention places and/or effect or cause to effect inhuman and degrading treatment or punishment as
solitary confinement, incommunicado or other similar forms defined herein, the penalty to be imposed shall be in its
of prohibited detention as provided in Section 7 of this Act MAXIMUM PERIOD..
where torture may be carried out with impunity. – Ordinary Mitigating Circumstances cannot offset. Only
Privileged Mitigating Circumstances
(J) The penalty of ARRESTO MAYOR shall be imposed
upon the responsible officers or personnel of the AFP, the Republic Act No. 9775 - Anti-Child Pornography Act of 2009
PNP and other law enforcement agencies for failure to
perform his/her duty to maintain, submit or make available Child
to the public an updated list of detention centers and
facilities with the corresponding data on the prisoners or - refers to a person below eighteen (18) years of age or
detainees incarcerated or detained therein, pursuant to over, but is unable to fully take care of
Section 7 of this Act. himself/herself from abuse, neglect, cruelty,
What is the basis of this law? exploitation or discrimination because of a physical or
mental disability or condition.
(d) To fully adhere to the principles and standards on the - Same definition in Child Abuse Act and RA 9262
absolute condemnation and prohibition of torture as - In RA 9344 – The definition of the child is limited to below
provided for in the 1987 Philippine Constitution; various 18 years old
international instruments to which the Philippines is a - For the purpose of this Act, a child shall also refer
State party such as, but not limited to, the International to:(expanded definition)
Covenant on Civil and Political Rights (ICCPR), the 1. a person regardless of age who is
Convention on the Rights of the Child (CRC), the presented, depicted or portrayed as a child
Convention on the Elimination of All Forms of as defined herein; and
Discrimination Against Women (CEDA W) and the - This is what we call portray child.
Convention Against Torture and Other Cruel, Inhuman 2. computer-generated, digitally or manually
or Degrading Treatment or Punishment (CAT); and all crafted images or graphics of a person who
other relevant international human rights instruments to is represented or who is made to appear to
which the Philippines is a signatory. be a child as defined herein.
- This is what we call virtual child.
Torture as a Separate and Independent Crime - Ex: ―Sweetie‖ the computer-generated
child.
years old and induced her to perform pornographic when two (2) or more persons come to an
acts in front of the webcam or camera. agreement concerning the commission of any of
the said prohibited acts and decide to commit it;
Pandering and
o Mere conspiracy is punishable. It is a crime
- the act of offering, advertising, promoting, under this law
(l) To possess any form of child pornography.
representing or distributing through any means any
material or purported material that is intended to Sec. 5. Syndicated Child Pornography - The crime of child
cause another to believe that the material or pornography is deemed committed by a syndicate if carried
purported material contains any form of child out by a group of three (3) or more persons conspiring or
pornography, regardless of the actual content of the confederating with one another and shall be punished under
Sec. 15(a) of this Act.
material or purported material.
- Refers to the number of offenders
Sec. 4. Unlawful or Prohibited Acts. - It shall be unlawful for
any person: Sec. 6. Who May File a Complaint. - Complaints on cases of
any form of child pornography and other offenses
(a) To hire, employ, use, persuade, induce or coerce a
punishable under this Act may be filed by the following:
child to perform in the creation or production of
(a) Offended party;
any form of child pornography;
(b) To produce, direct, manufacture or create any form o If too young then the parents will file the
of child pornography; case then;
(c) To publish offer, transmit, sell, distribute, (b) Parents or guardians;
broadcast, advertise, promote, export or import any (c) Ascendant or collateral relative within the third
form of child pornography; degree of consanguinity;
o Selling of CDs and DVDs relating to child (d) Officer, social worker or representative of a licensed
child-caring institution;
pornography even if you were not the one
(f) Officer or social worker of the Department of Social
taping it
Welfare and Development (DSWD);
o Sharing through cellphone of child
(g) Local social welfare development officer;
pornography is included
(h) Barangay chairman;
(d) To possess any form of child pornography with the
(i) Any law enforcement officer;
intent to sell, distribute, publish, or broadcast:
(j) At least three (3) concerned responsible citizens
Provided. That possession of three (3) or more
residing in the place where the violation occurred;
articles of child pornography of the same form
(k) Any person who has personal knowledge of the
shall be prima facie evidence of the intent to sell,
circumstances of the commission of any offense
distribute, publish or broadcast;
under this Act.
o If it is for personal consumption, you are still
- If no other person will act
liable under letter (l)
(e) To knowingly, willfully and intentionally provide
Sec. 8. Jurisdiction.
a venue for the commission of prohibited acts as,
- Family Court has jurisdiction over Child
but not limited to, dens, private rooms, cubicles,
Pornography cases
cinemas, houses or in establishments purporting to
be a legitimate business;
Section 9. Duties of an Internet Service Provider (ISP). - All
(f) For film distributors, theatres and
internet service providers (ISPs) shall notify the Philippine
telecommunication companies, by themselves or in
National Police (PNP) or the National Bureau of
cooperation with other entities, to distribute any
form of child pornography; Investigation (NBI) within seven (7) days from obtaining
facts and circumstances that any form of child pornography
(g) For a parent, legal guardian or person having
is being committed using its server or facility. Nothing in
custody or control of a child to knowingly permit
this section may be construed to require an ISP to engage in
the child to engage, participate or assist in any
the monitoring of any user, subscriber or customer, or the
form of child pornography;
content of any communication of any such person.
o Similar in the case in Cordova
(h) To engage in the luring or grooming of a child;
Sec. 10. Responsibility of Mall Owners/Operators and
(i) To engage in pandering of any form of child
Owners or Lessors of Other Business Establishments. - All
pornography;
mall owners/operators and owners or lessors of other
(j) To wilfully access any form of child pornography;
business establishments shall notify the PNP or the NBI
(k) To conspire to commit any of the prohibited acts
within seven (7) days from obtaining facts and circumstances
stated in this section. Conspiracy to commit any
that child pornography is being committed in their premises.
form of child pornography shall be committed
Provided, That public display of any form of child
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As discussed by Judge D
shall excludelawyers and accountants acting as independent business or financial capacity of the client;
legal professionals in relation to information concerning their 4. taking into account all known circumstances, it may
clients or where disclosure of information would compromise be perceived that the client's transaction is structured
in order to avoid being the subject of reporting
client confidences or the attorney-client relationship: Provided,
requirements under the Act;
That these lawyers and accountants are authorized to practice
5. any circumstance relating to the transaction which is
in the Philippines and shall continue to be subject to the observed to deviate from the profile of the client
provisions of their respective codes of conduct and/or and/or the client's past transactions with the covered
professional responsibility or any of its amendments." institution;
6. the transaction is in any way related to an unlawful
Essence of money laundering activity or offense under this Act that is about to be,
is being or has been committed; or
- money or its representatives which are proceeds from 7. any transaction that is similar or analogous to any of
illegal activities are transacted in order that they would the foregoing."
appear to have come from a legitimate source
EX: You have money from drugs. You deposit it in the Monetary instrument
bank so that later on when you withdraw it, it did not
anymore come from drugs but from the bank. - refers to:
1. coins or currency of legal tender of the Philippines, or
EX: You have money coming from illegal sources, you
of any other country;
either buy jewelry or stocks or buy properties. Later on you 2. drafts, checks and notes;
deposit it in the bank or when you sell the bought property, 3. securities or negotiable instruments, bonds,
the people cannot anymore say that such money came from commercial papers, deposit certificates, trust
an illegitimate source. certificates, custodial receipts or deposit substitute
instruments, trading orders, transaction tickets and
Purpose of money laundering confirmations of sale or investments and money
market instruments; and
- to prevent any attempt to conceal or disguise the identity of 4. other similar instruments where title thereto passes to
illegally obtained proceeds or money or its equivalent another by endorsement, assignment or delivery.
- persons either natural or juridical, who are required to - refers to any act establishing any right or obligation or
submit report to the AMLC (Anti-Money Laundering giving rise to any contractual or legal relationship between
Council) on transactions which are considered as covered the parties thereto. It also includes any movement of funds
transactions and suspicious transactions within 5 days by any means with a covered institution.
from occurrence thereof
- required to make a report with the AMLC any covered Unlawful activity
transaction or suspicious transaction
- refers to any act or omission or series or combination
Covered transaction thereof involving or having direct relation to the following:
1. Kidnapping for ransom under Article 267 of Act No.
- is a transaction in cash or other equivalent monetary 3815, otherwise known as the Revised Penal Code, as
instrument involving a total amount in excess of Five amended;
hundred thousand pesos (P500,000.00) within one (1) 2. Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of
banking day Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002;
3. Section 3 paragraphs B, C, E, G, H and I of Republic
Suspicious transaction Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act;
- are transactions with covered institutions, regardless of the 4. Plunder under Republic Act No. 7080, as amended;
amounts involved, where any of the following 5. Robbery and extortion under Articles 294, 295, 296,
circumstances exist: 299, 300, 301 and 302 of the Revised Penal Code, as
1. there is no underlying legal or trade obligation, amended;
purpose or economic justification; 6. Jueteng and Masiao punished as illegal gambling
2. the client is not properly identified; under Presidential Decree No. 1602;
3. the amount involved is not commensurate with the 7. Piracy on the high seas under the Revised Penal
Code, as amended and Presidential Decree No. 532; Disposition of Firearms, Ammunition or Explosives;
8. Qualified theft under Article 310 of the Revised Penal 27. Violation of Presidential Decree No. 1612, otherwise
Code, as amended; known as the Anti-Fencing Law;
9. Swindling under Article 315 and Other Forms of 28. Violation of Section 6 of Republic Act No. 8042,
Swindling under Article 316 of the Revised Penal otherwise known as the Migrant Workers and
Code, as amended; Overseas Filipinos Act of 1995, as amended by
10. Smuggling under Republic Act Nos. 455 and 1937; Republic Act No. 10022;
11. Violations of Republic Act No. 8792, otherwise 29. Violation of Republic Act No. 8293, otherwise known
known as the Electronic Commerce Act of 2000; as the Intellectual Property Code of the Philippines;
12. Hijacking and other violations under Republic Act 30. Violation of Section 4 of Republic Act No. 9995,
No. 6235; destructive arson and murder, as defined otherwise known as the Anti-Photo and Video
under the Revised Penal Code, as amended; Voyeurism Act of 2009;
13. Terrorism and conspiracy to commit terrorism as 31. Violation of Section 4 of Republic Act No. 9775,
defined and penalized under Sections 3 and 4 of otherwise known as the Anti-Child Pornography Act
Republic Act No. 9372; of 2009;
14. Financing of terrorism under Section 4 and offenses 32. Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11,
punishable under Sections 5, 6, 7 and 8 of Republic 12 and 14 of Republic Act No. 7610, otherwise known
Act No. 10168, otherwise known as the Terrorism as the Special Protection of Children Against Abuse,
Financing Prevention and Suppression Act of 2012; Exploitation and Discrimination;
15. Bribery under Articles 210, 211 and 211-A of the 33. Fraudulent practices and other violations under
Revised Penal Code, as amended, and Corruption of Republic Act No. 8799, otherwise known as the
Public Officers under Article 212 of the Revised Penal Securities Regulation Code of 2000; and
Code, as amended; 34. Felonies or offenses of a similar nature that are
16. Frauds and Illegal Exactions and Transactions under punishable under the penal laws of other countries.
Articles 213, 214, 215 and 216 of the Revised Penal
Code, as amended; Qualified theft
17. Malversation of Public Funds and Property under
Articles 217 and 222 of the Revised Penal Code, as - PP vs Cahili (July 30, 2014, GR 199208): When the amount
amended; stolen is more than 12,000.00 the penalty is reclusion
18. Forgeries and Counterfeiting under Articles 163, 166, perpetua. It is not bailable anymore. Bail is not anymore a
l67, 168, 169 and 176 of the Revised Penal Code, as matter of right.
amended;
19. Violations of Sections 4 to 6 of Republic Act No. 9208, Money laundering
otherwise known as the Anti-Trafficking in Persons
Act of 2003; - is committed by any person who, knowing that any
20. Violations of Sections 78 to 79 of Chapter IV, of monetary instrument or property represents, involves, or
Presidential Decree No. 705, otherwise known as the relates to the proceeds of any unlawful activity:
Revised Forestry Code of the Philippines, as A. transacts said monetary instrument or property;
amended; B. converts, transfers, disposes of, moves, acquires,
21. Violations of Sections 86 to 106 of Chapter VI, of possesses or uses said monetary instrument or
Republic Act No. 8550, otherwise known as the property;
Philippine Fisheries Code of 1998; C. conceals or disguises the true nature, source, location,
22. Violations of Sections 101 to 107, and 110 of Republic disposition, movement or ownership of or rights with
Act No. 7942, otherwise known as the Philippine respect to said monetary instrument or property;
Mining Act of 1995; D. attempts or conspires to commit money laundering
23. Violations of Section 27(c), (e), (f), (g) and (i), of offenses referred to in paragraphs (a), (b) or (c);
Republic Act No. 9147, otherwise known as the E. aids, abets, assists in or counsels the commission of
Wildlife Resources Conservation and Protection Act; the money laundering offenses referred to in
24. Violation of Section 7(b) of Republic Act No. 9072, paragraphs (a), (b) or (c) above; and
otherwise known as the National Caves and Cave F. performs or fails to perform any act as a result of
Resources Management Protection Act; which he facilitates the offense of money laundering
25. Violation of Republic Act No. 6539, otherwise known referred to in paragraphs (a), (b) or (c) above.
as the Anti-Carnapping Act of 2002, as amended; - is also committed by any covered person who, knowing
26. Violations of Sections 1, 3 and 5 of Presidential that a covered or suspicious transaction is required under
Decree No. 1866, as amended, otherwise known as this Act to be reported to the Anti-Money Laundering
the decree Codifying the Laws on Illegal/Unlawful Council (AMLC), fails to do so.
Possession, Manufacture, Dealing in, Acquisition or
Jurisdiction of Money Laundering Cases instrumentalities used in or intended for use in any
unlawful activity as defined in Section 3(i) hereof;
- The regional trial courts shall have jurisdiction to try all
cases on money laundering. (12) to require the Land Registration Authority and all
- Those committed by public officers and private persons its Registries of Deeds to submit to the AMLC, reports
who are in conspiracy with such public officers shall be on all real estate transactions involving an amount in
under the jurisdiction of the Sandiganbayan. excess of Five hundred thousand pesos (P500,000.00)
within fifteen (15) days from the date of registration
Prosecution of Money Laundering of the transaction, in a form to be prescribed by the
AMLC. The AMLC may also require the Land
A. Any person may be charged with and convicted of Registration Authority and all its Registries of Deeds
both the offense of money laundering and the to submit copies of relevant documents of all real
unlawful activity as herein defined. estate transactions.‖
- cannot be complexed, cannot be absorbed (same with
torture) - This is one of the amendments.
- any person who violates this law can also be punished for
- This is so because it is possible that some druglords (for
the unlawful activity from which the money comes from example) conceal their money by buying condominiums
EX: One committed the crime of Anti-Graft. The money is and other real properties.
deposited in the bank. The person is liable for 2 crimes:
violation of the Anti-Graft Act and at the same time Money WHAT ARE THE WAYS OF PREVENTING MONEY
Laundering. Why money laundering? The money was LAUNDERING?
deposited in the bank so that it would appear that it comes
from a lawful source or legitimate source. Section 9. Prevention of Money Laundering; Customer
B. The prosecution of any offense or violation under this Identification Requirements and Record Keeping. –
Act shall proceed independently of any proceeding
relating to the unlawful activity (a) Customer Identification
- if one is acquitted for Anti Money laundering, it does not
follow that one would also be acquitted of the unlawful
- Anonymous accounts are strictly prohibited or
activity from which the money comes from
accounts under fictitious name. One is no longer
allowed to open ―Jose Velarde account‖.
Section 7. Creation of Anti-Money Laundering Council
(AMLC).
(b) Record Keeping
WHAT ARE THE FUNCTIONS OF THE AMLC? A: Covered persons shall report to the AMLC all
covered transactions and suspicious transactions
within FIVE (5) WORKING DAYS from occurrence
Among others are:
thereof, unless the AMLC prescribes a different
period not exceeding fifteen (15) working days.
(4) to cause the filing of complaints with the
Department of Justice or the Ombudsman for the
SEC. 10. Freezing of Monetary Instrument or Property.
prosecution of money laundering offenses;
Upon a verified ex parte petition by the AMLC and after Provided, further, That this new rule shall not apply to pending
determination that probable cause exists that any monetary cases in the courts. In any case, the court should act on the
instrument or property is in any way related to an unlawful petition to freeze within twenty-four (24) hours from filing of
activity, the Court of Appeals may issue a freeze order which the petition. If the application is filed a day before a
shall be effective immediately, and which shall not exceed six nonworking day, the computation of the twenty-four (24)-hour
(6) months depending upon the circumstances of the case. period shall exclude the nonworking days.
Provided, That if there is no case filed against a person whose Q: Why is it that the court should act upon the
account has been frozen within the period determined by the petition immediately (24hrs)?
court, the freeze order shall be deemed ipso facto lifted.
A: So as not to defeat its purpose. Example:
Judge D: Before the election (or I think it was in the middle During the time of the late CJ, what was said at
of the election period), sometime in March, the CA issued a the beginning of the proceedings was that he had
freeze order on the accounts of Binay. I’m not sure if it was millions in his account. When it was checked later
already lifted specially now that he’s no longer immune on, only P10k was found (was left).
from suit. That’s one example of Sec 10.
―A person whose account has been frozen may file a motion to
Q: Who files the petition for freeze order? lift the freeze order and the court must resolve this motion
before the expiration of the freeze order.
A: It is the AMLC.
―No court shall issue a temporary restraining order or a writ of
Q: Where does it file the petition? injunction against any freeze order, except the Supreme
Court.‖
A: With the CA
- There is a similar order that can be issued by
Q: What is the name of the petition? the Court, and that is the Bank Inquiry
Order (Sec 11).
- The AMLC will not look into the account but - Note that under Sec 11, the order may be
will merely freeze it. issued by the RTC, not anymore by the CA
because it says any competent court.
(Last paragraph of Sec 10)
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CRIMINAL LAW REVIEW (Book 1)
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- According to the SC, the filing of a case for a belongs to him and for segregation or
violation of AMLA is not a condition exclusion of the monetary instrument or
precedent for the issuance of a bank inquiry property corresponding thereto.
order, so long as there is probable cause.
Q: Where should the verified petition be
FREEZE ORDER vs. BANK INQUIRY ORDER (Republic vs filed?
Eugenio GR No. 174629, February 14 ♥, 2008 )
A: The verified petition shall be filed with
FREEZE ORDER BANK INQUIRY the court which rendered the judgment of
ORDER conviction and order of forfeiture.
The AMLC will not The AMLC will look
examine the bank into the transactions in Q: When should it be filed?
account. the account.
Does not require Requires notice and A: within fifteen (15) days from the date of
notice and hearing. hearing. the finality of the order or forfeiture.
Can only be issued by Can also be issued by
the CA. the RTC.
- In default of which the said order
shall become final and executory.
GR: The AMLC cannot examine a bank This provision shall apply in both
account without an order from the court. civil and criminal forfeiture.
EXC: (instances when the AMLC can examine (c) Payment in Lieu of Forfeiture.
even without a court order.) When the money
comes from any of the following:
- Where the court has issued an order of
forfeiture of the monetary instrument or
kidnapping, property subject of a money laundering
violations of RA 9165 offense defined under Section 4, and said
destructive arson order cannot be enforced because any
murder particular monetary instrument or property
cannot, with due diligence, be located, or it
EXC to the EXC: DOLLAR ACCOUNTS are has been substantially altered, destroyed,
strictly confidential. (Otherwise there will be diminished in value or otherwise rendered
a violation of RA 6426 Foreign Currency worthless by any act or omission,
Deposit Act of the Philippines). GSIS vs. CA -
et al., June 8, 2011 - the court may, instead of enforcing the order
of forfeiture of the monetary instrument or
Section 12. Forfeiture Provisions. – property or part thereof or interest therein,
accordingly order the convicted offender to
(a) Civil Forfeiture. – When there is a covered pay an amount equal to the value of said
transaction report made, and the court has, in a monetary instrument or property. This
petition filed for the purpose ordered seizure of any provision shall apply in both civil and
criminal forfeiture.
monetary instrument or property, in whole or in part,
directly or indirectly, related to said report, the
Revised Rules of Court on civil forfeiture shall apply. NOTE: The 34 unlawful activities enumerated here is what we
call the PREDICATE CRIMES.
(b) Claim on Forfeited Assets.
September 9, 2016
- Where the court has issued an order of
forfeiture of the monetary instrument or PD. 1602 Illegal Gambling as amended by RA 9287
property in a criminal prosecution for any
money laundering offense defined under -violation of this is one of the predicate acts of AMLA
Section 4 of this Act, the offender or any
-the amended 9287 is only with regard to numbers game;
other person claiming an interest therein
(jueteng, masiao, last 2)
may apply, by verified petition, for a
declaration that the same legitimately
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-gambling is not illegal per se (for example in casinos); only -Violation of this law is a crime against moral turpitude
considered as a crime if not authorized by law
Section 2.Informer's reward. Any person who shall disclose
Sub par. (2) information that will lead to the arrest and final conviction of
the malfactor shall be rewarded twenty percent of the cash
-Any person who shall knowingly permit any form of money or articles of value confiscated or forfeited in favor of
gambling referred to in the preceding subparagraph to be the government.
carried on in inhabited or uninhabited place or in any
building, vessel or other means of transportation owned or
controlled by him. If the place where gambling is carried on Republic Act No. 9287 April 2, 2004
has a reputation of a gambling place or that prohibited AN ACT INCREASING THE PENALTIES FOR ILLEGAL
gambling is frequently carried on therein, or the place is a NUMBERS GAMES, AMENDING CERTAIN PROVISIONS
public or government building or barangay hall OF PRESIDENTIAL DECREE NO. 1602, AND FOR OTHER
PURPOSES
Par. (b) - the amendment to PD 1602
-Maintainer/Conductor - persons who sits up or
Sec. 2.Definition of Terms. - As used in this Act, the following
furnishes/manages the means in which to carry the gambling
terms shall mean:
game or scheme
a) Illegal Numbers Game. - Any form illegal gambling
activity which uses numbers or combinations thereof as
Par. (c)
factors in giving out jackpots.
-The penalty of prision mayor in its medium period with b) Jueteng. - An illegal numbers game that involves the
temporary absolute disqualification or a fine of six thousand combination of thirty-seven (37) numbers against thirty-
pesos shall be imposed if the maintainer, conductor or banker seven (37) numbers from number one (1) to thirty seven (37)
of said gambling schemes is a government official,or where or the combination of thirty-eight (38) numbers in some
such government official is the player, promoter, referee, areas, serving as a form of local lottery where bets are placed
umpire, judge or coach in case of game fixing, point shaving and accepted per combination, and its variants.
and machination. c) Masiao. - An illegal numbers game where the winning
combination is derived from the results of the last game of
Par. (d) Jai Alai or the Special Llave portion or any result thereof
based on any fictitious Jai Alai game consisting of ten (10)
-The penalty of prisioncorreccional in its medium period or a players pitted against one another, and its variants.
fine ranging from four hundred to two thousand pesos shall be d) Last Two. - An illegal numbers game where the winning
imposed upon any person who shall, knowingly and without combination is derived from the last two (2) numbers of the
lawful purpose in any hour of any day, possess any lottery first prize of the winning Sweepstakes ticket which comes
list, paper or other matter containing letters, figures, signs or out during the weekly draw of the Philippine Charity
symbols pertaining to or in any manner used in the games of Sweepstakes Office (PCSO), and its variants.
jueteng, jai-alai or horse racing bookies, and similar games of e) Bettor ("Mananaya", "Tayador" or variants thereof). - Any
lotteries and numbers which have taken place or about to take person who places bets for himself/herself or in behalf of
place.
another person, or any person, other than the personnel or Sec. 4.Possession of Gambling Paraphernalia or Materials. -
staff of any illegal numbers game operation. The possession of any gambling paraphernalia and other
f) Personnel or Staff of Illegal Numbers Game Operation. - materials used in the illegal numbers game operation shall
Any person, who acts in the interest of the maintainer, be deemed prima facie evidence of any offense covered by
manager or operator, such as, but not limited to, an this Act.
accountant, cashier, checker, guard, runner, table manager, In PD 1602, possession of gambling paraphernalia
usher, watcher, or any other personnel performing such is a crime. But in jueteng and numbers game,
similar functions in a building structure, vessel, vehicle, or possession of gambling paraphernalia is only a
any other place where an illegal numbers game is operated PRIMA FACIE EVIDENCE of any offense covered
or conducted. by this act depending upon the circumstances.
g) Collector or Agent ("Cabo", "Cobrador", "Coriador" or
variants thereof). - Any person who collects, solicits or Ex: you bought masiao and you are caught in
produces bets in behalf of his/her principal for any illegal possession of a ―tip sheet‖ of masiao, that is a
numbers game who is usually in possession of gambling gambling paraphernalia. You will be charged as a
paraphernalia. BETTOR, and the tip sheet is prima facie evidence
h) Coordinator, Controller or Supervisor ("Encargado" or of betting. You will not be liable for possession of
variants thereof). - Any person who exercises control and gambling paraphernalia.
supervision over the collector or agent. Ex: If you are an usher and caught with tally sheets,
i) Maintainer, Manager or Operator. - Any person who the tally sheet shall be used as prima facie evidence
maintains, manages or operates any illegal number game in of your being an usher. You will not be charged
a specific area from whom the coordinator, controller or with possession of gambling paraphernalia.
supervisor, and collector or agent take orders. Ex: If you are a coordinator and you are holding
j) Financiers or Capitalist. - Any person who finances the many tally sheets, that is prima facie evidence of
operations of any illegal numbers game. being a coordinator.
k) Protector or Coddler. - Any person who lends or provides So, in the examples above, that is not a crime but
protection, or receives benefits in any manner in the PRIMA FACIE EVIDENCE OF THE OFFENSE.
operation of any illegal numbers game. Thus possession of gambling paraphernalia could
either be a crime or prima facie evidence. If
Sec. 3.Punishable Acts. - Any person who participates in any numbers game, that is prima facie evidence. If
illegal numbers game shall suffer the following penalties: not, thats a crime by itself under Sec 1, par(d) of
This is the most important part! RA 1602.
a) The penalty of imprisonment from thirty (30) days to
ninety (90) days, if such person acts as a bettor; Sec. 5.Liability of Government Employees and/or Public
b) The penalty of imprisonment from six (6) years and one Officials.–
(1) day to eight (8) years, if such person acts as a personnel a) If the collector, agent, coordinator, controller, supervisor,
or staff of an illegal numbers game operation; maintainer, manager, operator, financier or capitalist of any
The same penalty shall likewise be imposed to any person who illegal numbers game is a government employee and/or public
allows his vehicle, house, building or land to be used in the official, whether elected or appointed shall suffer the penalty
operation of the illegal numbers games. of twelve (12) years and one (1) day to twenty (20) years and a
c) The penalty of imprisonment from eight (8) years and one fine ranging from Three million pesos (P3,000,000.00) to Five
(1) day to ten (10) years, if such person acts as a collector or million pesos (P5,000,000.00) and perpetual absolute
agent; disqualification from public office.
d) The penalty of imprisonment from ten (10) years and one In addition to the penalty provided in the immediately
(1) day to twelve (12) years, if such person acts as a preceding section, the accessory penalty of perpetual
coordinator, controller or supervisor; disqualification from public office shall be imposed upon any
e) The penalty of imprisonment from twelve (12) years and local government official who, having knowledge of the
one (1) day to ten (10) fourteen (14) years, if such person acts existence of the operation of any illegal numbers game in
as a maintainer, manager or operator; and his/her jurisdiction, fails to abate or to take action, or tolerates
f) The penalty of imprisonment from fourteen (14) years and the same in connection therewith.
one (1) day to sixteen (16) years, if such person acts as a b) In the case of failure to apprehend perpetrators of any illegal
financier or capitalist; numbers game, any law enforcer shall suffer an administrative
Financier or capitalist receives the money and gives penalty of suspension or dismissal, as the case may be, to be
out the money imposed by the appropriate authority.
g) The penalty of imprisonment from sixteen (16) years and
one (1) day to twenty (20) years, if such person acts as Sec. 6.Liability of Parents/Guardians. - The penalty of
protector or coddler. imprisonment from six (6) months and one (1) day to one (1)
year or fine ranging from One hundred thousand pesos
(P100,000.00) to Four hundred thousand pesos (P400,000.00) The proceeds shall be confiscated in favor of the
shall be imposed upon any parent, guardian or person government.
exercising moral authority or ascendancy over a minor, ward
or incapacitated person, and not otherwise falling under any of Sec. 10. Witness Protection. - Any person who provides
the foregoing subsections, who induces or causes such minor, material information, whether testimonial or documentary,
ward or incapacitated person to commit any of the offenses necessary for the investigation or prosecution of individuals
punishable in this Act. Upon conviction, the parent, guardian committing any of the offenses under Sections 3, 4, 5 and 6
or person exercising moral authority or ascendancy over the herein shall be placed under the Witness Protection Program
minor, ward or incapacitated person shall be deprived of pursuant to Republic Act. No. 6981.
his/her authority over such person in addition to the penalty Sec. 11.Informer's Reward. - Any person who, having
imposed. knowledge or information of any offense committed under this
Act and who shall disclose the same which may lead to the
Sec. 7.Recidivism. - The penalty next higher in degree as arrest and final conviction of the offender, may be rewarded a
provided for under Section 3 hereof shall be imposed upon a certain percentage of the cash money or articles of value
recidivist who commits any of the offenses punishable in this confiscated or forfeited in favor of the government, which shall
Act. be determined through a policy guideline promulgated by the
Department of Justice (DOJ) in coordination with the
Sec. 8.Immunity from Prosecution. - Any person who serves as Department of Interior and Local Government (DILG) and the
a witness for the government or provides evidence in a National Police Commission (NAPOLCOM).
criminal case involving any violation of this Act, or who
voluntarily or by virtue of a subpoena testificandum or Republic Act No. 9372 March 6, 2007
ducestecum, produces, identifies, or gives testimony shall be AN ACT TO SECURE THE STATE AND PROTECT OUR
immune from any criminal prosecution, subject to the PEOPLE FROM TERRORISM aka THE HUMAN SECURITY
compliance with the provisions of Presidential Decree No. ACT OF 2007
1732, otherwise known as Decree Providing Immunity from this law was enacted as a result of UN SECURITY
Criminal Prosecution to Government Witnesses and the COUNCIL RESOLUTION NUMBER 1373. This
pertinent provisions of the Rules of Court. resolution enjoins members of the UN to enact an
So here, one is a "State witness" Anti- Terrorism Act as an aftermath of the 9/11
bombing of the Twin Towers
Sec. 9.Prosecution, Judgment and Forfeiture of Property. - Any
person may be charged with or convicted of the offenses SEC. 3. Terrorism.- Any person who commits an act
covered by this Act without prejudice to the prosecution of any punishable under any of the following provisions of the
act or acts penalized under the Revised Penal Code or existing Revised Penal Code:
laws. a. Article 122 (Piracy in General and Mutiny in the High Seas
So this law is a predicate crime of AMLA. If you are a or in the Philippine Waters);
financier or capitalist of illegal gambling, and b. Article 134 (Rebellion or Insurrection);
deposited in bank to appear as if it was from a lawful c. Article 134-a (Coup d' Etat), including acts committed by
source, you can be charged with AMLA private persons;
d. Article 248 (Murder);
During the pendency of the case, no property or income used e. Article 267 (Kidnapping and Serious Illegal Detention);
or derived therefrom which may be confiscated and forfeited f. Article 324 (Crimes Involving Destruction), or under - this
shall be disposed, alienated or transferred and the same shall has been repealed by Arson law.
be in custodialegis and no bond shall be admitted for the 1. Presidential Decree No. 1613 (The Law on Arson);
release of the same. 2. Republic Act No. 6969 (Toxic Substances and Hazardous
and Nuclear Waste Control Act of 1990);
The trial prosecutors shall avail of provisional remedies 3. Republic Act No. 5207, (Atomic Energy Regulatory and
provided for under the Revised Rules on Criminal Procedure. Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
Upon conviction, all proceeds, gambling paraphernalia and 5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway
other instruments of the crime including any real or personal Robbery Law of 1974); and,
property used in any illegal numbers game operation shall be 6. Presidential Decree No. 1866, as amended (Decree Codifying
confiscated and forfeited in favor of the State. All assets and the Laws on Illegal and Unlawful Possession, Manufacture,
properties of the accused either owned or held by him/her in Dealing in, Acquisition or Disposition of Firearms,
his/her name or in the name of another person found to be Ammunitions or Explosives) as amended by 10591 thereby
manifestly out of proportion to his/her lawful income shall be sowing and creating a condition of widespread and
prima facie presumed to be proceeds of the offense and shall extraordinary fear and panic among the populace, in order to
likewise be confiscated and forfeited in favor of the State. coerce the government to give in to an unlawful demand
shall be guilty of the crime of terrorism and shall suffer the
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CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
penalty of forty (40) years of imprisonment, without the commit terrorism, and without having participated
benefit of parole as provided for under Act No. 4103, therein, either as principal or accomplice under
otherwise known as the Indeterminate Sentence Law, as Articles 17 and 18 of the RPC, takes part subsequent
amended. to its commission in any of the following manner:
(a) by profiting himself or assisting the offender
Elements of terrorism
to profit by the effects of the crime;
1. Offender commits any of the following crimes above!
(b) by concealing or destroying the body of the
2. Thereby sowing and creating a condition of
crime, or the effects, or instruments thereof,
widespread and extraordinary fear and panic among
in order to prevent its discovery;
the populace
(c) by harboring, concealing, or assisting in the
3. In order to coerce the government to give in to an
escape of the principal or conspirator of the
unlawful demand. (This is the purpose of the law)
crime
A. First element: ―Committed by any person who committed – Shall suffer the penalty of ten (10) years and one day
to twelve (12) years of imprisonment.
any of the predicate crimes‖
– The penalties prescribed for accessories shall not be
B. Second element: ―Widespread and extraordinary fear and
imposed upon those who are such with respect to
panic among the populace‖
their spouses, ascendants, descendants, legitimate,
– This requires an interpretation by the SC natural, and adopted brothers and sisters, or relatives
by affinity within the same degrees, with the single
– The SC sustained the constitutionality of this law
exception of accessories falling within the provisions
(Southern Hemisphere Engagement Network Inc. vs Anti-
of subparagraph (a).
Terrorism Council, et al., GR 178552, October 5, 2010)
C. Third element: ―In order to coerce the government to give Surveillance of Suspects and Interception and Recording of
in to an unlawful demand‖ Communications
– Example: A man staged a hostage taking in a school – A police or law enforcement official and the members
bus and demanded from the government to give the of his team may listen to, intercept and record any
children free education. Not unlawful demand. Not a communication, message, conversation, discussion, or
violation of this law. spoken or written words between members of a
judicially declared and outlawed terrorist
Conspiracy to Commit Terrorism organization, association, or group of persons or of
any person charged with or suspected of the crime of
– Persons who conspire to commit the crime of terrorism or conspiracy to commit terrorism,
terrorism notwithstanding the provisions of the Anti-Wire
– Shall suffer the penalty of forty (40) years of Tapping Law to the contrary.
imprisonment. – Two consents necessary:
– There is conspiracy when two or more persons come 1. Authorized in writing by the Anti-Terrorism
to an agreement concerning the commission of the
Council to file such ex parte application.
crime of terrorism as defined under this law and
decide to commit the same. 2. Upon a written order of the Court of
Appeals (CA)
Accomplice
– Upon examination under oath or affirmation of the
– Any person who, not being a principal under Article applicant and the witnesses he may produce to
17 of the RPC or a conspirator, cooperates in the establish:
execution of either the crime of terrorism or
(a) that there is probable cause to believe based
conspiracy to commit terrorism by previous or
on personal knowledge of facts or
simultaneous acts
circumstances that the said crime of
– Shall suffer the penalty of from seventeen (17) years, terrorism or conspiracy to commit terrorism
four months one day to twenty (20) years of has been committed, or is being committed,
imprisonment. or is about to be committed;
(b) that there is probable cause to believe based
Accessory on personal knowledge of facts or
circumstances that evidence, which is
– Any person who, having knowledge of the essential to the conviction of any charged or
commission of the crime of terrorism or conspiracy to suspected person for, or to the solution or
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prevention of, any such crimes, will be Court of Appeals, within forty-eight (48) hours after
obtained; and, the expiration of period fixed in the order.
(c) that there is no other effective means readily
– Together submitted is the join affidavit of the law
available for acquiring such evidence
enforcers who conducted the wire tapping.
Classification and Contents of the Order of the Court
Contents of Joint Affidavit
– The written order granted by the authorizing division
– The joint affidavit of the police or of the law
of the CA as well as its order and the written
enforcement official and the individual members of
authorizations of the Anti-Terrorism Council shall be
his team shall state:
deemed and are hereby declared as classified
information (a) the number of tapes, discs, and recordings
that have been made;
– The written order of the authorizing division of the
(b) the dates and times covered by each of such
CA shall specify the following:
tapes, discs, and recordings;
(a) the identity of the charged or suspected (c) the number of tapes, discs, and recordings,
person whose communication is being as well as the number of excerpts and
tapped; summaries thereof and the number of
(b) the identity of the law enforce/s who is written notes and memoranda made in
going to wiretap connection therewith; and
(c) the offense or offenses committed, or being (d) the date of the original written authorization
committed, or sought to be prevented; andn granted by the Anti-Terrorism Council to the
(d) the length of time within which the applicant to file the ex parte
authorization shall be used or carried out
– The joint affidavit shall also certify under oath that no
duplicates or copies of the whole or any part of any of
Effective Period of Judicial Authorization
such tapes, discs, and recordings, and that no
– Shall not exceed thirty (30) days from the expiration duplicates or copies of the whole or any part of any of
of the original period such excerpts, summaries, written notes, and
memoranda, have been made
– Can be extended for another non-extendible thirty
(30) days. The request for extension must be in – If made, that all such duplicates and copies shall be
writing, filed by the same official who filed the deposited also with the authorizing division of the
original request; next in rank if the former has died CA.
– In other words, the entire period, including the
Disposition of Deposited Material
extension, should not exceed sixty (60) days
– The sealed envelope or sealed package and the
If no case is filed within the 30-day period contents thereof, which are deposited with the
authorizing division of the CA, shall be deemed and
– If no case is filed within the thirty (30)-day period, the
are hereby declared classified information
applicant police or law enforcement official shall – Meaning, they cannot be accessed by anybody unless
immediately notify the person subject of the
authorized by written order of the authorizing
surveillance, interception and recording of the
division of the CA, upon a Motion to be filed by the
termination of the said surveillance, interception and
DOJ with prior permission from the Anti-Terrorism
recording.
Council.
– The penalty of ten (10) years and one day to twelve
(12) years of imprisonment shall be imposed upon the Application to Open Deposited Sealed Envelope or Sealed
applicant police or law enforcement official who fails Package
to notify the person subject of the surveillance,
– The application shall state the purpose of the opening
monitoring, interception and recording as specified
of the sealed envelope or package
above.
Evidentiary Value of Deposited Materials
Custody of Intercepted and Recorded Communications
– If there is wiretapping without court order, such
– All tapes, discs, and recordings made pursuant to the
wiretapped conversation shall be inadmissible in
authorization of the authorizing division of the Court
evidence.
of Appeals shall be submitted to the issuing court, the
Penalty for Unauthorized or Malicious Interceptions and/or – Immediately after taking custody of a person charged
Recordings with or suspected of the crime of terrorism or
conspiracy to commit terrorism, the police or law
– Shall suffer the penalty of ten (10) years and one day
enforcement personnel shall notify in writing the
to twelve (12) years of imprisonment.
judge of the court nearest the place of apprehension
or arrest.
***Judicial Declaration for a Group to be a Terrorist Group
– Provided ,That where the arrest is made during
– The DOJ may file before the RTC for a Petition for the
Saturdays, Sundays, holidays or after office hours, the
judicial declaration of a certain group as a terrorist
written notice shall be served at the residence of the
group.
judge nearest the place where the accused was
arrested.
***Period of Detention Without Judicial Warrant of Arrest
– The penalty of ten (10) years and one day to twelve
– The provisions of Article 125 of the Revised Penal
(12) years of imprisonment shall be imposed upon the
Code to the contrary notwithstanding, any police or
police or law enforcement personnel who fails to
law enforcement personnel, who, having been duly
notify and judge.
authorized in writing by the Anti-Terrorism Council
has taken custody of a person charged with or
SEC. 19.Period of Detention in the Event of an Actual or
suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism shall, without Imminent Terrorist Attack.
incurring any criminal liability for delay in the
delivery of detained persons to the proper judicial - In the event of an actual or imminent terrorist attack,
authorities, deliver said charged or suspected person suspects may not be detained for more than three
to the proper judicial authority within a period of days without the written approval of a municipal,
three days counted from the moment the said city, provincial or regional official of a Human Rights
charged or suspected person has been apprehended Commission or judge of the municipal, regional trial
or arrested, detained, and taken into custody by the
court, the Sandiganbayan or a justice of the Court of
said police, or law enforcement personnel.
Appeals nearest the place of the arrest.
– Provided, That the arrest of those suspected of the The 3 day detention can beextended
crime of terrorism or conspiracy to commit terrorism provided there is a written approvalof a
must result from the surveillance under Section 7 and
municipal, city, provincial or regional official
examination of bank deposits under Section 27 of this
Act. of a Human Rights Commission or judge of
the municipal, regional trial court, the
– The police or law enforcement personnel concerned
Sandiganbayan or a justice of the Court of
shall, before detaining the person suspected of the
Appeals nearest the place of the arrest.
crime of terrorism, present him or her before any
judge at the latter's residence or office nearest the - If the arrest is made during Saturdays, Sundays,
place where the arrest took place at any time of the holidays or after office hours, the arresting police or
day or night. law enforcement personnel shall bring the person
– It shall be the duty of the judge, among other things, thus arrested to the residence of any of the officials
to ascertain the identity of the police or law mentioned above that is nearest the place where the
enforcement personnel and the person or persons accused was arrested. The approval in writing of any
they have arrested, to inquire of them the reasons of the said officials shall be secured by the police or
why they have arrested the person and determine by law enforcement personnel concerned within five
questioning and personal observation whether or not days after the date of the detention of the persons
the suspect has been subjected to any physical, moral
concerned: Provided, however, That within three
or psychological torture by whom and why. The
judge shall then submit a written report of what days after the detention the suspects, whose
he/she had observed when the subject was brought connection with the terror attack or threat is not
before him to the proper court that has jurisdiction established, shall be released immediately.
over the case of the person thus arrested. - Section 19 provides for the extension of the
– The judge shall forthwith submit his/her report reglementary period.
within three calendar days from the time the suspect
was brought to his/her residence or office. SEC. 20.Penalty for Failure to Deliver Suspect to the Proper
Judicial Authority within Three Days.
- The penalty of ten (10) years and one day to twelve is granted the same, the court, upon application by
(12) years of imprisonment shall be imposed upon the prosecutor, shall limit the right of travel of the
any police or law enforcement personnel who has accused to within the municipality or city where he
apprehended or arrested, detained and taken custody resides or where the case is pending, in the interest of
of a person charged with or suspected of the crime of national security and public safety.
terrorism or conspiracy to commit terrorism and fails - Travel outside of said municipality or city, without
to deliver such charged or suspected person to the the authorization of the court, shall be deemed a
proper judicial authority within the period of three violation of the terms and conditions of his bail,
days. which shall then be forfeited .
- He shall not be punished under the RPC but under - So he can be granted bail but with limitation on the
this law. right to travel which can be limited to the city or
municipality where he resides.
SEC. 21.Rights of a Person under Custodial Detention. - He/she may also be placed under house arrest by
order of the court at his or her usual place of
- Miranda Doctrine
residence.
- While under house arrest, he or she may not use
SEC. 22.Penalty for Violation of the Rights of a Detainee.
telephones, cellphones, e-mails, computers, the
- The penalty of ten (10) years and one day to twelve internet or other means of communications with
(12) years of imprisonment. people outside the residence until otherwise ordered
- Unless the police or law enforcement personnel who by the court.
violated the rights of a detainee or detainees as stated - The restrictions abovementioned shall be terminated
above is duly identified, the same penalty shall be upon the acquittal of the accused or of the dismissal
imposed on the police officer or hear or leader of the of the case filed against him or earlier upon the
law enforcement unit having custody of the detainee discretion of the court on motion of the prosecutor or
at the time the violation was done. of the accused.
Sec 23 and 24 – Read Only SEC. 27. Judicial Authorization Required to Examine Bank
Deposits, Accounts, and Records.
SEC. 25.Penalty for Threat, Intimidation, Coercion, or
Torture in the Investigation and Interrogation of a Detained - The procedure here is similar to surveillance. There
Person. must be a petition filed with the Court of Appeals
with prior permission from Anti-terrorism Council.
- The penalty of twelve (12) years and one day to - The provisions of Republic Act No. 1405 as amended,
twenty (20) years of imprisonment. to the contrary notwithstanding, the justices of the
- When death or serious permanent disability of said Court of Appeals designated as a special court to
detained person occurs as a consequence of the use of handle anti-terrorism cases after satisfying themselves
such threat, intimidation, or coercion, or as a of the existence of probable cause in a hearing called
consequence of the infliction on him of such physical for that purpose that:
pain or torment, or as a consequence of the infliction (1) a person charged with or suspected of the
on him of such mental, moral, or psychological crime of terrorism or, conspiracy to commit
pressure, the penalty shall be twelve (12) years and terrorism,
one day to twenty (20) years of imprisonment. (2) of a judicially declared and outlawed
terrorist organization, association, or group
SEC. 26.Restriction on Travel.
of persons; and
(3) of a member of such judicially declared
- Penalty in terrorism – 40 years, equivalent to life
and outlawed organization, association, or
sentence, not entitled to bail.
group of persons, may authorize in writing
- In cases where evidence of guilt is not strong
any police or law enforcement officer and
(meaning the person is allowed to put up bail)and
the members of his/her team duly
the person charged with the crime of terrorism or
authorized in writing by the anti-terrorism
conspiracy to commit terrorism is entitled to bail and
council to:
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o (a) examine, or cause the created in Section 53 of this Act to file such
examination of, the deposits, ex parte application, and upon examination
placements, trust accounts, assets under oath or affirmation of the applicant
and records in a bank or financial and, the witnesses he may produce to
institution; and establish the facts that will justify the need
o (b) gather or cause the gathering of and urgency of examining and freezing the
any relevant information about bank deposits, placements, trust accounts,
such deposits, placements, trust assets, and records:
accounts, assets, and records from o (1) of the person charged with or
a bank or financial institution. suspected of the crime of terrorism
- The bank or financial institution concerned, shall not or conspiracy to commit terrorism;
refuse to allow such examination or to provide the o (2) of a judicially declared and
desired information, when so, ordered by and served outlawed terrorist organization,
with the written order of the Court of Appeals. association or group of persons; or
- Here, there should be a petition filed with the Court o (3) of any member of such
of Appeals and there must be a prior authorization organization, association, or group
from the Anti-Terrorism Council. of persons.
- Recall AMLA. The Anti-Money Laundering Council - The authority to file the petition must be in writing
can file the petition under the AMLA. given by the Anti-Terrorism Council NOT AMLC.
- NOTE, regarding the bank accounts of the terrorists,
the police enforcers can examine but with prior SEC. 29.Classification and Contents of the Court Order
authority from the Anti-Terrorism Council not from Authorizing the Examination of Bank Deposits, Accounts,
the Anti-Money Laundering Council, filed with the and Records.
Court of Appeals.
- The order shall be classified as confidential.
- Another way of examining the bank accounts of
- The written order granted by the authorizing division
terrorist groups is for the AMLC to file petition
of the Court of Appeals as well as its order, if any, to
pursuant to provisions of AMLA.
extend or renew the same, the original ex parte
SEC. 28.Application to Examine Bank Deposits, Accounts, application of the applicant, including his ex parte
and Records. application to extend or renew, if any, and the written
authorizations of the Anti-Terrorism Council, shall be
- The written order of the Court of Appeals authorizing deemed and are hereby declared as classified
the examination of bank deposits, placements, trust information: Provided, That the person whose bank
accounts, assets, and records: deposits, placements, trust accounts, assets, and
(1) of a person charged with or suspected of records have been examined, frozen, sequestered and
the crime of terrorism or conspiracy to seized by law enforcement authorities has the right to
commit terrorism; be informed of the acts done by the law enforcement
(2) of any judicially declared and outlawed authorities in the premises or to challenge, if he or she
terrorist organization, association, or group intends to do so, the legality of the interference. The
of persons, or written order of the authorizing division of the Court
(3) of any member of such organization, of Appeals designated to handle cases involving
association, or group of persons in a bank or terrorism shall specify:
financial institution, and the gathering of the identify of the said:
any relevant information about the same o (1) person charged with or
from said bank or financial institution, shall suspected of the crime of terrorism
only be granted by the authorizing division or conspiracy to commit terrorism;
of the Court of Appeals upon an ex parte o (2) judicially declared and outlawed
application to that effect of a police or of a terrorist organization, association,
law enforcement official who has been duly or group of persons; and
authorized in writing to file such ex parte o (3) member of such judicially
application by the Anti-Terrorism Council declared and outlawed
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persons, which have been secured in violation of the the crime of terrorism or the crime of
provisions of this Act, shall absolutely not be conspiracy to commit terrorism;
admissible and usable as evidence against anybody in (2) to a judicially declared and outlawed
any judicial, quasi-judicial, legislative, or organization, association, or group of
administrative investigation, inquiry, proceeding, or persons; or
hearing. (3) to a member of such organization,
association, or group of persons shall be
SEC. 36.Penalty for Unauthorized or Malicious Examination seized, sequestered, and frozen in order to
of a Bank or a Financial Institution.
prevent their use, transfer, or conveyance for
purposes that are inimical to the safety and
- The penalty is ten (10) years and one day to twelve
security of the people or injurious to the
(12) years of imprisonment.
interest of the State.
SEC. 37.Penalty of Bank Officials and Employees Defying a - The accused or a person suspected of may withdraw
Court Authorization. such sums as may be reasonably needed by the
monthly needs of his family including the services of
- An employee, official, or a member of the board of his or her counsel and his or her family's medical
directors of a bank or financial institution, who needs upon approval of the court. He or she may also
refuses to allow the examination of the deposits, use any of his property that is under seizure or
placements, trust accounts, assets, and records of: (1) sequestration or frozen because of his/her indictment
a person charged with or suspected of the crime of as a terrorist upon permission of the court for any
terrorism or the crime of conspiracy to commit legitimate reason.
terrorism; (2) a judicially declared and outlawed - Example, the bank accounts frozen, the person
organization, association, or group of persons; or (3) a suspected to be a terrorist, can file a motion in court
member of such judicially declared and outlawed with withdraw certain amount for the needs of his
organization, association, or group of persons in said family including payment of the services of his
bank or financial institution, when duly served with counsel.
the written order of the authorizing division of the
Court of Appeals, shall be guilty of an offense and SEC. 40. Nature of Seized. Sequestered and Frozen Bank
Deposits, Placements, Trust Accounts, Assets and Records.
shall suffer the penalty of ten (10) years and one day
to twelve (12) years of imprisonment.
- The seized, sequestered and frozen bank deposits,
SEC. 38.Penalty for False or Untruthful Statement or placements, trust accounts, assets and records
Misrepresentation of Material Fact in Joint Affidavits. belonging to a person suspected of or charged with
the crime of terrorism or conspiracy to commit
- Any false or untruthful statement or terrorism shall be deemed as property held in trust by
misrepresentation of material fact in the joint the bank or financial institution for such person and
affidavits required shall constitute a criminal offense the government during the pendency of the
and the affiants shall suffer individually the penalty investigation of the person suspected of or during the
of ten (10) years and one day to twelve (12) years of pendency of the trial of the person charged with any
imprisonment. of the said crimes, as the case may be and their use or
disposition while the case is pending shall be subject
SEC. 39.Seizure and Sequestration. to the approval of the court before which the case or
cases are pending.
- The deposits and their outstanding balances,
placements, trust accounts, assets, and records in any SEC. 41.Disposition of the Seized, Sequestered and Frozen
bank or financial institution, moneys, businesses, Bank Deposits, Placements, Trust Accounts, Assets and
transportation and communication equipment, Record. (important provision)
supplies and other implements, and property of
whatever kind and nature belonging: - If the person suspected of or charged with the crime
(1) to any person suspected of or charged of terrorism or conspiracy to commit terrorism is
before a competent Regional Trial Court for found, after his investigation, to be innocent by the
investigating body, or is acquitted, after his witnesses testifying under this Act shall be governed
arraignment or his case is dismissed before his by Sections 17 and 18 of Rule 119 of the Rules of
arraignment by a competent court, the seizure, Court: Provided, however, That said witnesses shall
sequestration and freezing of his bank deposits, be entitled to benefits granted to witnesses under said
placements, trust accounts, assets and records shall Republic Act No.6981.
forthwith be deemed lifted by the investigating
body or by the competent court, as the case may be, SEC. 46.Penalty for Unauthorized Revelation of Classified
and his bank deposits, placements, trust accounts, Materials.
assets and records shall be deemed released from
such seizure, sequestration and freezing, and shall - The penalty of ten (10) years and one day to twelve
be restored to him without any delay by the bank or (12) years of imprisonment shall be imposed upon
financial institution concerned without any further any person, police or law enforcement agent, judicial
action on his part. The filing of any appeal on motion officer or civil servant who, not being authorized by
for reconsideration shall not stay the release of said the Court of Appeals to do so, reveals in any manner
funds from seizure, sequestration and freezing. or form any classified information under this Act.
- If the person charged with the crime of terrorism or
SEC. 48.Continuous Trial.
conspiracy to commit terrorism is convicted by a
final judgment of a competent trial court, his seized,
- in cases of terrorism or conspiracy to commit
sequestered and frozen bank deposits, placements,
terrorism, the judge shall set the continuous trial on a
trust accounts, assets and records shall be
daily basis from Monday to Friday or other short-
automatically forfeited in favor of the government.
term trial calendar so as to ensure speedy trial.
- Upon his or her acquittal or the dismissal of the
charges against him or her, the amount of Five SEC. 49. Prosecution Under This Act Shall be a Bar to
hundred thousand pesos (P500.000.00) a day for the Another Prosecution under the Revised Penal Code or any
period in which his properties, assets or funds were Special Penal Laws. (Important Provision)
seized shall be paid to him on the concept of
liquidated damages. - When a person has been prosecuted under a
- The amount shall be taken from the appropriations provision of this Act, upon a valid complaint or
of the police or law enforcement agency that caused information or other formal charge sufficient in form
the filing of the enumerated charges against him/her. and substance to sustain a conviction and after the
accused had pleaded to the charge, the acquittal of the
SEC. 44.Infidelity in the Custody of Detained Persons. accused or the dismissal of the case shall be a bar to
another prosecution for any offense or felony which is
- Any public officer who has direct custody of a
necessarily included in the offense charged under this
detained person or under the provisions of this Act
Act.
and who by his deliberate act, misconduct, or
inexcusable negligence causes or allows the escape of SEC. 50.Damages for Unproven Charge of Terrorism.
such detained person shall be guilty of an offense and (Important Provision)
shall suffer the penalty of: (a) twelve (12) years and
one day to twenty (20) years of imprisonment, if the - Upon acquittal, any person who is accused of
detained person has already been convicted and terrorism shall be entitled to the payment of
sentenced in a final judgment of a competent court; damages in the amount of Five hundred thousand
and (b) six years and one day to twelve (12) years of pesos (P500,000.00) for every day that he or she has
imprisonment, if the detained person has not been been detained or deprived of liberty or arrested
convicted and sentenced in a final judgment of a without a warrant as a result of such an
competent court. accusation.The amount of damages shall be
automatically charged against the appropriations of
SEC. 45.Immunity and Protection of Government Witnesses. the police agency or the Anti-Terrorism Council that
brought or sanctioned the filing of the charges against
- The provisions of Republic Act No. 6981 (Witness the accused. It shall also be released within fifteen (15)
Protection, Security and Benefits Act) to the contrary days from the date of the acquittal of the accused. The
notwithstanding, the immunity of government
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award of damages mentioned above shall be without against terrorists and acts of terrorism in the country;
prejudice to the right of the acquitted accused to file 2. Coordinate all national efforts to suppress and eradicate acts
criminal or administrative charges against those of terrorism in the country and mobilize the entire nation
against terrorism prescribed in this Act;
responsible for charging him with the case of
3. Direct the speedy investigation and prosecution of all
terrorism.
persons accused or detained for the crime of terrorism or
- Any officer, employee, personnel, or person who conspiracy to commit terrorism and other offenses punishable
delays the release or refuses to release the amounts under this Act, and monitor the progress of their cases;
awarded to the individual acquitted of the crime of 4. Establish and maintain comprehensive data-base
terrorism as directed in the paragraph immediately information system on terrorism, terrorist activities, and
precedingshall suffer the penalty of six months of counter-terrorism operations;
5. Freeze the funds property, bank deposits, placements, trust
imprisonment.
accounts, assets and records belonging to a person suspected
- If the deductions are less than the amounts due to the of or charged with the crime of terrorism or conspiracy to
detained persons, the amount needed to complete the commit terrorism, pursuant to Republic Act No. 9160,
compensation shall be taken from the current otherwise known as the Anti-Money Laundering Act of 2001,
appropriations for intelligence, emergency, social or as amended;
other funds of the Office of the President. 6. Grant monetary rewards and other incentives to informers
- In the event that the amount cannot be covered by the who give vital information leading to the apprehension, arrest,
detention, prosecution, and conviction of person or persons
current budget of the police or law enforcement
who are liable for the crime of terrorism or conspiracy to
agency concerned, the amount shall be automatically commit terrorism;
included in the appropriations of the said agency for 7. Establish and maintain coordination with and the
the coming year. cooperation and assistance of other nations in the struggle
against international terrorism; and
Sec. 51. Duty to Record and Report the Name and Address of 8. Request the Supreme Court to designate specific divisions of
the Informant. - The police or law enforcement officers to the Court of Appeals and Regional Trial Courts in Manila,
whom the name or a suspect in the crime of terrorism was first Cebu City and Cagayan de Oro City, as the case may be, to
revealed shall record the real name and the specific address of handle all cases involving the crime of terrorism or conspiracy
the informant. to commit terrorism and all matters incident to said crimes.
The police or law enforcement officials concerned shall report The Secretary of Justice shall assign a team of prosecutors
the informant's name and address to their superior officer who from: (a) Luzon to handle terrorism cases filed in the Regional
shall transmit the information to the Congressional Oversight Trial Court in Manila; (b) from the Visayas to handle cases
Committee or to the proper court within five days after the filed in Cebu City; and (c) from Mindanao to handle cases filed
suspect was placed under arrest or his properties were in Cagayan de Oro City.
sequestered, seized or frozen.
The name and address of the informant shall be considered Sec. 55. Role of the Commission on Human Rights. - The
confidential and shall not be unnecessarily revealed until after Commission on Human Rights shall give the highest priority
the proceedings against the suspect shall have been to the investigation and prosecution of violations of civil and
terminated. political rights of persons in relation to the implementation of
this Act; and for this purpose, the Commission shall have the
Sec. 52. Applicability of the Revised Penal Code. - The concurrent jurisdiction to prosecute public officials, law
provisions of Book I of the Revised Penal Code shall be enforcers, and other persons who may have violated the civil
applicable to this Act. and political rights of persons suspected of, or detained for the
- mitigating and aggravating circumstances apply crime of terrorism or conspiracy to commit terrorism.
Sec. 53. Anti-Terrorism Council Sec. 57. Ban on Extraordinary Rendition. - No person
suspected or convicted of the crime of terrorism shall be
The members of the Council are: (1) the Executive Secretary, subjected to extraordinary rendition to any country unless his
who shall be its Chairperson; (2) the Secretary of Justice, who or her testimony is needed for terrorist related police
shall be its Vice Chairperson; and (3) the Secretary of Foreign investigations or judicial trials in the said country and unless
Affairs; (4) the Secretary of National Defense; (5) the Secretary his or her human rights, including the right against torture,
of the Interior and Local Government; (6) the Secretary of and right to counsel, are officially assured by the requesting
Finance; and (7) the National Security Advisor, as its other country and transmitted accordingly and approved by the
members. Department of Justice.
Sec. 54. Functions of the Council. –
Sec. 58. Extra-Territorial Application of this Act. - Subject to
1. Formulate and adopt plans, programs and counter-measures
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the provision of an existing treaty of which the Philippines is a circulation and the announcements over local radio and
signatory and to any contrary provision of any law of television networks shall be done in the dominant language of
preferential application, the provisions of this Act shall apply: the community. After the publication required above shall
(1) to individual persons who commit any of the have been done, the Act shall take effect two months after the
crimes defined and punished in this Act within the terrestrial elections are held in May 2007. Thereafter, the provisions of
domain, interior waters, maritime zone, and airspace of the this Act shall be automatically suspended one month before
Philippines; and two months as after the holding of any election.
(2) to individual persons who, although physically - suspended before election
outside the territorial limits of the Philippines, commit, - no jurisprudence yet
conspire or plot to commit any of the crimes defined and - Usually they are charged with murder or homicide. It
punished in this Act inside the territorial limits of the is hard to prove terrorism.
Philippines; - In Zambuanga, they were terrorists but not charged
(3) to individual persons who, although physically with terrorism, they were charged with multiple
outside the territorial limits of the Philippines, commit any of murder
the said crimes on board Philippine ship or Philippine airship; o Not charged with rebellion as well, mere
(4) to individual persons who commit any of said participants are charged with a lower
crimes within any embassy, consulate, or diplomatic premises penalty.
belonging to or occupied by the Philippine government in an
official capacity; PRESIDENTIAL DECREE NO. 533
(5) to individual persons who, although physically
outside the territorial limits of the Philippines, commit said THE ANTI-CATTLE RUSTLING LAW OF 1974
crimes against Philippine citizens or persons of Philippines
descent, where their citizenship or ethnicity was a factor in the SECTION 2. Definition of Terms. — The following terms shall mean
commission of the crime; and and be understood to be as herein defined:
- The Filipino victims are outside the country but are
killed or committed with terrorism by reason of being a. Large cattle as herein used shall include the cow, carabao,
a Filipino horse, mule, ass, or other domesticated member of the bovine
- Persons of Philippine descent - persons who are no family.
longer Filipino but who have the blood of a Filipino - Cat does not belong to the bovine family. CRIME
and is attacked because of their dissent. COMMITTED: theft
- If one was a Filipino and then is already an American
citizen but in America he is attacked because of his
Filipino descent, the law still applies. b. Cattle rustling is the taking away by any means, method or
scheme, without the consent of the owner/raiser, of any of the
(6) to individual persons who, although physically above-mentioned animals whether or not for profit or gain, or
outside the territorial limits of the Philippines, commit said whether committed with or without violence against or
crimes directly against the Philippine government. intimidation of any person or force upon things. It includes
- we have learned that our penal laws are only effective the killing of large cattle, or taking its meat or hide without
within our territory but if the acts are committed the consent of the owner/raiser.
outside our territory, this law has extra-territorial
application.
―above-mentioned animals‖
Sec. 62. Special Effectivity Clause. - After the bill shall have
been signed into law by the President, the Act shall be - Members of the bovine family
published in three newspapers of national circulation; three
newspapers of local circulation, one each in llocos Norte,
Baguio City and Pampanga; three newspapers of local ―whether or not for profit or gain‖
circulation, one each in Cebu, lloilo and Tacloban; and three
newspapers of local circulation, one each in Cagayan de Oro, - The law is violated even if the offender took away or
Davao and General Santos city. killed the animal without any intent to gain
The title of the Act and its provisions defining the acts of EX1:If the offender would kill your dog because of
terrorism that are punished shall be aired everyday at
revenge – MALICIOUS MISCHIEF
primetime for seven days, morning, noon and night over three
national television and radio networks; three radio and
EX2: If the offender would take away dog because he has
television networks, one each in Cebu, Tacloban and lloilo; and
in five radio and television networks, one each in Lanao del intent to gain, he likes your dog – THEFT
Sur, Cagayan de Oro, Davao City, Cotabato City and
Zamboanga City. The publication in the newspapers of local
QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT
“Together we leap, together we will succeed.”
CRIMINAL LAW REVIEW (Book 1)
As discussed by Judge D
EX3: If the offender would kill your cow because of hatred (d) Dangerous drugs and other similar substances refer to drugs listed
or revenge – VIOLATION OF ANTI-CATTLE RUSLTING in the schedules annexed to the 1961 Single Convention on Narcotics
Drugs, as amended by the 1972 Protocol, and in the schedules
annexed to the 1971 Single Convention of Psychotropic Substances as
enumerated in its attachment which is an integral part of Republic
SECTION 7. Presumption of Cattle Rustling. — Every person Act No. 9165, otherwise known as the "Comprehensive Dangerous
having in his possession, control or custody of large cattle shall, upon Drugs Act of 2002" and those that the Board may reclassify, add to or
demand by competent authorities, exhibit the documents prescribed remove from the list of dangerous drugs.
in the preceding sections. Failure to exhibit the required documents
shall be prima facie evidence that the large cattle in his possession,
control or custody are the fruits of the crime of cattle rustling.
(e) Driving under the influence of alcohol refers to the act of operating
- Under this law, the owners are required to register the a motor vehicle while the driver's blood alcohol concentration level
cow or carabao with the municipal hall has, after being subjected to a breath analyzer test, reached the level of
intoxication, as established jointly by the Department of Health
(DOH), the National Police Commission (NAPOLCOM) and the
SECTION 8. Penal Provisions. — Any person convicted of cattle
Department of Transportation and Communications (DOTC).
rustling as herein defined shall, irrespective of the value of the large
cattle involved, be punished by prision mayor in its maximum period
- One might be drunk but no intoxicated
to reclusion temporal in its medium period if the offense is committed - Determined through the breath analyzer
without violence against or intimidation of persons or force upon
things. If the offense is committed with violence against or
intimidation of persons or force upon things, the penalty of (f) Driving under the influence of dangerous drugs and other similar
reclusion temporal in its maximum period to reclusion perpetua shall substances refers to the act of operating a motor vehicle while the
be imposed. If a person is seriously injured or killed as a result or driver, after being subjected to a confirmatory test as mandated under
on the occasion of the commission of cattle rustling, the penalty Republic Act No. 9165, is found to be positive for use of any
of reclusion perpetua to death shall be imposed. dangerous drug.
When the offender is a government official or employee, he - Use of the confirmatory and screening test
shall, in addition to the foregoing penalty, be disqualified from voting
or being voted upon in any election/referendum and from holding
any public office or employment. (g) Field sobriety tests refer to standardized tests to initially assess
and determine intoxication, such as the horizontal gaze nystagmus,
When the offender is an alien, he shall be deported immediately upon the walk-and-turn, the one-leg stand, and other similar tests as
the completion of the service of his sentence without further determined jointly by the DOH, the NAPOLCOM and the DOTC.
proceedings.
- Screening test
- In theft, the penalty depends upon the value of the - If one fails this test then he would be subjected to breath
property taken analyzer
- Here the value is disregarded for the imposition of
penalty
SECTION 4. Driver's Education. — Every applicant for a motor
REPUBLIC ACT NO. 10586 vehicle driver's license shall complete a course of instruction that
provides information on safe driving including, but not limited to, the
"Anti-Drunk and Drugged Driving Act of 2013" effects of the consumption of alcoholic beverages on the ability of a
person to operate a motor vehicle, the hazards of driving under the
SECTION 3. Definition of Terms. — For purposes of this Act: influence of alcohol, dangerous drugs and/or other similar substances,
and the penalties attached for violation thereof.
(b) Breath analyzer refers to the equipment which can determine the
blood alcohol concentration level of a person through testing of his For professional drivers, every applicant for a driver's license or those
breath. applying for renewal thereof shall undergo the driver's education
herein stated.
- To determine whether one is intoxicated or not
The driver's license written examination shall include questions
concerning the effects of alcohol and drug intoxication on the ability of the Metropolitan Manila Development Authority
a person to operate a motor vehicle and the legal and pecuniary (MMDA) and
consequences resulting from violation of the provisions of this Act. cities and municipalities, in order to enforce the
provisions of this Act.
***SECTION 5. Punishable Act. — It shall be unlawful for any
person to drive a motor vehicle while under the influence of alcohol, SEC. 12. Penalties.
dangerous drugs and/or other similar substances.
A driver found to have been driving a motor vehicle while
SECTION 6. Conduct of Field Sobriety, Chemical and Confirmatory under the influence of alcohol, dangerous drugs and/or other
Tests. — A law enforcement officer who has probable cause to believe similar substances shall be penalized as follows:
that a person is driving under the influence of alcohol, dangerous
drugs and/or other similar substances by apparent indications and (a) If the violation of Section 5 did not result in physical
manifestations, including overspeeding, weaving, lane straddling, injuries or homicide, the penalty of 3 months imprisonment,
sudden stops, swerving, poor coordination or the evident smell of and a fine ranging from 20,000.00 to 80,000.00 shall be
alcohol in a person's breath or signs of use of dangerous drugs and imposed;
other similar substances, shall conduct field sobriety tests.
- meaning the mere fact that you are drunk or drugged while
If the driver fails in the sobriety tests, it shall be the duty of the law driving is punishable.
enforcement officer to implement the mandatory determination of the
driver's blood alcohol concentration level through the use of a breath (b) If the violation of Section 5 resulted in physical injuries, the
analyzer or similar measuring instrument. penalty provided in Article 263 of the Revised Penal Code or
the penalty provided in the next preceding subparagraph,
If the law enforcement officer has probable cause to believe that a whichever is higher, and a fine ranging from Php100,000.00 to
Php200,000.00 shall be imposed;
person is driving under the influence of dangerous drugs and/or other
similar substances, it shall be the duty of the law enforcement officer
- this is without prejudice to the filing of a charge for a criminal
to bring the driver to the nearest police station to be subjected to a
case for a relative crime committed.
drug screening test and, if necessary, a drug confirmatory test as
mandated under Republic Act No. 9165.
(c) If the violation of Section 5 resulted in homicide, the
penalty provided in Article 249 of the Revised Penal Code and
Law enforcement officers and deputized local traffic enforcement
a fine ranging from Three hundred thousand pesos
officers shall be responsible in implementing this section.
(Php300,000.00) to Five hundred thousand pesos
(Php500,000.00) shall be imposed; and
SECTION 7. Mandatory Alcohol and Chemical Testing of Drivers
Involved in Motor Vehicular Accidents. — A driver of a motor vehicle
(d) The NONPROFESSIONAL DRIVER’S LICENSE of any
involved in a vehicular accident resulting in the loss of human life or
person found to have violated Section 5 of this Act shall also be
physical injuries shall be subjected to chemical tests, including a drug confiscated and suspended for a period of twelve (12) months
screening test and, if necessary, a drug confirmatory test as mandated for the first conviction and perpetually revoked for the second
under Republic Act No. 9165, to determine the presence and/or conviction.
concentration of alcohol, dangerous drugs and/or similar substances
in the bloodstream or body. The PROFESSIONAL DRIVER’S LICENSE of any person
found to have violated Section 5 of this Act shall also be
Q: What about if the driver refuses to undergo the tests? confiscated and perpetually revoked for the first conviction.
The perpetual revocation of a driver‘s license shall disqualify
the person from being granted any kind of driver‘s license
A: The driver of a motor vehicle who refuses to undergo
thereafter.
the mandatory the sobriety test shall be penalized by the
confiscation and automatic revocation of his driver‘s
license, in addition to the other penalties provided by law. The prosecution for any violation of this Act shall be without
prejudice to criminal prosecution for violation of the Revised
Penal Code, Republic Act No. 9165 and other special laws and
SEC. 10. Deputation.
existing local ordinances, whenever applicable.
This section shall principally apply to the owners and/or a. Using a mobile communications device to
operators of public utility vehicles and commercial vehicles write, send or read a text- based
such as communication or to make or receive calls,
and other similar acts; and
- delivery vans,
- cargo trucks, b. Using an electronic entertainment or
- container trucks, computing device to play games, watch
- school and company buses, movies, surf the internet, compose messages,
- hotel transports, read e- books, perform calculations, and
- cars or vans for rent, other similar acts.
- taxi cabs, and the like.
- This includes playing pokemon.
SEC. 15. Nationwide Random Terminal Inspection and Quick
Random Drug Tests. EXTENT OF COVERAGE
- The LTO shall conduct random terminal inspections - Not considered distracted driving if done using the
and quick random drug tests of public utility drivers. aid of a hands- free function or similar device such as,
The cost of such tests shall be defrayed by the LTO. but not limited to a speaker phone, earphones and
microphones or other similar devices which alow a
RA 10913 AN ACT DEFINING AND PENALIZING person to make and receive calls without having to
DISTRACTED DRIVING hold the mobile phone.
Passed on July 21, 2016
- Provided that the placement of the phone does not
interfere with the line of sight of the driver.
- This law (the bill) was left unsigned by President
Pinoy.
- This shall also apply to agricultural machineries such
as tractors and construction equipment such as
Definition of terms: graders, rollers, backhoes etc.