CRIMINAL LAW REVIEW | FINALS | INVICTUS

Can treason be complexed with common crimes?

No, because treason absorbs crimes committed in furtherance
thereof. (People v. Prieto)

TITLE ONE – CRIMES AGAINST NATIONAL Treason is essentially a political crime, thus, political offense
SECURITY AND THE LAW OF NATIONS doctrine is applied. When there is a political offense, all other
offenses committed in the furtherance of the political offense
Common element of crimes punished under Title One will acquire the political color of the political offense and
The crimes involve the intervention of foreign sovereign state. therefore, will be absorbed. It is a crime which can be
committed only during war and when we speak of war, there is
death and destruction of property. There is no such thing as
Crimes against national Crimes against law of
robbery with treason or vice versa or treason with rape or
security nations
murder. All common crimes, even common crimes under
Pertains to crimes where Pertains to crimes which special penal laws such as illegal possession of firearms, are
the integrity of the national constitute violations of absorbed in the crime of treason because of political offense
security of the state is international laws or doctrine.
under attack by its own relationship among
ranks countries Treason and illegal possession of shabu?
These crimes cannot be complexed because to apply
Fiscal: Jurisprudence is very limited because some are war complexing, there must be felonies. Illegal possession of
crimes. shabu has to be prosecuted separately since it cannot be
complexed nor absorbed because such crime is not in
Chapter One – Crimes against National Security furtherance of treason. Only common crimes that are in
furtherance of treason can be absorbed.
Section 1 – Treason and Espionage
Situation:
Article 114 – Treason What if Juan who is liable for treason will cause the
soldiers to use shabu to prevent them from falling asleep,
Elements of Treason can the crime be absorbed in treason?
1. Offender is a Filipino citizen or an alien residing in the Probably.
Philippines
2. There is a war in which Philippines is involved Rule: Common crimes committed in the furtherance of treason
3. Offender either (a) levies war against the government, or are absorbed in the crime of treason under the political offense
(b) adheres to the enemies, giving them aid or comfort doctrine.

Two ways of committing Treason Crimes which can be committed during peace time
1. Levying war against the government 1. Espionage
2. Adhering to the enemies of the Philippines, giving them 2. Inciting to war or giving motives for reprisals
aid and comfort 3. Violation of neutrality
4. Piracy
Levying war 5. Mutiny
1. There be an actual assemblage of men which onsists of a
considerable number of people Article 115 – Conspiracy and proposal to commit treason
2. Purpose is to deliver, in whole or in part, the country to the
enemy Conspiracy can be a crime in itself or a mode of committing a
crime. In treason, it could be a crime in itself. Mere agreement
Treason Rebellion to commit treason may already be punished as such.
Objective is to supplant the Objective is to take out the
present governance with present governance to Crimes where mere conspiracy is punished:
foreign sovereignty replace it with another local 1. Treason
Involves a foreign element No foreign element 2. Rebellion
Committed only during war Committed during peace 3. Coup d’ etat
It is a war crime times 4. Sedition
5. Brigandage
Two-witness rule
Article 116 – Misprision of treason
This is the rule of evidence in treason
Elements:
The testimony of two witnesses is required to prove the overt
1. Offender must be owing allegiance to the Government,
act of giving aid or comfort, but it is not necessary to prove
and not a foreigner
adherence. Each of the witnesses must testify to the whole
2. He has knowledge of any conspiracy (to commit treason)
overt act; or if it is separable, there must be two witnesses to
against the government
each part of the overt act. (People vs. Escleto)
3. He conceals or does not disclose and make known the
same as soon as possible to the governor or fiscal of the
Membership as a Makapili, as an overt act, must be
province or the mayor or fiscal of the city in which he
established by the deposition of two witnesses. Where two or
resides.
more witnesses give oaths to an overt act and only one of
them is believed by the court or jury, the defendant is entitled
A person who owes allegiance to the Republic of the
to discharge (People vs. Adriano)
Philippines is required by law to report when there is

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conspiracy or proposal to commit treason. Failure to report can
make him liable for misprision of treason. This crime is unique
to treason and only Filipino citizens can be punished for this
crime because they are the only ones who have the duty to
report.
Misprision of treason is committed by omission and by
dolo
This is a crime by omission. Although it is such, it is a crime
that is committed only by dolo because the omission must be
done knowingly. It should not be due to negligence. It is the
only felony that is committed by omission and at the same time
by dolo.
Treason War crime; only committed
when there is actual war
Conspiracy and Not essentially a war crime;
proposal to commit need not be committed during
treason actual war
Misprision of treason War crime; only committed
when there is actual war
Article 117 – Espionage
Two acts punished:
1. Enter a warship for the purpose of obtaining information of
a confidential nature relative to the defense of the
Philippines, or
2. Disclosing to a foreign representative the contents of the
information referred above which he had by reason of his
public office
Note: This can be committed by a public official and can be
committed during peace time.
Information must refer to the defense of the Philippines and not
of other countries.
Section 2 – Provoking war and
disloyalty in case of war
Article 118 – Inciting to war or giving motives for reprisals
Elements:
1. Offender performs unlawful or unauthorized acts
2. The acts provoke or give occasion for a war involving or
liable to involve the Philippines or exposes Filipino citizens
to reprisals on their persons or property
The acts punished are in the title itself. It refers to any act so
long as it will have the tendency of acquiring the result
provided in the provision.
Inciting to war
Means that one has committed an act in order to anger another
country so that it will go to war with the Philippines.
Article 119 – Violation of neutrality
Elements:
1. There is a war in which the Philippines is NOT involved
2. There is a regulation issued by a competent authority for
the purpose of enforcing neutrality
3. Offender violates such regulation
In violation of neutrality, although there is a war, it is a war in
which the Philippines has no part. It is a war of other countries
and the Philippines is not supposed to choose a side.
The Philippines must declare a neutrality where there are
countries in war. Although there are instances when we send
forces but it is only for peacekeeping. The forces are sent by
virtue of the Philippines’ commitment to the United Nations.
The purpose is not to engage in war or to take sides.
Example: Philippines sent forces to help US when it invaded
Iraq. However, when the UN declared that the war was not
sanctioned by it, the Philippines withdrew the forces.
Article 120 – Correspondence with hostile country
This is another obsolete law. It requires that you correspond
with the country, not a person within that country.
Article 121 – Flight to enemy’s country
No discussion
Section 3 – Piracy and mutiny on the high seas or in
Philippine waters
1. Piracy in general (Art. 122)
2. Qualified Piracy (Art. 123)
a. Punishes piracy and mutiny
b. Committed on the high seas only.
c. Reclusion Temporal
3. Piracy only in the Philippine waters (PD 532)
a. Includes all kinds of boats, because before it only
included “ocean-going” vessels.
b. Reclusion temporal
c. Does not punish mutiny.
d. Any person can commit the crime
e. Aiding/Abetting Piracy
f. It must be in the essence of robbery.
g. Any property of the ship/crew/passenger.
4. Piracy and Mutiny on the High Seas and Philippine Waters
(RA 7659 – Death Penalty Law)
a. Reclusion Perpetua from Death Penalty
b. Piracy cannot be committed by a passenger or crew,
irrespective of venue.
c. Amended Art. 122, which redefined meant Piracy can
also be committed in Philippine territory and not only
on the high seas.
d. It did not amend PD 532
Piracy is committed with intent to gain. This applies whether
the law applicable is 122, 123 or PD 532. Aside from intent to
gain, there must be use of force upon things or violence or
intimidation against persons. If no such mode of taking
property, present or attendant, the crime would simply be theft.
Example: Boat on the shore and you took it, that is just theft.
But if you forcibly take the boat, it could be piracy.
Article 122 – Piracy in general and mutiny on the high seas
or in Philippine waters
Two ways of committing piracy:
1. By attacking or seizing a vessel on the high seas or in
Philippine waters
2. By seizing in the vessel while on the high seas or in
Philippine waters the whole or part of its cargo, its
equipment or personal belongings of its complement or
passengers
Elements:
1. Vessel is on the high seas or in Philippine waters
2. Offenders are NOT members of its complement or
passengers of the vessel
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3. Offenders attach or seize the vessel, or seize the whole or
part of the cargo of said vessel, its equipment or personal
belongings of its complement or passengers.
Fiscal: There may be no foreign country involved; it is purely
domestic. Even before UN and treaties with other nations,
there is already a CIL recognizing piracy as an enemy of all
countries such that it becomes the obligation of each state to
protect itself from piracy. Eventually, when UN was created,
the UN GA passed a resolution declaring piracy as a crime
against humanity or hostes umani generis, which is why it is
also a crime against the law of nations.
Even before all these, the RPC which was passed in 1932
already considered piracy as a crime against law of nations
under title one.
Prior to the amendment by RA 7659, Article 122 only punishes
piracy committed in the high seas. In order to punish piracy
committed within the Philippines, RA 7659 amended Article
122. The basis now for the prosecuting piracy within the
Philippine territory is Article 122, as amended by RA 7659.
Article 122 covers only vessels which pertain to more or less
ocean-going vessels which is why it specifically mentions high
seas. Because they were probably thinking that only vessels
should be covered by 122.
PD 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974)
Objective: To punish piracy which has not yet been covered
by Article 122.
Piracy
Any attack upon or seizure of any vessel, or the taking away of
the whole or part thereof or its cargo, equipment, or the
personal belongings of its complement or passengers,
irrespective of the value thereof, by means of violence against
or intimidation of persons or force upon things committed by
any person, including a passenger or member of the
complement of said vessel, in Philippine waters.
Penalties
a. Piracy – reclusion temporal in its medium and maximum
periods
b. If physical injuries or other crimes are committed as a
result or on the occasion of the piracy – reclusion perpetua
c. If rape, murder or homicide is committed as a result or on
the occasion of piracy, or when the offenders abandoned
the victims without means of saving themselves, or when
the seizure is accomplished by firing upon or boarding a
vessel – death
RA 7659 (Death Penalty Law)
This law redefined piracy and made it punishable by death. But
in so doing, it did not only enumerate piracy, it also redefined
piracy to mean piracy committed within Philippine territory.
Effect
Article 122 and 123 now pertain to piracy in the high seas and
in Philippine waters.
Repeal of RA 7659
The repeal is only with respect to the penalty and not the
definition. Hence, piracy in Philippine waters is still punishable.
It is just that death can no longer be imposed.
Article 123 – Qualified piracy
When piracy is committed under the following circumstances:
1. Whenever they have seized a vessel by boarding or firing
upon the same
2. Whenever the pirates have abandoned their victims
without means of saving themselves
3. Whenever the crime is accompanied by murder, homicide,
physical injuries, or rape
People v. Tulin
The vessel was attacked and seized in Philippine waters. It
was brought to Singapore and its cargo was unloaded there
under the direct supervision of Hiong. He did not take part in
the taking of the vessel. His participation was only in the
unloading of the cargo in Singapore.
Hiong contended that the trial court did not acquire jurisdiction
over his person since the crime was committed outside
Philippine waters.
Ruling: Although PD 532 requires that the attack and seizure
be committed in Philippine waters, the disposition by the
pirates is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters.
Moreover, piracy is an exception to the rule on territoriality
under Article 2 of the RPC. It applies even if Hiong were
charged, not with qualified piracy under RPC but under PD 532
which penalizes piracy in Philippine waters.
Hiong was convicted for violation of PD 532, not Article 122, as
accomplice.
Fiscal: In this case, the information referred to two crimes, PD
532 and Art 122. The charge was for piracy under the two
laws. Worse, when SC handed down the decision, it also
mentioned RA 7659 which did not yet exist at the time of the
commission of the crime, although it existed at the time the
ruling was handed down.
The conviction of Hiong was under PD 532 which expressly
states that the crime should be committed within Philippine
territory. Evidently, Hiong did not commit any crime within the
Philippines. SC applied extraterritoriality under Article 2 even if
the conviction was not for a felony since it was under PD 532.
Implications of the Tulin Ruling
Even if PD 532 only pertains to piracy in Philippine waters but
because of the nature of the crime, it can be given
extraterritorial effect. Also, SC emphasized that piracy is a
continued or continuing crime and because of that, all the other
conspirators who contributed to the crime could be liable even
if the participation was already outside of the Philippine
territory. Therefore, it does not matter if piracy was committed
outside of the Philippines. It can be given extraterritorial
application.
If only article 122 is applied, there would have been no piracy
because it was not committed in the high seas. But then, there
is Article 2 on extraterritorial application.
Can piracy be complexed with other crimes?
No, because there is qualified piracy. When there is someone
killed, it will not be piracy with homicide but qualified piracy
under Article 123.
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One of the qualifying circumstances in piracy is physical can only be punished if the vessel is of Philippine registry.
injuries. So long as there is physical injuries, it will be qualified Otherwise, the robbery will not be punished under Philippine
under 123. Although piracy is committed with the use of force laws.
and intimidation, it does not require physical injuries for it to be
piracy. The physical injuries will actually qualify the piracy. It cannot be piracy under PD 532 because the law only applies
if the piracy was committed within the Philippines and even if it
However, 123 would only apply if it is a vessel and not just any was committed outside, it must be continuing which originated
boat. If it is a small boat, PD 532 shall apply. But such law has from the Philippine waters pursuant to Tulin case.
no qualified piracy. Hence, the injuries and rape which may be
committed with piracy under PD 532 will not be qualifying or PD 532 v. Article 122 (Boado)
inherent. It will be a separate offense, provided the charge is
under PD 532. PD 532 has lesser penalty compared to 122 Article 122, as
and 123. Because of that, (Fiscal thinks) the crimes can be P.D. 532 amended by RA
separated if the piracy is under PD 532. It cannot be absorbed 7659
because the penalty for PD 532 is lesser than 123. Outsiders or 3rd
Any person including persons only;
Mutiny Offender ship’s complement or complement or
The unlawful resistance to a superior officer, or the raising of passenger passenger are not
commotions and disturbances on board a ship against the liable
authority of its commander. Philippine waters
Exception: Tulin case
Note: Mutiny can be qualified. Philippine waters and
Situs The crime originated
high seas
in the Philippines and
Piracy Mutiny it is continuing
Economic objective by Of abetting
gaining the boat itself or Political objective Presumption
brigandage
the content of the boat Penalty of
Intent is to take As accomplices Accessories
Intent to gain is essential abettor
leadership of the boat Boat Only ocean-going
Any boat
covered vessels
Basis of the crime Include crimes other
Only Articles 122 and 123 of RPC. There is no mutiny in PD than murder, Exclude crimes other
532 nor is it included in RA 7659. homicide, rape, than murder,
Qualifying
physical injuries homicide, rape,
Basis for the extraterritorial application of mutiny (TN: Section 3(a) and physical injuries
Article 2 of the RPC. Considering that piracy in Philippine Fiscal’s discussion)
waters under Article 122 was only made possible by virtue of
RA 7659 and the latter law does not include mutiny, the basis
for the extraterritorial effect of mutiny is Article 2 of the RPC TITLE TWO – CRIMES AGAINST THE
and not RA 7659. Hence, mutiny can be punished wherever it FUNDAMENTAL LAW OF THE STATE
is committed by virtue of Article 2 of the RPC.
Fiscal: Do not make the mistake of citing RA 7659 if the crime
committed is mutiny. Cite Article 2 of the RPC for the Fiscal: Fundamental law of the State is the Constitution.
extraterritorial application. Hence, this title pertains to crimes violating the Constitution,
particularly the Bill of Rights because it is there where the
Mutiny is committed by crew or complement State makes guarantees that it will protect and respect the
Mutiny is committed be crew, not passenger. It is a crime rights provided therein. When these rights are violated by the
which is politically-motivated. If a passenger takes over, it State through state agents, that violation, among others, will
automatically becomes economic rather than political because give rise to criminal liability on the part of the offender and
a passenger has no right to take leadership. state liability on the part of the State.

Juan boarded a vessel plying the Manila-Davao route.
While the passengers were asleep, he picked their wallets.
Among the victims were A and B. What is the crime?
Theft.
While Juan was picking the wallets, C woke up and saw
what Juan was doing. So Juan threatened C with a gun
and got C’s wallet as well. What is the crime?
Piracy under PD 532. The law punishes the taking by any
person, in the nature of robbery, of any property of the
ship/crew/passenger. It is not piracy under Article 122 because
the latter applies only if the offender is an outsider, not a
passenger or crew.
Is there a crime of Robbery on the high seas?
Yes, if what is stolen is the property of the passenger. It will not
be piracy because under 122, it cannot be committed by a
passenger or crew. If it is a passenger, it is not piracy. But that
GR: All crimes in this title can only be committed by public
officers.
Exception: Article 133 which is offending the religious feelings
Chapter One – Arbitrary Detention or Expulsion, Violation
of Dwelling, Prohibition, Interruption, and Dissolution of
Peaceful Meetings and Crimes against Religious Worship
Section 1 – Arbitrary detention and expulsion
Article 124 – Arbitrary detention
Elements:
1. Offender is a public officer
2. He detains a person without legal ground
Arbitrary detention is committed by public officers who have
custody of a person arrested or detained without legal grounds.

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If this was committed by a private individual, the crime would
be illegal detention.
Battaliones
Arbitrary detention can be committed through unlawful arrest or
through imprudence. Although it seems that there is malice in
the act because of the term arbitrary detention, the court ruled
that it can be committed through imprudence.
People v. Ancheta
Good faith can be an evidence because arbitrary detention is
mala in se.
Situation:
In a hantak game, there were people surrounding the
game when suddenly, the police arrived so the people ran.
Pedro was arrested by Juan, the policeman. It turned out
later that Pedro was not involved since he was merely
passing by the crowd when the arrest was made. Is there a
crime of arbitrary detention through unlawful arrest or
imprudence?
No. There was good faith on the part of the Juan. When Pedro
was arrested, he was in the place where the game was being
conducted. There was a presumption that he was involved in
the commission of the crime. Juan is not liable because good
faith can be a defense.
What if Juan, without verifying, arrested and detained
Pedro thinking that he was Jose, a wanted criminal, is he
liable for arbitrary detention?
Yes. Juan failed to exercise prudence in confirming the identity
of the person arrested. This time, there is arbitrary detention
through imprudence. Had he confirmed the identity, he would
have known that the person arrested was not the correct
person. This is arbitrary detention by imprudence.
Fiscal: The first case is not imprudence because there was
reason for the officer to arrest Pedro. Provided that as soon as
it was found that the wrong guy was arrested, the officer
immediately released him, good faith may be used as a
defense to exonerate himself from criminal liability.
Article 125 – Delay in the delivery of detained persons to
the proper judicial authorities
Elements:
1. Offender is a public officer
2. He detained a person for some legal ground
3. He fails to deliver the person to the proper judicial
authorities within:
a. 12 hours for offenses punishable by light penalties or
their equivalent
b. 18 hours for offenses punishable by correctional
penalties or their equivalent
c. 36 hours for offenses punishable by afflictive
penalties or their equivalent
Periods under other laws
a. 72 hours for violations of Human Security Act
b. 8 hours for minors under Juvenile Justice Law
- However, the 8-hour period is for the arresting
officer to refer the minor to a social worker. The
period required for the delivery of detained
minors to proper judicial authorities is still the
periods provided in Article 125.
Fiscal: If there is legal ground for the arrest and detention
(arrest will be absorbed in detention), that will not yet free
officer from liability, unless he complies with the mandatory
period in Article 125. After the arrest, the officer must file a
case. Failure to do so can make him liable under Article 125.
Proper judicial authorities
Court authorities only.
Barangay tanod, prosecutor’s office, etc do not qualify as
proper judicial authorities. Hence, arrest and filing of case with
the prosecutor’s office is not enough. The case has to be filed
in court.
No case filed in court
Person arrested must be released within or after the lapse of
12-18-36-72 hours, whichever is applicable.
Basis for the applicable period
a. Crime is punishable by imprisonment, basis is
imprisonment as penalty, regardless of the fine
Recently, RPC was amended by RA 10951. The
amendments pertain only to the fine. It is possible that the
penalty can still be arresto menor but the fine has gone up
to P40,000. Whether or not a fine is afflictive will depend
on the amount. The basis for the number of hours will not
be the fine but the imprisonment as penalty.
b. Crime is punishable by fine only, the period of filing is 12
hours
Applicable period for Special Penal Laws
Since there is no light penalty or afflictive in SPL, look for the
equivalent in the RPC.
If period for imprisonment is 5-10 years, look at the equivalent
of the maximum period which is 10 years. Its equivalent is
prision mayor which is afflictive. So, the period will be 36
hours.
Soria v. Desierto
Accused was arrested on the eve of the elections for illegal
possession of firearms. The case was filed on May 15 which is
a Tuesday. 13 was a Sunday and 14 was election day. The
case could not be filed on election day because there were no
courts.
Ruling: Sunday and the election day are excluded in the
computation since there was no office.
Medina v. Orosco
Accused was arrested on a Sunday. November 8 was a
holiday while November 9 was election day. There were no
office days during those days. The accused was detained for
more than 72 hours. He was brought to court on the very first
business day.
Ruling: No violation of Article 125 because the officers could
not have filed the case on a day where there were no court
authorities. If courts are not open, the law is not violated.
Sayo v. Chief of Police
SC clarified that judicial authority pertains to a judge. It also
says that for the purpose of determining the criminal liability of
the officer detaining a person for more than the period provided
by law, the means of communication, including transportation
and other extraneous circumstances shall be excluded in the
computation.
Situation:
Juan was arrested in Camotes Island on a Sunday. It was
Signal No. 1 and there was no boat. There is no RTC nor
provincial prosecutor in Camotes. If the penalty is more
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than 4 years, 2 months, and 1 day, he has to be brought
for inquest. However, he cannot be brought for inquest
because the nearest prosecutor’s office is in Cebu.
Monday is Signal No. 2. There was no boat on Wednesday.
He was only brought to Cebu on Thursday. So, he was
detained for more than 90 hours. Was there a violation of
Article 125?
No violation of Article 125 because of extraneous
circumstances such as communication and transportation,
among others.
Accused was arrested in Camotes for violation of
Dangerous Drugs Act. The drugs have to be examined in
crime lab. The courts do not accept if there is no crime lab
report because corpus delicti is not identified.
This is also an extraneous circumstance. The case cannot be
filed in court through no fault of custodial officer.
If the reason for continued detention of the suspect is not
by an act or negligence of the arresting officer, such as
when the case was already filed with the prosecutor’s
office and the investigating prosecutor took time to
resolve the inquest, can the arresting officer be liable for
the delay?
No, because of extraneous circumstance of delay in the
resolution by the prosecutor. Article 125 is committed only be
the officer having custody of the person detained. Since the
prosecutor is not the person having custody of the person, he
cannot be liable although he is the one who caused the delay.
The person liable could be the police officer. But the latter can
put up a defense of good faith and not being negligent. The
reason why it was not filed in court was through an act not of
his own. In essence, we can apply the ruling in Sayo where
there are extraneous circumstances.
If Article 125 cannot be committed by the prosecutor, does
that mean that the prosecutor has no liability at all?
No, because there can administrative liability.
If there hasn’t been a resolution by the prosecutor, can the
suspect enforce his right to be released?
Yes, he can. He can file habeas corpus. He can also file for
arbitrary detention against the officer but it will not cause his
release.
With respect to 8 hours in Juvenile Justice Law, after its
lapse without the officer referring the minor to DSWD, will
there be a criminal liability?
There is none insofar as Article 125 is concerned. However,
there may be a violation of the Juvenile Justice Law.
Juan was arrested without a warrant for pushing
dangerous drugs. He was detained for two weeks before a
case was filed against him with the prosecutor’s office. It
took one month for the prosecutor to finally file the
Information in court because his case was not treated as
inquest. After docketed in court, the court issued an order
for the commitment of the accused to prison. Juan asked
to be released because his case is not an inquest case
and the officers who detained him violated Article 125.
There was violation of Article 125 because he was detained for
one month. The filing of the case with the prosecutor’s office is
not filing with the judicial authorities.
Because of the violation, can Juan be released?
No, because there is already a case filed in court. He should
have asked before the case was filed in court. Although it does
not cure the crime of 125 but that the detention cannot be
invalidated. Because when the case was already filed in court,
the police have already the authority to detain him. A release
order is needed before the police can release him because the
court already acquired jurisdiction over the person of the
accused.
Article 126 – Delaying release
Elements:
1. Offender is a public officer
2. There is an order for the release of the prisoner
3. Offender delays without good reason
This contemplates a situation where the person was legally
detained and there was a subsequent order for the release.
The order has to be obtained immediately.
Once an accused has been acquitted or the case against him
is dismissed, the order of dismissal or acquittal are
automatically final and executory. No appeal is allowed.
Therefore, from the time of dismissal or acquittal, the accused
must be released immediately.
The only reason for the continued detention of an accused who
was acquitted or has his case dismissed, is that he has
another pending case for which he still has to face trial.
Note: Articles 124, 125, and 126 are violations of a person’s
right to liberty.
Article 127 – Expulsion
Elements:
1. Offender is a public officer
2. He expels any person from the Philippines, or compels a
person to change his residence
3. Offender is not authorized to do so by law
Note: This violates the right of a person to his abode or to
travel or to his home
Section 2 – Violation of domicile
Article 128 – Violation of domicile
Three ways of committing this crime:
1. Entering the dwelling against the will
 Against the will is different from without consent. To
constitute a violation of domicile, the entering must
not only be without consent but also against the will.
2. Searching papers or other effects found in the dwelling
without the previous consent of the owner
 The entry may be with consent. Afterwards, the police
officer goes about searching the abode of the victim.
The search is not anymore consented, only the entry.
3. Refusing to leave the premises, after having surreptitiously
entered said dwelling and after having been required to
leave the same
 What is punished is the refusal to leave and not the
entry because the entry was surreptitious. Therefore,
it cannot be against the will. It is without consent but it
is not against the will.
Note: The offender is not authorized by judicial order to enter
the dwelling and/or to make a search. If the person is not a
public officer, the crime is trespass to dwelling.
Article 129 – Search warrants maliciously obtained, and
abuse in the service of those legally obtained
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Acts punishable:
1. By procuring a search warrant without just cause
2. By exceeding his authority or by using unnecessary
severity in executing a search warrant legally procured.
There must be a crime committed by the subject of the search
warrant. When there is an application for a search warrant, the
particular crime committed must be indicated in the application
for a search warrant as well as in the search warrant. If it was
maliciously obtained, the crime is under Article 129. Even if the
search warrant was obtained legally but it is in the service that
there was abuse, it is also punishable under Article 129.
If the search warrant legally obtained provides for shabu and
the officers, in addition to shabu, also confiscated the money
and jewelry, there is abuse in effecting the warrant.
If in effecting search warrant, the officer throws grenade to the
house when the occupants failed to open the door at first
instance, there can be abuse. What is allowed by law is only
reasonable force. Violence and unreasonable force is not
allowed. If employed, it will constitute as an abuse and a
violation of 129.
Article 130 – Searching domicile without witnesses
Elements:
1. Offender is a public officer
2. He is armed with search warrant legally procured
3. He searches the domicile, papers or other belongings of
any person
4. The owner, or any member of his family, or two witnesses
residing in the same locality are not present.
In Rule 126 of the Rules of Court, if the police has a search
warrant, he can search the house even if there was no
occupant, provided that he must have at least two witnesses
who is from the community and of good moral standing.
Section 3 – Prohibition, interruption, and dissolution of
peaceful meetings
Article 131 – Prohibition, interruption, and dissolution of
peaceful meetings
Acts punished:
1. Prohibiting or interrupting, without legal ground, the
peaceful meeting, or dissolving the same
2. Hindering any person from joining any lawful association
or attending any of its meetings
3. Prohibiting or hindering any person from addressing,
either alone or together with others, any petition to the
authorities for the correction of abuses or redress of
grievances.
Note: This is a violation of the right to peaceably assemble.
But the meeting must be peaceful, otherwise, the authorities
have every right to dissolve such meetings. What is
guaranteed under the Constitution are only peaceful meetings.
Section 4 – Crimes against religious worship
Article 132 – Interruption of religious worship
Elements:
1. Offender is a public officer
2. Religious ceremonies or manifestation of any religion are
about to take place or are going on
3. Offender prevents or disturbs the same.
Note: This is a violation of the freedom to practice religion.
Qualifying circumstance
Crime is committed with violence or threat
Article 133 – Offending the religious feelings
Elements:
1. Act complained of were performed in a place devoted to
religious worship or during the celebration of any religious
ceremony
2. Acts must be notoriously offensive to the feelings of the
faithful
Note: There must be deliberate intent to commit acts which are
notoriously offensive
Example: Someone destroys religious statues, this can be a
violation, provided that it be committed in a place of worship or
even if in different place, that there be a religious ceremony.
Important crimes:
Title one – Piracy
Title two – Arbitrary detention and Article 125
TITLE THREE – CRIMES AGAINST PUBLIC ORDER
Chapter One – Rebellion, Coup d’etat, Sedition and
Disloyalty
Article 134. Rebellion or Insurrection
Elements:
1. Rising publicly and taking arms against the government.
2. That the purpose of the uprising or movement is either:
a) To remove from the allegiance to said Government or
its laws:
a. The territory of the Philippines or any part
thereof; or
b. Any body of land, naval or other armed
forces
b) To deprive the Chief Executive or Congress, wholly or
partially, of any of their powers or prerogatives.
Number of Rebels
Substantial number of rebels required. Rebellion is more
massive than insurrection
Taking Arms
An important element in Rebellion. If no arms were taken
against the government or if the leaders alone were armed, it
will be a case of sedition, not rebellion.
Purpose of the Rebellion
The objective of rebellion is the complete overthrow of
government, whereas in insurrection, only minor changes are
desired.
Conspiracy to Commit Rebellion
Attendance in meetings to discuss plans to bring down the
government, is merely a preparatory step to commit the acts of
rebellion.
This is a crime punished under Art 136 as Conspiracy to
Commit Rebellion and not as Rebellion punished under Art
134. (Beltran vs Gonzales, June 1, 2007)
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Proposal and Inciting to Rebellion accused, better than any individual, knows...It is not enough
that the overt acts of rebellion are duly proven. Both purpose
Proposal to Commit and overt acts are essential components of the crime. With
Inciting to Rebellion either of these elements wanting, the crime of rebellion legally
Rebellion
acts must be done publicly acts are usually done secretly does not exist. (Office of the Provincial Prosecutor vs CA, Dec.
27, 2000)
the offender has not decided the one who proposes has
to commit rebellion himself decided to commit rebellion Summary of Political Offense Doctrine:
GR: Common crimes (punished by both the RPC and Special
Penal Laws) are absorbed into the Crime of Rebellion if
Note: Acts punished are Conspiracy, Proposal and Inciting to conclusively proven to be committed in furtherance of rebellion
Rebellion or Coup d'état; whereas in sedition, only Conspiracy Exception: if the defense does not prove the political motive or
and Inciting to sedition are punished. that the common crimes were committed in furtherance of
rebellion, then there is no rebellion and the accused is guilty of
Rebellion v. Sedition the common crimes.

Rebellion Sedition Article 134-A.- Coup d’ etat

There is always taking up There is public uprising which
arms against the government is tumultuous, but is not Elements:
armed 1. Offender is a person belonging to the military, police, or
The purpose is always The purpose may be political public officer or employee
political. There is no or social. Therefore, there 2. the crime is committed by means of a swift attack
Complexing in Rebellion due may be complexing in accompanied by Violence, intimidation, threat, strategy or
to the Political Offense sedition as the Political stealth
Doctrine. Offense Doctrine does not 3. The attack is directed against the duly constituted
apply. (People vs Kamlon, authorities of the Republic of the Philippines, or any
October 24, 1963) military camp or installation, communication networks,
public utilities or other facilities needed for the exercise
Political Crimes and continued possession of power
Those directly aimed against the political order as well as such 4. The purpose is to seize or diminish state power.
common crimes as maybe committed to achieve the political
purpose. The decisive factor is the intent or motive. RA 6958 (October 24, 1990)
It amended Art 134, 135 and 136 and punished the crime of
According to some authors, the gravamen of the crime of coup d’etat. The amendment removed the enumeration of
rebellion is an armed public uprising against the government. overt acts or means of committing rebellion
Therefore, it is the most important element. Without the
political character, it cannot be rebellion, although it may be According to some legal scholars, such amendment gave way
sedition. to the possibility of complexing.

Political Offense Doctrine: General Rule

Under the Political Offense Doctrine, “common crimes,
perpetrated in furtherance of a political offense, are divested of
their character as ‘common’ offenses and assume the Political
complexion of the main crime of which they are mere
ingredients and, consequently cannot be punished separately
from the principal offense, or complexed with the same, to
justify the imposition of a graver penalty. (Ocampo vs Abando,
February 11, 2014)
If a crime usually regarded as common, like homicide, is
perpetrated for the purpose of removing from the allegiance "to
the Government the territory of the Philippine Islands or any
part thereof," then it becomes stripped of its "common"
complexion, inasmuch as, being part and parcel of the crime of
rebellion, the former acquires the political character of the
latter. (People vs. Hernandez).
The principle of absorption is true even if the common crime is
punished under a Special Penal Law, such as Rebellion and
Obstruction of Justice. (Enrile vs Amin)
Exception to the Political Offense Doctrine
In deciding if the crime is rebellion, not murder, it becomes
imperative for our courts to ascertain whether or not the act
was done in furtherance of a political end. The political motive
of the act should be conclusively demonstrated.
In such cases the burden of demonstrating political motive falls
on the defense, motive, being a state of mind which the
Article 139 – Sedition
Elements:
1. That the offenders rise publicly and tumultuously
2. That they employ force, intimidation, or other unlawful
means
3. That the offenders employ of those means to attain any of
the following objects:
a) To prevent the promulgation or execution of any law
or the holding of any popular election
b) To prevent the National Government, or any
provincial or municipal government, or any public
officer thereof from freely exercising its or his
functions, or prevent the execution of any
administrative order
c) To inflict any act of hate or revenge upon the person
or property of any public officer or employee
d) To commit, for any political or social end, any act of
hate or revenge against private persons or any social
class
e) To despoil, for any political or social end, any person,
municipality or province, or the National Government
of all its property or any part thereof
Note: Those actually armed shall incur a higher penalty.
Force, intimidation, or other unlawful means

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Important elements in the crime of sedition. If none of these
are attendant in the crime, then there is no sedition, although
other crimes might arise if there are tumultuous uprisings.
Purpose maybe political or social
Sedition does not absorb murder by reason or furtherance
thereof. (Pp vs Kamlon). There may be complexing. (But if the
objective is political and NOT social, Political Offense Doctrine
applies.)
Note: Conspiracy to commit sedition is punishable by law, but
not proposal to commit sedition. There is also inciting to
sedition.
Article 142 - Inciting to Sedition
Three ways of committing inciting to Sedition
1. Inciting others to the accomplishment of any of the acts
which constitute sedition by means of speeches,
proclamations, writings, emblems, etc
2. Uttering seditions words or speeches which tend to disturb
the public peace
3. Writing, publishing, or circulating scurrilous libels against
the Government or any of the duly constituted authorities
thereof, which tend to disturb the public peace
Elements
1. The offender does not take direct part in the crime of
sedition
2. That he incites others to the accomplishment of any of the
acts which constitute sedition
3. That the inciting is done by means of speeches,
proclamations, writings, emblems, cartoons, banners, or
other representations tending to the same end
Two Tests Applied in Inciting Sedition
1. Clear and Present Danger — evil consequence of the
utterances must be "extremely serious and the degree of
imminence extremely high" before an utterance can be
punished. This is a more strict rule. Adhered to by SC in a
number of cases. (Vera vs Arca; ABS-CBN vs COMELEC,
Jan 28 2000)
Under normal situations (eg. No martial law declared), the
clear and present danger rule will apply. If there is no
agitation for the use force, intimidation or other unlawful
means and the utterance does not refer to the use of such
unlawful means and it was merely a criticism of the
performance of public officials, that would not be inciting to
sedition, even if the offender gained supporters. Instead, this
is a case of an exercise of free speech. However, if the
utterance is a proposal to commit something unlawful, then
there is that clear and present danger in the utterance
because it now incites people to commit something unlawful.
2. Dangerous Tendency Rule - The test to determine whether
an utterance is a rightful expression of the freedom of
speech or Inciting to sedition; usually used during politically
tense situations (Espuelas vs. People, 90 Phil. 524)
Under abnormal situations (eg. Martial Law declared), the
threshold is lower. Utterances which may be protected under
the free speech during normal situations, may be taken to be
inciting to sedition under abnormal situations.
IMPORTANT: These tests shall apply based on the normalcy
or the abnormalcy of the times.
Note: Fiscal is of the opinion that one cannot commit the crime
of inciting through negligence since uttering something is
always intentional. A statement may be reckless, but it cannot
be uttered negligently.
Criminal Liability under Inciting to Sedition
If Sedition results from the Incitement, the inciter is considered
a principal by Inducement for sedition.
If Sedition did not result, he will be liable only for Inciting to
Sedition.
Inciting to sedition is a continuing crime. (Umil vs Ramos, Oct
3, 1991)
Situation:
Juan who considers himself a peace-loving citizen, lives in
a mountain where rebels camp. Despite the knowledge of
their presence, Juan did not report to the authorities. One
day, he heard the rebels inciting the farmers in the
community to join in a series of riots and disturb the
peace of the town and was even asked to join, but he
refused for health reasons. Again, Juan did not report the
incident to the authorities. Is he criminally liable?
The crime would be Inciting to Sedition, under 142. Art 142 last
paragraph punishes knowingly conceaing illegal activities of
rebels or seditionists as inciting to sedition. If Juan was a
public officer himself, he may be liable for Disloyalty under Art
137, granting all other elements are present.
In “... or shall knowingly conceal such evil practices”,
“Knowingly” connotes the deliberate refusal to reveal the
sedition.
On the other hand, mere silence would only be punishable in
misprision of treason (crime of omission committed by dolo;
failure to disclose must be deliberate). No crime of misprision
of rebellion.
Summary of Treason, Rebellion, Sedition: What is
punished and Complexing
Treason
Conspiracy, Proposal, Misprision are punished, No
Complexing
Rebellion
Conspiracy, Proposal, Inciting, No Complexing (Political
Offense Doctrine)
Sedition
Conspiracy, Inciting, may be complexed (Pp vs Kamlon, if
objective is non-political, otherwise Political Offense Doctrine
applies)
Chapter Two – Crimes against Popular Representation and
Similar bodies
Section 1 – Crimes against legislative bodies and similar
bodies
Art. 143 on preventing the meeting of legislative bodies must
be with the use of force or fraud (but no absorption according
to Regalado; complexing possible)
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Art. 144 on disturbance of proceedings punishes the acts of
disturbing, interrupting proceedings or impairing the respect
due to legislative bodies.
Art. 145 on Violation of parliamentary immunity
Chapter Three – Illegal Assemblies and Associations
Article 146 - Illegal Assembly
Two ways of Committing Illegal Assembly
1. Attended by armed persons for the purpose of committing
any crime under the RPC
2. Audience is incited to commit treason, rebellion, sedition
or direct assault
Elements of First Mode: Attended by armed persons:
1. There is a meeting attended by armed persons
2. Purpose of the meeting is to commit any of the crimes
under the RPC
Elements of Second Mode: To commit treason etc:
1. There is a meeting
2. The audience (armed or not) is incited to the commission
of treason, rebellion, insurrection, sedition, or direct
assault
Article 147 - Illegal Association
Two Kinds of Illegal Associations
1. Associations totally or partially organized for committing
crimes under the RPC
2. Associations totally or partially organized for other
purposes against public morals
Difference between Illegal Assembly and Illegal
Association
What is punished under Illegal Assembly is the act of meeting
and what is punished under Illegal Association is the
association itself or being a member of a certain illegal
association, whether or not there be a meeting.
Chapter Four – Assault upon, and Resistance and
Disobedience to Persons in Authority and their Agents
Art. 148 Direct Assault
Two ways of committing the Direct Assault:
1. Without public uprising, employing force or intimidation for
the attainment of purposes under sedition and rebellion
2. Without public uprising, attacking, forcing, or SERIOUSLY
intimidating or resisting a person in authority or his agent
while engaged in the performance of official duties
Elements of the Second Mode (Gelig case)
1. That the offender
a. makes an attack (need not be serious),
b. employs force,
c. makes a serious intimidation, or
d. makes a serious resistance.
2. That the person assaulted is a person in authority or his
agent.
3. That at the time of the assault the person in authority or
his agent is engaged in the actual performance of official
duties, or that he is assaulted by reason of the past
performance of official duties.
4. That the offender knows that the one he is assaulting is a
person in authority or his agent in the exercise of his
duties.
5. That there is no public uprising.
In the Performance of Duty or by Reason of Past
Performance
it is not necessarily needed that the person in authority was
actually in the performance of his functions. It is enough that
the attack was by reason of his past performance of official
duties. The Gelig case expanded the meaning of “while
engaged in the performance of official duties”.
Serious Resistance
If the resistance is not serious, then a different crime of
resistance or disobedience to a person in authority or his agent
is committed. Therefore, to constitute direct assault, the
resistance must be serious.
Knowledge that the Offended is Person of Authority
it is the authority, rather than the person, that is being attacked.
Therefore, this crime to be done must be with the knowledge
that the offended party is a person of authority or his agent.
Situation (cannot find in recording)
Brgy. Tagay held a public disco on the occasion of its
fiesta. Its bachelor barangay captain Pedro was looking
forward to occasion to show off his dancing skills. One of
the spectators, Juan, did not like that his girlfriend
seemed so impressed with Kapitan Pedro and was
dancing with him. Unable to control the rage inside him,
Juan approached Kapitan pedro and boxed him. Seeing
this, Barangay Tanod Alex tried to neutralize Juan but he
was also boxed by Juan. Assuming that Juan knew that
Alex was a Barangay Tanod and that Pedro was the
Barangay Captain. What are the crimes if any?
Answer: Direct assault was committed against Brgy Tanod
Alex because he was assaulted while he was in the
performance of public function to keep the peace.
However, there was no direct assault against Barangay
Captain Pedro because while dancing, he was not performing
a public function. Neither did Juan punch him because of his
past performance of a public function.
Private person can be the victim of Direct Assault if:
1. If he is a person in authority or an agent of a person in
authority, even if he is not a public officer, i.e. professors,
lawyers
2. If offender employs violence against private person for
similar purpose as rebellion or sedition but without public
uprising
3. If he comes to the aid of a person in authority [RA 1978
(1957); BP 873 on lawyers (1985)]
Note: The person who comes to the aid of a person in authority
is converted into an agent of the person in authority.
Indirect Assault
The crime of indirect assault would be committed if a private
person who came to the aid of an agent of a person of
authority is attacked.
Complexing Direct Assault
There is no Special complex crime Involving Direct Assault.
However, direct assault may be complexed under Article 48 of
the RPC. If the Direct assault results in a grave or less grave
felony, Article 48 may be applied. If the Direct Assault had an
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intent to kill which is premeditated, there could be a crime of
Direct assault with Attempted/Frustrated murder.
However, if the Direct Assault produces only Slight Physical
Injuries, there is no complexing. The latter is absorbed by the
former.
If two separate Informations are filed, conviction in one
negates the other because the conviction of one which is part
of assault would bar a prosecution for the other;
The only time when there can be 2 separate offenses is when
there are victims during the commotion.
Qualified Direct Assault:
Penalty is higher is any of the following is present:
1. Committed with a weapon
2. offender is a public officer or employee
3. offender lays hand upon a Person in Authority
Article 151- Resistance and disobedience
Elements:
1. Person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the
offender
2. That the offender resists or seriously disobeys such
person in authority or his agent
Note: When the disobedience to an agent of a person in
authority is not of a serious nature, it carries a lower penalty.
Situation:
SP11 was chasing a snatcher. Pedro and Juan were
laughing and making fun of SP11’s physical appearance
and awkward movements. SP11 got distracted and lost the
snatcher. SP11 then arrested Pedro and Juan for
Resistance and Disobedience. Is this correct?
Answer: No, there is no resistance and disobedience. Neither
is there obstruction of justice.
Article 152 - Persons in authority; agents of persons in
authority
PA is a person who is vested with jurisdiction recognized by
law and clothed with authority in law. Includes brgy. captain,
lupon, and kagawads per Sec 388 of RA 7160. (Pp vs Sion,
Aug 11, 1997).
Agents of the PA a person charged with the maintenance of
public order and the retention of security of life and property.
Includes the brgy. Tanods.
Chapter Five – Public Disorders
Article 153 – Tumultuous disturbance; interruption liable
to cause disturbance.
Ways of Committing Tumultuous disturbance:
1. serious disturbance in a public place, office, or
establishment
2. shall interrupt or disturb public performances, functions or
gatherings, or peaceful meetings, not falling under Arts
131 or 132 (which can be committed by public officers)
Note: The disturbance or interruption shall be deemed to be
tumultuous if caused by more than three persons who are
armed or provided with means of violence. Any kind of item
that can be used as a weapon can arm a person under this
provision.
Article 154 – Unlawful use of means of publication and
unlawful utterances
Differs from SLANDER or LIBEL in that the purpose in Art 154
is not to embarrass the victim. There is no private offended
party in Art 154. The purpose is to disturb the public order
through radio, text, or any other means of publication. (Eg.
“Chona Mae”)
Art. 155. Alarms and scandals.
Ways of Committing Alarms and Scandals
1. Discharging any firearm, rocket, firecracker, or other
explosives in a town or public place calculated to cause
alarm or danger;
2. Instigate or take an active part in any charivari or other
disorderly meeting offensive to another or prejudicial to
public tranquility;
3. Disturbing the public place while wandering about at night
or while engaged in any other nocturnal amusements; or
4. Causing any disturbance or scandal in public places, while
intoxicated or otherwise, provided that the circumstances
of the case shall not make the provisions of Article 153
applicable.
Discharging Firearm
there must be no intent to kill, no injuries caused, not aimed in
the direction of a person, and the purpose is to create an
alarm. If the firearm is directed at another person, it will no
longer be alarms and scandals but the crime will either be
grave threats, illegal discharge of a firearm, or attempted
murder.
Note: Not necessary that there is a complainant or a private
offended party.
Art. 156. Delivery of prisoners from jails.
Elements:
1. Person confined in a jail or penal establishment
2. The offender removes therefrom such person, or helps the
rescue of such person
Penalty is higher if by means of violence, intimidation, bribery.
Note: this is the crime committed by the person who removes
the person from jail, whether or not the person in jail be
convicted or not.
Chapter Six – Evasion of Service of Sentence
Article 157 – Evasion of Service of Sentence by escaping
during the term of his sentence
Elements:
1. Offender is a convict by final judgment
2. Serving his sentence which consists in deprivation of
liberty
3. He evades the service of his sentence by escaping during
the term of his sentence
Article 158 – Evasion of Sentence on the occasion of
disorders
Elements:
1. Offender is a convict by final judgment,
2. There is a disorder, resulting from
a. Conflagration
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b. Earthquake
c. Explosion
d. Similar catastrophe, or
e. Mutiny in which he has not participated
3. Offender evades service of sentence on the occasion of
disorders
4. Offender fails to give himself up to the authorities within 48
hours following the issuance of a proclamation by the
Chief Executive announcing the passing away of such
calamity
Article 159 – Other cases of evasion of service of
sentence, by violating the conditions of conditional
pardon
Elements:
1. Offender was a convict
2. Granted a conditional pardon by the Chief Executive
3. That he violated any of the conditions of such pardon
Escape
Means unlawful departure from the custody. If he has not yet
been committed to prison, he cannot be said to have escaped.
“Escape" in legal parlance and for purposes of Articles 93 and
157 of the RPC means unlawful departure of prisoner from the
limits of his custody.
Clearly, one who has not been committed to prison cannot be
said to have escaped therefrom.
Chapter Seven – Commission of another crime during the
service of penalty imposed for another previous offense
Article 160 - Commission of another crime during service
of penalty imposed for another previous offense (Quasi-
recidivism)
Elements:
1. Offender was already convicted by final judgment of one
offense
2. Offender committed a new felony before beginning to
serve such sentence or while serving the same
Special Aggravating Circumstance
Quasi-recidivism is a special aggravating circumstance which
maximizes the penalty, and which cannot be offset by ordinary
mitigating circumstance.
Kinds of Repeat Offense:
1. Recidivism - ordinary aggravating circumstance
increases the penalty by period; maybe offset by ordinary
mitigating
2. Reiteracion/Habituality – also an ordinary aggravating
circumstance.
3. Multirecidivism/Habitual Delinquency – results in an
additional penalty/incremental penalty.
4. Quasi-Recidivism - special aggravating circumstance
which maximizes the penalty; cannot be offset by an
ordinary mitigating circumstance.
TITLE FOUR – CRIMES AGAINST PUBLIC INTEREST
Chapter One – Forgeries
Definition of terms
1. Utter – pass counterfeited coins, deliver or give away
2. Import – bring to port the same
3. Counterfeiting – refers to money or currency
4. Forgery – instruments of credit and obligations and
securities issued by the Phil gov’t or any banking
institution authorized by Phil gov’t to issue the same
5. Falsification – can only be committed in respect of
documents
Note: Crimes against Public interest involves defrauding the
public rather than defrauding a private person. However, there
is still a private party.
Section One – Forging the Seal of the Government of the
Philippine Islands, the Signature or Stamp of the Chief
Executive
Article 161 – Counterfeiting the great seal of the
Government of the Philippines, forging the signature or
stamp of the Chief Executive
Falsifying the President’s signature is not a crime under
falsification, but falls under Art 161
Article 162 – Using forged signature or counterfeit seal or
stamp
Important:
If it’s an ordinary person’s signature, it is falsification. Thus,
there is no such thing as falsification of President’s signature.
Section Two – Counterfeiting Coins
Article 163 – Making and importing and uttering false
coins
Article 164 - Mutilating coins or importing & uttering
mutilated coins (of legal tender) with connivance with
mutilators
Other opinion say that gain from metal dust or deliberately
diminish the value of coin, otherwise PD 247 applies
Article 165 - Selling of False or Mutilated Coin, Without
Connivance
While the title indicates only crime as selling, this article
punishes possession with intent to utter and distribution of
false or mutilated coins without connivance of mutilators
Section Three – Forging Treasury or Bank Notes,
Obligations and Securities; Importing and Uttering False
or Forged Notes, Obligations and Securities
Article 166 – Forging treasury or bank notes or other
documents payable to bearer; importing, and uttering
such false or forged notes and documents
Mere possession is not punishable, it must be coupled with
intent to use
Example: Store of insik in Magallanes. They will display the
fake and it will say this is a fake money etc. It is not a crime
because there is no intent to use.
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Article 167 – Counterfeiting, importing, and uttering
instruments not payable to bearer.
Mere possession must be coupled with intent to use
Article 168 – Illegal possession and use of false treasury
or bank notes and other instruments of credit
Giving a treasury or bank note or instrument the appearance of
a true genuine document;
Erasing, substituting, counterfeiting, or altering the figures,
letters, words, or signs therein.
Situations:
Putting a mustache on Ninoy’s face - it is considered as
altering the figures.
When the teller will writes something on the money in the
bank - it is not considered as erasing, substituting, etc.
Printing play money to appear smaller - not forgery
Important:
Intent to use only pertains to the possession. Not the making.
Section Four – Falsification of Public Commercial and
Private Documents, and Wireless, Telegraph, and
Telephone Messages
Article 171 - Falsification by public officer, employee, or
notary or ecclesiastical minister
Elements:
1. Offender is a public officer, employee, or notary public
2. He takes advantage of his official position
3. He falsifies a document by committing any of the falsifying
acts stated under the Article
4. In case the offender is an ecclesiastical minister, the act of
falsification is committed with respect to any record or
document of such character that its falsification may affect
the civil status of persons
Acts of Falsifying Documents:
1. Counterfeiting or Imitating any handwriting, signature, or
rubric
2. Causing it to appear that a person participated in any act
or proceeding, when they did not in fact participate.
3. Attributing to persons who have participated in an act or
statements other than those in fact made by them.
4. Making untruthful statements in a narration of facts
5. Altering true dates
6. Making any alteration or intercalation in a genuine
document which changes its meaning
7. Issuing in an authenticated form a document purporting to
be a copy of an original document when no original exists,
or including in such copy a statement contrary to, or
different from, that of the genuine original
8. Intercalating any instrument or not relative to the issuance
thereof in a protocol, registry, or official book
Article 172 - Falsification by private individuals and use of
falsified documents
Three ways of committing Falsification by Private
Individuals
1. Falsification of public, official or commercial document by
a private individual
2. Falsification of private document by any person
3. Use of a falsified document
Elements of First Mode:
1. Offender is a private individual
2. Committed any acts of falsification under Article 171
3. Falsification was committed in a public, official, or
commercial document
Elements of Second Mode:
1. Offender committed any of the acts of falsification under
Article 171 except par. 7
2. Falsification was committed in any private document
3. Falsification caused damage to a third party or at least the
falsification was committed with intent to cause such
damage
Elements of Third Mode:
1. Offender knew that the document was falsified by another
person
2. False document is embraced in Article 171 or in any
subdivisions No. 1 or 2 of Article 172
3. That he introduced said document in evidence in any
judicial proceeding
4. If not in judicial proceeding, the use caused damage to
another or was intended to cause damage to another
Four Kinds of Documents:
1. Public Documents
2. Official Documents – need not be public (eg. Confidential
letter regarding the defense of the country or the matrix of
drug lords. These are official yet non-public documents)
1. Commercial Documents - not necessarily negotiable
documents
2. Private Documents – neither official, public, nor
commercial
Damage in Falsifying Documents
to constitute the crime of falsifying private documents, there
must be damage. Whereas for official, public, and commercial
documents, damage is not required as an element to constitute
a crime.
Note: Article 171 is always in relation to Article 172
Falsification, not Correction (Sarep v. Sandiganbayan)
If there is an incorrect statement that you try to correct, that is
not the essence of falsification. What is punished is not the
correction, but the falsification.
Good Faith in Falsification Availing (Layno v. People)
Good Faith is a valid defense in a charge of falsification of
public documents. There is no falsification of public documents
if the acts of the accused are consistent with good faith.
Although the accused authored the public document, he will
not be guilty of falsification if there is good faith. Good faith is
availing since this is mala in se.
Falsification has no witnesses (Villamar v. People)
Therefore, the law makes a presumption. It is well-settled in
this jurisdiction that the person who stood to benefit by the
falsification of a public document and was in possession of it is
presumed to be the material author of the falsification.
Complexing Falsification
Falsification of public, official, and commercial documents is
possible. But falsification of private documents is not possible.
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As ruled in Sevilla v. People, Reckless Imprudence
resulting in Falsification of a document is possible.
In that case, the Sevilla was a public officer and was made to
fill out a PDS, a public document. Sevilla had his secretary fill
the PDS but the secretary ticked the “No” choice to the
question on whether there was a pending criminal case against
him, when in fact there was. Thus, Seville was convicted for
Reckless imprudence resulting in Falsification of Public
Documents.
People v. Po Giok To (as opposed to Sevilla v. People)
Po Giok To provided false information to the representative of
the City Treasurer who was filling up Po Giok To’s residence
certificate. Po Giok To cannot claim that he did not commit
falsification just because he was not the person who wrote
false statements on a public document since he was the
person who supplied the information to be written on the public
document. Therefore, Po Giok To committed the crime of
falsification of a public document even if he was not the author
of the document. Consummation of Falsification of Private
Document (US v. Infante)
The crime of falsification of a private document is
consummated at the time when and the place where the
document is falsified to the prejudice of, or with the intent to
prejudice, a third person—and this whether the falsified
document is or is not thereafter put to the improper or illegal
use for which it was intended
As long as the document was written with the intent of causing
damage, and even if it was not actually used, there is already
consummated falsification. If you look at the elements of the
crime, damage per se is not an element, only intent to cause
damage.
Therefore, the date the crime was committed is when it was
written with intent to damage.
It cannot be made as a defense that at the time of falsification,
the document was not yet public. Even if at the time of the
commission of the falsity, the document was not yet notarized,
that is the date of the consummation of the falsification. The
document will be considered public document even if it only
became public after the falsification. The falsification happened
before the document became public. (Tambunting case)
Example:
If I write a false statement in my application for the Bar exam
on February 9 and had it notarized on April, what is committed
is falsification of a public document, not falsification of private
document.
Article 173 - Falsification of wireless, telegraph, and
telephone messages, and use of said falsified messages
Section Five – Falsification of Medical Certificates,
Certificates of Merit or Service and the Like
Article 174 – False medical certificates, certificates of
merit or service, and the like
Article 175 – Using false certificates
Section Six – Manufacturing, Importing and Possession of
Instruments or Implements Intended for the Commission
of Falsification
Article 176 – Manufacturing and possession of
instruments or implements for falsification.
Chapter Two – Other Falsities
Section One – Usurpation of Authority, Rank, Title, and
Improper Use of Names, Uniforms, and Insignia
Article 177 – Usurpation of authority or official functions.
1. Usurpation of Authority
By knowingly and falsely representing oneself to be an
officer, agent or representative of any department or
agency of the Philippine Government or any foreign
government
2. Usurpation of official function
By performing any act pertaining to any person in authority
or public officer of the Philippine Government or of a
foreign government or any agency thereof, under pretense
of official position, and without being lawfully entitled to do
so
Article 178 – Using fictitious name and concealing true
name.
1. Offender uses a name other than his real name
2. He uses the fictitious name publicly
3. The purpose of the offender is:
a. To conceal a crime
b. Evade a judgment, or
c. Cause public damage
Illustration:
Juan is not popularly known to be Juan. He is more popularly
known as Johnny. But nobody knew he was Juan. So Johnny
was convicted was a crime of rape. He went to another place,
and this time he did not introduce himself as Johnny. But now
he used his name “Juan”. So if the purpose is conceal his
crime, avoid a judgment, but he used his real name instead of
fictitious name, since what is punished is the use of fictitious
name, then there is no crime committed under this Article.
Section Two – False Testimonies
Art. 180 – False testimony against a defendant
Art. 181 – False testimony favorable to the defendant
Elements:
1. there is a criminal proceeding
2. offender testifies falsely under oath against the defendant
therein
3. offender who gives false testimony knows that it is false
4. the defendant against whom the false testimony is given is
either acquitted or convicted in a final judgment
Art. 182 – False testimony in civil cases
Elements:
1. testimony must be given in a civil case
2. testimony must relate to issues presented in said case
3. testimony must be false
4. false testimony must be given by the defendant knowing
the same to be false
5. testimony must be malicious and given with an intent to
affect the issues presented in said case
Note:
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All kinds of false testimony are punished. However, for Articles

180 and 181 applies to criminal cases. It does not matter if the Perjury Testimony given through
accused is benefited by the testimony or not, it is always a affidavit (Summary
crime. Procedure, JAR)
This does not pertain to a Stands as a witness’
Article 182 is about the liability of a person who falsely testifies testimony at any case at all. testimony in court if the
in a civil case, regardless of who is benefited by said This refers to your normal affidavit is introduced in court.
testimony. affidavits. This pertains simply
to a statement made under Important: However, if it is
Art 183 – False testimony in other cases and Perjury oath, not necessarily facts not introduced in court, it will
relative to a case pending not fall under Rule 181- 182.
In 183 (Perjury), it presupposes the existence of a false under a tribunal.
affidavit. (ex: affidavit of loss)
Rule 183 applies Rule 181- 182 applies
Two Ways of Committing Perjury
1. It punishes false testimony before a proceeding/ trial, that Art 184 – Offering false testimony in evidence
is not criminal or civil. Usually, in administrative cases. Elements:
2. Making a false affidavit (perjury), regardless of the 1. Offender offered in evidence a false witness or false
proceeding it is made for testimony
2. He knew the witness or the testimony was false
Elements of Perjury 3. Offer was made in a judicial or official proceeding
1. Accused made statement under oath or executed an
affidavit; Chapter Three – Frauds
2. It pertains to a material matter;
3. It was made before a competent officer; Section One –
4. There is deliberate assertion of falsehood. Machinations, Monopolies, and Combinations
5. The document that is under oath must be required by law.

Example: if you execute an application to take the bar exam,
this needs to be under oath. If it’s in affidavit form, perjury. If
not, falsification of public document only.
The fact must be material.
Material matter
The main fact which is the subject of the inquiry or any
circumstance which tends to prove the fact, or any fact or
circumstance which tends to corroborate or strengthen the
testimony relative to the subject of the inquiry, or which
legitimately affects the credit of any witness who testifies.
Example: You make an affidavit to file a case, and it must
pertain to a material matter. So if the falsity only pertains to
your address, which is not really a material matter in the case,
it is not perjury. There’s falsity, but it is not perjury. Not all
falsehood is perjury.
Must be made before a competent officer:
A. Notary publics
B. Public officers who are notary public de oficios, done in
relation to their office when there are no other available
notary (ex: mayors, chiefs of police, presidential
appointees)
Ex: you made an affidavit which was notarized behind the city
hall. This will not constitute perjury if used; but, should you
already use this affidavit to deceive someone, the crime of
estafa will be committed.
Art 185 – Machinations in Public Auctions
Two ways of Committing Machinations in public auctions
1. Soliciting any gift or promise as a consideration from
refraining from taking part
2. Attempting to cause the bidders to stay away by giving
consideration
Note: In both instances, there must be a public auction.
Article 186 – Monopolies and combinations in restraint of
trade
Unfair Competition
Employing deception or any other means contrary to good faith
by which any person shall pass of the goods manufactured by
him or in which he deals or his business, services for those
one having established goodwill, or committing any act
calculated to produced the result (Sec 168, 2 RA 8293)
The Test of Unfair Competition
Whether certain goods have been clothed with the appearance
which is likely to deceive the ordinary purchaser ordinary care.
Section Two –
Frauds in Commerce and Industry
Art 188 & 189 - repealed by Intellectual Property Act (RA
8293)

Deliberate assertion of falsehood.

It must not be an innocent mistake. Thus, good faith is a
defense.
In summary procedures and in the Judicial Affidavit Rule
(JAR), the affidavit serves as the witness’ direct testimony.
Do we apply 181 - 182 or do we apply 183?
Rules 181- 182 will apply. Even if it is a mere affidavit, that
affidavit still constitutes a witness’ testimony.
TITLE FIVE – CRIMES RELATIVE TO OPIUM AND
OTHER PROHIBITED DRUGS
Arts 190 – 194 - repealed by special laws on drugs
(RA 9165, RA 10640)
TITLE SIX – CRIMES AGAINST PUBLIC MORALS
Chapter One – Gambling and Betting

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Arts. 195 – 199 – have been repealed and modified by PD’s
449 483 1602 and the Illegal Numbers Game Act.
Chapter Two – Offenses against Decency and Good
Customs
Art 200 - Grave Scandal
Any highly scandalous act offensive to morals and good
customs and committed publicly OR within the knowledge and
view of the public
Note: In grave scandal, there is no specific act that is
punished. What is found in Art 200 are standards - any act
that falls short of the standards set in Art 200 are criminal acts.
That’s why we call it a catch- all provision because it can refer
to any act.
In a sense, this is relative. The act could be a crime to some
but not to others.
What constitutes as highly scandalous is left to the discretion
of the prosecutor and the judge.
(This part is putol sa slide and was not discussed)
Grave scandal must acted (?) to the sense of decency or good
customs (?), NOT on property
Public view is NOT necessary (?) as long as the act was
performed in… (?)
Art 201 – Immoral doctrines, obscene publications, and
exhibition and indecent shows.
Mere possession of obscene literature or pornographic
material is not punishable. There is no penalty for that. It is
only punished if possession is coupled with publishing,
exhibiting and distributing.
XPN: RA 9775 – punishes mere possession of child porn.
Even if it’s not a real child (a mere cartoon), or an adult acting
as a child, that’s Child Pornography.
Q: Is a naked person already obscene? Is an anotomical
part considered obscene?
It will only be considered a crime under art 201 if it is
considered obscene, which is relative. In many cathedrals in
Europe, there are even many naked people in the ceiling.
However, it may be considered obscene if what was shown
was the penis of a religious icon. If there are pictures of naked
people, that’s not automatically obscene. What would make it
obscene would be how it’s portrayed.
This may also be punished under Art 133 - offending the
religious feelings. However, it is only punishable if done in a
place of religious worship or during a religious ceremony.
Art 202 - Vagrants and Prostitutes
In April 2012, Vagrancy was decriminalized. Thus, the first
paragraph of Art 202 is repealed. But prostitution still remains a
crime.
Prostitution under the RPC
 Under the RPC, only women can be considered
prostitutes.
Thus, transgenders can not be liable for prostitution.
 Prostitution under the RPC requires habituality in
engaging in sexual intercourse or lascivious conduct.
TN: The prostitute need not engage in sexual conduct,
it is sufficient that she engage in lascivious conduct.
Prostitution under the Anti - Human Trafficking Law
(Under RA 9208, aab RA 10364)
 Trafficked sexual workers are not punished, but
considered victims.
Can Art 202 of the RPC be reconciled with RA 9208, aab
RA 10364?
 YES. RA 9208 does not repeal Art 202 of the RPC, they
may stand together and stand independently of each
other. Under the Trafficking law, the prostitute is not
criminally liable if she was trafficked, such as when she
was acting under the direction of a pimp.
RA 9208 Art 200 of the RPC
Prostitute is a victim Prostitute is criminally liable
The customer is punished The customer is not
(Sec 11) punished
TITLE SEVEN – CRIMES COMMITTED BY PUBLIC
OFFICERS
Chapter One – Preliminary Provisions
Who are liable
Only public officers can be charged.
Does not refer to persons in authority or agents of persons in
authority.
Who are public officers, as per Art. 203?
1. By provision of law (ex: by reason of vacancy/succession)
2. Popular election
3. Appointment
Note:
1. For malversation (Art 217 - 221), “public officers” include
those mentioned in Art 222.
2. For RA 3019 (Anti-Graft and Corrupt Practices Act),
“public officers” has a wider scope and includes temporary,
contractual, casual, employees or those receiving
compensation from the government.
In Maniega v. People, SC held that it is not the nature of the
appointment, but the duties performed that is determinative.
2 cases for the same: (not in slides/ recording)
1. Criminal in nature
a. Higher in Penalty
b. Once the case is filed in court, there is another
preventive suspension
c. Not related to administrative case
2. Administrative in nature
a. There can be suspension even before the case is filed
/ preventive suspension
b. Easier to prove, because quantum of evidence
required is not proof beyond reasonable doubt.
Fiscal P: That is why many complainants prefer to avail of the
SPL (RA 3019) instead of Title 7 of the RPC.
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Important:
Under RA 3019:
1. Not only is there preventive suspension prior to conviction
of public officer, there is also another possibility of a
suspension, once the case is already filed in court
(criminal nature)
2. it is possible that there is an acquittal in criminal case, but
there is a conviction in the administrative case.
Would there be double jeopardy?
Depends on the elements. If the elements are the same, then
there would be double jeopardy. But if they are different, there
can be prosecution under criminal and admin case.
Public officer is not the same category with persons in
authority
Persons in authority need not be public officers, they may be
civilians. Not all public officers are persons in authority.
Chapter Two – Malfeasance and Misfeasance in Office
Section One –
Dereliction of Duty
Definition of Terms
1. Malfeasance: doing of something which is wrong and
should not be done
2. Misfeasance: doing of an act which may be performed
but is done erroneously; there is a mistake in performing
the act
3. Non-feasance: omission to do an act that should be
done.
Note: The definition of these came out in the bar exams.
MALFEASANCE AND MIFEASANCE
Note: Articles 204- 207 can be committed by judges only.
Art 204 – Knowingly rendering unjust judgment
Art 206 - Unjust Interlocutory Order
Judgment, Final Order, Interlocutory Order
1) Judgment – is a final order which terminates the
case, issuance coming from the court, thru the judge,
which puts finality to a case, whether civil or criminal.
Based on the merits of the case, based on the
evidence.
In order to be criminal, the judgment must be
knowingly rendered.
2) Final order – terminates the case, but not based on
the evidence (i.e. motion to dismiss), based on a
ground w/c would have the effect of dismissal. (Ex:
Prescription)
3) Interlocutory order – order that does not terminate
the case; It’s an incidental order.
Quinarosa case (can’t hear well): the SC clarified that the
judge’s failure to interpret the law or to properly appreciate the
evidence presented does not necessarily render them
criminally liable. Only errors tainted with fraud, dishonesty
gross ignorance or bad faith will be sanctioned.
Yasin vs. Felix, Dec 4, 1995
Yasin reiterates Dela Cruz vs Concepcion: to constitute gross
ignorance of the law, the decision, order or actuation of the
judge must not only be contrary to existing law and
jurisprudence but he must be moved by bad faith, fraud,
dishonesty, or corruption.
Knowingly rendering unjust judgment is both a criminal and
administrative offense. As a crime, it is punished under Article
2, the elements of which are
a. the offender is a judge
b. he renders a judgment
c. the judgment is unjust
Layola vs Gabo, Jan 26, 2000
For granting bail in a murder case, the judge was held liable
only for gross ignorance of the law. He was relieved from
charges of Knowingly Rendering Unjust Interlocutory Order.
The quantum of proof required for Knowingly Rendering Unjust
Judgment is proof beyond reasonable doubt. Malice was not
proven here.
Bail is not a matter of right in murder cases but may be granted
by the judge upon a sound discretion. Hearing must be made
for the prosecution to present evidence; the hearing may be
summary following the new Supreme Court circular.
ARTICLE 208
Article 208 penalizes dereliction of office by prosecutor, by
maliciously refraining from instituting prosecution or tolerating
the commission of offense.
Dismissing a case is not tantamount to violation of Article 208 if
there is a legal basis. Prosecutors are given wide latitude in the
prosecution of cases.
ARTICLE 209
This punishes “prevaricacion” or betrayal of trust by an
attorney. Prevarication – dereliction of duty where one violates
his oath of office
BRIBERY AND CORRUPTION
Direct bribery – “in connection with the performance of his
official duties”
Indirect bribery - given by “reason of his office”
In direct bribery, mere promises are sufficient consideration.
This is commonly termed “Kaliwaan” where you do not give
anything unless the result you wanted is delivered. The crime
of bribery is consummated upon the agreement or the
acceptance to do something. On the other hand, an mere
promise does not constitute as indirect bribery because you
are giving something to a person because of his office without
necessarily asking something from him.
Indirect bribery in relation to Republic Act 1319
Corrupt practice – “the gift should be a considerable amount,
considering circumstances such as relationship and social
status
[Courtesy call – necessary for coordination among government
agencies for smooth performance of public functions, but a
businessman has no business being courteous to Fiscal,
ganern] [insert joke about attorney’s fish, attorney’s chicken,
and ang judge kay di na mangluhod kay basin makatapad silag
drug lord]
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Elements of Direct Bribery
1. The offender is a public officer;
2. The offender accepts an offer, promise, or gift or present by
himself or through another;
3. Such offer or promise or gift or present be received by the
public officer with a view of committing some crime, or in
consideration of the execution of an act which does not
constitute a crime but the act must be unjust, or to refrain from
doing something which is it is his official duty to do; and
4. The act which the officer agrees to perform
Note: Bribery is committed by the giver and corruption is
committed by the recipient.
Pozar vs CA, Oct 23, 1984
Direct bribery from indirect bribery:
In both crimes, the public officer receives a gift. While in direct
bribery, there is an agreement between the public officer and
the giver of the gift, in indirect bribery, usually no such
agreement exists. In direct bribery, the offender agrees to
perform or performs an act or refrains from doing something,
because of the gift or promise; in direct bribery it is not
necessary that the officer should do any particular act or even
promise to do an act as it is enough that he accepts gifts
offered to him by reason of his office.
Bribery involves moral turpitude
As defined in Black’s Law Dictionary, moral turpitude means
“an act of baseness, vileness, or depravity in the private duties
which a man owes his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty
between man and woman or conduct contrary to justice,
honesty, modesty or good morals”.
Not every criminal act involves moral turpitude. In bribery,
moral turpitude can be inferred from the third element.
A person convicted of bribery can no longer run for office for a
certain duration.
Pozar vs. CA
Good faith is a defense in corruption
The accused in this case was a foreigner who is unfamiliar with
the rules. He alleged that he left money for photocopying
expenses, and not as a gift. For lack of criminal intent, he was
acquitted.
Formelliza vs Sandiganbaya, Mar. 8, 1988
Meaning of “receiving” in bribery
The essential ingredient of direct bribery is that the public
officer must have accepted the gift or material consideration.
There must be a clear intention on the part of the public officer
to take the gift and consider the same as his own property from
then on, such as putting away the gift for safekeeping or
pocketing the same. Mere physical receipt unaccompanied by
any other sign, circumstance or act is not enough to show that
the crime of indirect bribery has been committed. To hold
otherwise will lead to unscrupulous individuals framing up
public officials simply by putting within their physical custody
money or property.
[DepEd supervisor and teacher who is an applicant for
promotion met in a fast food chain. The teacher gave an
envelope under the table; the supervisor’s reflex was to accept
the thing; supervisor was arrested. Defense: they did not agree
about the giving, merely accepted because something was
given. There was no evidence of prior negotiation]
PP vs Francisco, March 26, 1924
Bribery from Robbery
Accused, a sanitary inspector, discovered dirty lard from
victim’s store. He threatened to take it to the municipal building
unless the victim pays him an amount. The victim paid, but
later the accused returned with a policeman when the victim
told others about the incident. As the lard was already clean,
accused secretly dropped cigarette ashes thereto. Bribery is
voluntary while robbery is neither voluntary nor mutual.
US vs Jader, July 18, 1902
Bribery from estafa
A municipal official who demands and exacts gifts from
persons under promise to relieve them from certain obligations
to the municipality is guilty of estafa and not bribery.
QUALIFIED BRIBERY
RA7659 penalizes the crime of qualified bribery as Art. 211-A,
if the public official is entrusted with law enforcement and he
refrain from arresting or prosecuting an offender who has
committed a crime punishable by RP or death in consideration
of an offer, promise, gift. He shall suffer the penalty of the
crime not prosecuted.
If it was he who demands money, his penalty would be death
(amendment under RA 9346 abolished death penalty).
For the first time, qualified bribery was defined in RA 7659
since this law aside from repealing death penalty has also
defined new crimes.
Now, we have qualified bribery as Art211-A. If a police officer
or an NBI who is in charge of law enforcement commits this
crime, he will be charged for the crime not prosecuted. He will
become the substitute.
Why didn’t they think about this when they charged De Lima?
Because there is a difficulty in the case of De Lima since the
charge was under Section5 of RA9165 and such provision
requires corpus delicti of the crime. There is no corpus delicti in
her case because those who testified against De Lima where
not even convicted for drugs but for other crimes. So how can
they be in conspiracy with De Lima when they were not even
convicted for drugs? They should have thought of qualified
bribery.
FRAUDS AND ILLEGAL EXACTIONS
The crimes penalized under Arts. 213 to 216 also fall under the
crimes punished as graft and corrupt practices act under RA
3019.
Because of the low penalty involved here, most of the crimes
are prosecuted under RA3019 because fraud and illegal
exactions are committed by public officials who have the
authority to collect or to handle money or award certain
contracts involving money, like the treasurer who collects
rental in the market.
This is the reason why jurisprudence here is very limited. This
will be discussed fully when we go to RA 3019.
Art. 213
Art. 213 can be committed only by:
1. A public officer who shall have official capacity to deal
with persons in furnishing supplies, making of
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contracts, or adjustments or settlement of accounts
relating to public property or funds;
2. A public officer entrusted of the collection of taxes,
licenses, fees, and other imposts
This is properly known as illegal exaction. This can only be
committed by persons who have authority to collect but that
person must not have the authority to compromise like the BIR
or Customs. Because if the law allows him to compromise,
there will be no illegal exaction.
Art. 213, Par. 2
3 Ways of committing Illegal Exaction:
1. Demanding an amount different than what the law
authorizes; (unless the person is authorized by law or
ordinance to make compromises)
2. Failing voluntarily to issue a receipt;
3. Collecting or receiving things of different nature from
that required
3rd mean: For example, a vendor in Carbon instead of paying
P200 daily rent, pays cellphone or shirt. That would fall under
illegal exaction because it is a payment of things different from
what is required by law. It does not matter whether it is of
higher amount or lower, provided it is different. So, it must be
paid in cash.
Art. 214- Other frauds; additional penalties of temporary or
absolute special disqualifications for crimes punished under
Title 10 committed by public officer who took advantage of his
official position.
Art. 215- Prohibited transactions- the transaction has to be
done within his jurisdiction
Art. 216- Prohibited interest- the public officer has the official
duty to intervene in the business or contract
Article 214 to 216 to be discussed in RA 3019.
MALVERSATION OF PUBLIC FUNDS OR PROPERTY (Art.
217)
Elements:
1. Offender is an accountable officer;
2. Public funds or property are involved;
3. he has custody by reason of his office;
4. there is misappropriation (either by himself or by
another)
5. committed through intent or negligence
When we say accountable officer, the meaning of this has
already expanded and when we say that the funds or property
is public, that too has already been expanded. Custody by
reason of his office as an element has already been expanded
to include those persons who have custody even though it is
not by reason of a public office. Also, even if the funds are not
exactly coming from the government, meaning it is not public,
there may still be malversation.
All the elements have been expanded. Hence, it is not enough
to know the elements but you must read jurisprudence to know
what exactly these elements cover.
An accountable officer may include those persons who
distribute 4Ps and this money do not pass the treasurer and for
example, the money was sent through Palawan. In that case,
the public funds are now in the custody of Palawan. So, if it
gets lost, can it be malversation?
Another example is if you donated to DSWD. Here, there is
money that is not strictly public funds because it comes from
your pocket. But once it was given with the intention of using it
for public purpose, if it is misappropriated, then there can now
be malversation.
MALVERSATION FROM ESTAFA:
1) Malversation
a) Offender acts in his public capacity.
b) Public Funds
c) Damage not an element
d) No need for demand
2) Estafa –
a) Offender acts in his private capacity, though offender
may commit estafa by pretending to possess public
office
b) Private funds
In estafa, even if he is a public official if he acts in his private
capacity then it is estafa. So, if he the public officer
misrepresents himself to collect money, that would be estafa
pretending to possess power or qualification.
In malversation, damage is not an element. So if the official
reimburses the funds malversed, that would still be
malversation. In Lumauig, SC said reimbursement will not
negate criminal liability because damage is not an element. It
will only be taken as a mitigating circumstance.
When can a private person may commit malversation?
1) When he conspires with a public official in the
malversation
2) When he is an accomplice or accessory to malversation
3) When he is entrusted with the custody of public funds and
misappropriates the same
Example: Palawan Express example
If he has no custody, then it can be theft or qualified theft.
4) When he is made the depositary of funds or property
seized or attached by the gov’t order even if the property
belongs to a private person.
Example: Receivership
The receiver can be liable provided that the funds are
attached by the government. If these are strictly private
funds, it cannot be malversation. That could only be
qualified theft because of the abuse of trust and
confidence.
N.B. Malversation can be committed through negligence. For
example, treasurer left the money to another person and that
person ran away. That is malversation even if the public official
did not benefit from it. Was there misappropriation? Yes,
through another person.
Malversation is mala in se hence, good faith can be defense.
Do not confuse negligence with good faith. Malversation can
be committed through negligence but good faith is still a
defense.
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For example, there is an armored car who went to the
Treasurer's Office to collect the money and the treasurer gave
it to them only to find out that they were not from the bank.
There is still malversation and in this case, good faith can be a
defense.
UPDATES
Lumauig vs PP, 166680, July 7, 2014
Although this case does not involve malversation of public
funds under Article 217 of the RPC but rather failure to render
an account under Article 218, the same reasoning may be
applied to the return or full restitution of the funds that were
previously unliquidated in considering the same as a mitigating
circumstance in favor of petitioner.
The differences between the elements of these two offenses
imply that the evidence to establish the guilt or innocence of
the accused would differ in each case. Petitioner's acquittal in
the anti- graft case provides no refuge for him in the present
case given the differences between the elements of the two
offenses. Prior demand to liquidate is not a requisite for
conviction under the RPC.
For example, if the charge is under RA3019,3(e). One element
there is you caused damage in the government. If the person is
convicted or acquitted in RA3019, such prosecution will not
constitute double jeopardy because the elements are different.
However, bribery is also punished in RA3019 and the acquittal
in bribery under RA3019 may operate to extinguish criminal
liability under RPC because you have the same case with the
same elements.
But if it is bribery under RPC and RA3019,3(e), they can go
together because the elements are different.
MALVERSATION FROM TECHNICAL MALVERSATION
(Article 220)
Technical malversation is illegal use of public funds. There is
public funds but it was used for a different purpose. It was not
malversed or misappropriated. The offender here probably did
not profit but it is still penalized. For example, construction of a
hospital instead of a bridge. It is still a crime even if it was put
to a better use. Once public fund is already allocated for a
particular purpose, it cannot be spent for another purpose
without realignment or reallocation of funds through law or
ordinance.
Parungao vs Sandiganbayan, G.R. No. 96025, May 15, 1992
May the Sandiganbayan, after finding that a municipal
treasurer charged with malversation of public funds is not guilty
thereof, nevertheless convict him, in the same criminal case for
illegal use of public funds?
No, Technical malversation is not a crime necessarily included
in malversation. Their elements are not the same.
Article 221- Failure to deliver public funds or property
There must be an obligation to pay from funds in his
possession or to deliver property in his custody or under his
administration.
This could be committed by a police officer, who after retiring
failed to surrender his firearms.
INFIDELITY OF PUBLIC OFFICERS
1. infidelity in the custody of prisoners;
2. infidelity in the custody of documents;
3. revelation of secrets
In the first type, the prisoner need not be convicted. The
second type is a broad crime. It can refer to documents which
are secret such as documents involving crimes against minors
which are supposed to be confidential. If these are made
known, then that can be a crime.
EVASION, REMOVAL, AND INFIDELITY
Evasion of service of sentence is committed by the convicted
prisoner;
Removal is committed by any person, prisoner maybe
convicted or not;
Infidelity is committed by an officer having custody (Art 223) or
by a person having custody (Art. 225); could be a convicted or
non- convicted prisoner.
In infidelity, the person is a public officer while in removal, it
can be someone who is in connivance with the public officer
but he does not have custody.
OFFENSES IN RELATION TO ELECTIVE OFFICE
Art. 234. Refusal to discharge elective office
Art. 236. Anticipation of duties of a public office
Art. 237. Prolonging performance of duties and powers
Art. 238. Abandonment of office or position
If the case of Garcia attains finality, this case can be
committed.
USURPATION (Art.239-241)
1. Usurpation of Legislative functions- can be done by
any person; lawmaking powers
2. Usurpation of Executive functions- can only be
committed by a judge and not by any other person.
That is why we have very specific crimes here.
3. Usurpation of Judicial functions
The function of a barangay captain does not usurp judicial
powers as it is only limited to conciliation, arbitration, and
mediation. The barangay captain is not supposed to award
damages or to find the guilt of a person because that is already
the duty of a judge. However, it does not mean to say that the
barangay captain can no longer execute a compromise. Under
the LGC, the barangay captain can execute a judgment based
on a compromise agreement.
DISOBEYING REQUESTS FOR DISQUALIFICATION
(Art.242)
A mayor was disqualified by Sandiganbayan. SB will have to
communicate this with DILG because the SB could not order
the mayor to vacate. SB will have to request DILG. Failure to
obey such request is a crime.
ORDERS OR REQUEST BY EXECUTIVE OFFICERS TO
ANY JUDICIAL AUTHORITY (Art.243)
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Recent incident by Tomas Osmena with the sheriff, if it was
found that the land involved was covered by the order of the
judge, then this crime could be committed.
News about Sarah Duterte and the sheriff, it could not be direct
assault because a sheriff is not a person in authority or agent
of a person in authority. This crime will be more appropriate.
TITLE EIGHT – CRIMES AGAINST PERSONS
(common crimes; more likely to be asked in the final exam)
In crimes against persons, these may result to death or
physical injuries or other things.
If they result to death, these are the 4 crimes that may be
committed:
1. Infanticide
2. Parricide
3. Murder
4. Homicide
Infanticide
victim must be less than 3 days old.
If 3 days old and above – crime is parricide or murder
If victim is expelled and is less than 6 months old, crime is
abortion if he was born alive.
If child is born dead and offender tried to kill him, offender is
guilty of impossible crime.
Caveat: Fiscal is not sure if the immediately preceding 2
sentences are correct.
Fiscal: If victim is expelled and is not capable of life, there is
abortion.
Parricide
victim is spouse, ascendant or descendant
Keyword: SAD
Spouse – must be legitimate, not common law
Ascendant / Descendant – legitimate, direct
Parent – child – need not be legitimate, by blood
Does not cover: brother, sisters, uncles – collateral
line
Murder
needs a qualifying circumstance
Qualifying circumstance of murder: (any)
1) With treachery, taking advantage of superior strength, with
the aid of armed men, or employing means to weaken the
defense or of means or persons to insure or afford
impunity.
2) In consideration of a price, reward or promise.
3) By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a street
car or locomotive, fall of an airship, by means of motor
vehicles, or with the use of any other means involving
great waste and ruin.
4) On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public
calamity.
5) With evident premeditation.
6) With cruelty, by deliberately and inhumanly augmenting
the suffering of the victim, or outraging or scoffing at his
person or corpse.
TN: Qualifying circumstance must be specifically sought. If it is
not specifically sought or is merely incidental in the
commission of the offense, there can be NO murder.
There are 6 groups of qualifying circumstances.
Example: in first group - treachery, taking advantage of
superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to
insure or afford impunity, each is not taken as an individual
qualifying circumstance. If all of these are present, they will
only be counted as one. So, if there is treachery, there is aid of
armed men, there is employing means to weaken the defense,
they will only be taken as one to qualify the killing to murder.
The others will not anymore be counted as aggravating.
Augmenting the suffering of the victim
This is not an individual crime. The only time that it will become
another crime is if constitutes torture, as defined under the
Torture Law. If the torture is not done by a public official or not
done for the purpose of getting a confession, etc., it will not
become an independent crime of torture. It will not be a crime
in itself. It can, however, be a qualifying circumstance, not a
separate crime. However, if the cruelty constitutes torture, as
defined under SPL, then there will be murder aside from
torture, as a separate crime.
PP vs. Tadeo
Qualifying: Treachery by sudden attack
2 requisites: (P-A)
1. At the time of the attack, the victim was not in a
position to defend himself;
2. The offender consciously adopted the particular
means, method, form or attack employed by him.
Any qualifying circumstance, in order to be appreciated as a
qualifying circumstance, for example, treachery, the victim
must not be in a position to defend himself; and that particular
position of the victim must be specifically or consciously sought
or adopted as a means to ensure the killing. If it just happened
that the victim turned around at the time the fatal blow was
delivered, then it might not be treachery.
The fact alone that the wound inflicted was located at the back
portion or anterior portion of the body of the victim does not per
se mean that there is treachery. For treachery to be present as
qualifying, the means should be consciously adopted to ensure
killing.
The second requisite does not only apply to treachery. It also
applies to other qualifying circumstances.
PP vs. Galura (cantharides case)
Qualifying circumstance must be specifically sought for by the
accused for the purpose of killing.
Facts: Food was placed with cantharides (poison). As a result
of the chemical, the victim was poisoned and died. The
offender was charged with murder.
SC: No murder. Although the victim died of poisoning, the use
of the chemical was not particularly sought in order to kill. It
was not used as a poison but rather for another purpose.
Poison is not a qualifying because of the second requisite.
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TN: If serious physical injuries resulted, crime would be Art.
264.
PD 1613 applies if killing is on the occasion of arson.
Night time
This is not a qualifying circumstance.
If night time is specifically sought in order that the victim will
not be able to put up a defense or in order to ensure or afford
impunity, then the night time will be similar to treachery or
employing means to weaken the defense or means to ensure
or afford impunity. So if this happens, even if night time per se
is not among those enumerated, then it can be qualifying.
In consideration of a price, reward or promise
Here, most likely, the killing is premeditated. In consideration of
a price, reward or promise will become the qualifying and the
premeditation will become the ordinary aggravating or vice
versa.
If treachery was used, then treachery can also become an
ordinary aggravating circumstance. Most of the qualifying
circumstances are also ordinary aggravating circumstances.
So, if 1-6 groups of qualifying circumstances are present, one
will qualify, the others will be treated as ordinary aggravating
circumstances.
Fiscal: In making the information, you lump everything, all the
circumstances. Example: with treachery and evident
premeditation, and in consideration of a price, reward or
promise, Juan killed Pedro. Just choose among the
circumstances. It is the court now which will appreciate the
circumstances if proven. One to qualify, any other as
aggravating. What’s important is there is at least one. But for
the first group, even if you name them all, that would be
counted as one. If 1-6 are present, it’s up to the court what to
use as qualifying and to count the five others as ordinary
aggravating. In making the information, you do not specify
which is qualifying and aggravating. You just allege all of them.
Circumstances must be lumped in the information. Do not
designate what kind of modifying circumstances are present.
PP vs. Jumawid
Treachery: How young must the victim be in order that tender
age may be appreciated as treachery to qualify the act of killing
to murder?
Treachery (unable to put up a defense) was appreciated on
account of victim’s minority, considering that she was 16 when
attacked.
It cited PP vs. De Guzman which found treachery because the
victim was 17.
Fiscal: This is a case to case basis. What if the victim is a huge
person and the offender is relatively smaller? So I would say
it’s case to case. But that’s how young the SC has ruled for a
victim to be unable to put up a defense.
PP vs. Tadeo
Qualifying: Evident premeditation
3 requisites: (D-T-C)
1. Offender was determined to commit a crime;
2. There was sufficient lapse of time between the
determination and the execution of the act to allow him to
reflect upon the consequences of his act and his conscience to
overcome his will;
3. Act showing that the offender clung to his determination.
All these 3 must be present in order for evident premeditation
to be appreciated.
If he just thought of it because, let’s say, there was a fight, and
during the fight he was determined to kill, and then and there
killed the adversary, that would not be evident premeditation. It
is possible that there is some kind of retaliation or a major
reaction but that would not qualify as evident premeditation as
qualifying circumstance. There should be a considerable time.
No hard and fast rule on sufficient lapse of time so long as
there was enough time for him to rethink.
PP vs. Abarca
Facts: Khingsley Koh and Jenny, the wife of accused
Francisco Abarca, had illicit relationship. The illicit relationship
apparently began while the accused was in Manila reviewing
for the 1983 Bar Examinations. Upon arriving in their residence
in Tacloban, Leyte, the accused found his wife, Jenny, and
Koh in the act of sexual intercourse. When the wife and Koh
noticed the accused, the wife pushed her paramour who got
his revolver. The accused who was then peeping above the
built-in cabinet in their room jumped and ran away. He did not
do anything at that time. The accused then went to look for a
firearm at Tacloban City. He proceeded to the "mahjong
session" as it was the "hangout" of Koh. The accused found
Koh playing mahjong. He fired at Koh three times with his rifle,
killing the latter.
SC: Time lapsed was still considered sufficient, not for the
purpose of saying that there was evident premeditation but for
the purpose of saying that Art. 247 still applies.
Art. 247 was applied, in which case, he was not held liable for
parricide. He was only found guilty for death under exceptional
circumstances.
Homicide
If not infanticide, parricide or murder, the crime is homicide.
CRIME AGAINST PERSONS
A. Victim is killed: regardless of intent
1. Homicide – with or without intent to kill; maybe committed
through reckless or simple imprudence
2. Murder – if qualifying circumstance/s is/are present
3. Infanticide – if victim is less than 3 days old; because of
age
4. Parricide – if victim is ascendant / descendant or
legitimate spouse; because of relationship
B. Victim is NOT killed: need to distinguish
Without intent to kill
1. Physical injuries – serious, less serious, slight; mutilation
2. Slander by deed – no physical injury but there is public
humiliation (slapping to embarrass); objective is to
humiliate the victim
3. Maltreatment – no physical injury nor public humiliation
(slapping in a private setting); objective is not to humiliate
but maltreat the victim
Technically, slander by deed and maltreatment are not the
same although punished as one because in slander by deed
the objective is to humiliate.
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With intent to kill
a. fatal injury – FRUSTRATED murder, homicide, parricide,
infanticide
b. Non-fatal injury or no injury – ATTEMPTED murder,
homicide, parricide, infanticide
Can there be crime of frustrated homicide through
reckless imprudence?
No, it would be inconsistent. Frustrated/attempted murder,
homicide, parricide, infanticide can only be committed when
there is intent to kill. Hence, it cannot be committed through
imprudence.
CRIME AGAINST PERSONS AND USE OF FIREARM
For frustrated stage, there must be a fatal wound.
For attempted stage, the firearm must be used; or at least
attempted to be fired.
For grave threats, threats must be clear.
Mere drawing of a firearm during a quarrel is only Other Light
Threats.
Fiscal: In case of a firearm, there must be an attempt to fire a
firearm. If no attempt to fire, no attempted case. If the firearm
was merely showed, no intent to kill, no injury, so no attempted
because the firearm was not used.
If there was a firearm, no attempt to fire it but was used to hit
someone in the head with intent to kill, it can only be attempted
homicide.
There is still use of firearm because the injury was inflicted with
the use of the firearm in hitting the head. But there is a
question on whether or not there was an intent to kill. If there
was an intent to kill, why didn’t he fire it? If there was an intent
to kill, let’s say it’s without a bullet, and the firearm was used to
hit the head of the victim, it can still be done. The use is not
necessarily to fire. If fired but “nikagar”, the fact alone that
there was pulling of the trigger, that would be enough as
attempted.
Art 254. Discharge of Firearm
The firearm is aimed, but there is no intent to kill and no injury.
No one died but there is firing of firearm. Since it must be
directed at another, it cannot be committed through
imprudence.
Is there a complex crime of discharge of firearm and serious or
less serious physical injuries? Yes. (Justice Javier)
If only slight physical injuries are inflicted, there are 2 crimes:
discharge and slight physical injuries. (Justice Javier)
Note that Discharge of firearm is a crime under RPC, not under
RA 10951, hence, can be complexed. Ladjaalam does not
apply. (RA 10591)
Illegal discharge vs. Alarms and Scandals
In alarms and scandals, the objective of the firing is to create
alarms and chaos but not necessarily directed towards
another.
In illegal discharge, the firearm is aimed but no evidence of
intent to kill, no injury caused e.g. a drunk person who fired his
firearm. In some reading materials, they say that, in illegal
discharge, you can actually complex it, can use Art 48.
Example, in strafing, the firing is aimed at a person, probably,
or at a house and somebody died. You cannot say that there
was an intent to kill that somebody who eventually died. If
there was an intent to kill and the victim sustained injuries,
there may be attempted homicide/murder.
However, the penalty is higher if crime is not intended. If it was
intended, probably attempted. If there was intent to injure but
no attempt to kill, the crime could be less serious or serious
physical injuries. If no intent to kill, in some reading materials,
there can be complexing, it’s possible that there could be an
ordinary complex crime of illegal discharge with serious or less
serious physical injuries which is actually a crime with higher
penalty compared to plainly serious or less serious physical
injuries.
ART. 254. DISCHARGE OF FIREARMS
SLIDES:
 The firearm is aimed, but there is no intent to kill.
Since it must be directed at another, it cannot be
committed through imprudence.
 Q: Is there a complex crime of discharge of firearm
and serious or less serious physical injuries?
A: Yes. (Justice Javier)
 If only slight physical injuries are inflicted, there are
two crimes:
1. Discharge of firearms, and
2. Slight physical injuries (Justice Javier)
 Note: Discharge of firearm is a crime under the RPC,
not under RA 10951, hence can be complexed.
Ladjaalam does apply.
DISCUSSION:
*We will talk about firearms later. Because in illegal discharge
of firearms, the firearm may not be a loose firearm. It can be a
legitimate firearm, but it can still be a crime.*
Q: Juan fired at someone who was inside the house of Pedro
and Pedro was injured. The injuries was less serious in nature.
There was no evidence of any intent to kill. What is the crime?
A: The crime is less serious physical injuries because Juan
intended to injure somebody and there was no intent to kill.
Q: If however Juan was firing indiscriminately, what is the
crime?
A: The crime would be alarms and scandals. It cannot be
illegal discharge because in illegal discharge, the gun is aimed
at someone, while in alarms and scandals, it is not aimed at
anyone.
ABORTION
SLIDES:
 Abortion is the killing of the fetus in the uterus, or the
expulsion of the fetus from the maternal womb which
results in the death of the fetus.
 Abortion is not a crime against the mother, but against
the child.
 Under the Philippine Constitution, the unborn child is
protected.
DISCUSSION:
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There are two kinds of abortion:
1. Intentional abortion
2. Unintentional abortion
ART. 256. INTENTIONAL ABORTION
SLIDES:
 Offender must know of the pregnancy; this specific
criminal intent is required in Art. 256.
 The person liable under this article is the person who
caused the abortion. The woman is liable under Art.
258 if she consented.
DISCUSSION:
Here, the offender must know of the pregnancy of the woman,
and the purpose is really to expel.
Important: If the purpose the abortion is to conceal a
perceived dishonor, the crime is still intentional abortion, but
the penalty would be lesser if performed by the mother or the
relative for the same purpose. It is thus a mitigating or
extenuating circumstance.
ART. 257. UNINTENTIONAL ABORTION
SLIDES:
 This may be committed even if the offender had no
knowledge of the pregnancy of the victim.
 This contemplates the use of force by another person,
not the woman herself.
 In unintentional abortion, there must be violence,
which must be intentionally exerted, but there is no
specific intent to cause the abortion. It cannot be
committed through intimidation.
DISCUSSION:
The only means of committing unintentional abortion is by
violence or force, which must be intentionally exerted.
Q: Pregnant Maria’s neighbor, Hannah, without knowledge of
the former’s pregnancy, always picks a fight with Maria. This
caused Maria sleepless nights. As a result of which, Maria
miscarriaged. Is Hannah liable for unintentional abortion?
A: No. Unintentional miscarriage cannot be committed by
intimidation. There must be the use of force or violence against
the pregnant woman.
CASE STUDY:
[These were in the slides, but were not discussed by Fiscal in
class]
A. Juan was having a quarrel with his mother, sister and
stepfather. In the heat of anger, he fired a single shot,
hitting all three. It turned out that his sister was
pregnant at the time, and by reason of her injuries,
her baby also died. Only the mother survived, even if
she sustained fatal wounds. What crime/s did Juan
commit? Give a brief discussion.
B. Pedro was driving his car recklessly one evening, and
hit a lady pedestrian, another old lady, and a small
boy. All 3 were fatally wounded, but survived. The
pedestrian was 7 months pregnant, and she
prematurely gave birth to the child. Two days after
being born, the baby died for unrelated causes. The
old lady turned out to be Pedro’s grandmother, and
the small boy was his half-brother. What crime/s
was/were committed by Pedro?
C. Would your answer be the same if Pedro had
intended to kill the pregnant woman?
DUEL
 A mere fight as a result of an agreement is not
necessarily a duel because a duel implies an
agreement to fight under determined conditions and
with the participation and intervention of seconds who
fix such conditions.
 Both combatants and seconds are punished.
 Seconds are punished as accomplices
MUTILATION
SLIDES:
 The lopping or clipping off of some part of the body
which is not susceptible to growth again. It must be
always intentional.
 Kinds of mutilation:
1. Intentional mutilation by depriving victim partially or totally,
of organ of reproduction
2. Intentional mutilation by lopping off any part of the body
other than the reproductive organ.
DISCUSSION:
There must be malice or intent to deprive the victim of the use
of a body part. Because remember, there are four kinds of
serious physical injuries. The second kind in particular is when
the victim loses a body part or an organ.
Q: When is the loss of a body part or an organ considered
mutilation and when is it considered serious physical injuries?
A: It is mutilation when there is intent to deprive the victim of
the use of a body part. Absent such intent, the crime is serious
physical injuries. Here, while there is intent to injure, the loss of
the body part is not in any way deliberate.
Example: During a fight, Pedro told Juan “I will chop chop you”.
This is indicative of Pedro’s intent to chop off a body part of
Juan. Here, if indeed a body part of Juan is chopped off, the
crime is not serious physical injuries, but mutilation. If however,
without such intent, and the hand of Juan was chopped off
during the fight, the crime is not mutilation but serious physical
injuries.
Important: If it involves an organ of reproduction, it is not
necessary that the organ be cut. But in the case of other body
parts, they must be cut, or at least, there must be an intent to
cut. If there is intent to cut but it was not actually cut, there is
attempted mutilation.
Q: What if the reproductive organ is already useless? Can the
owner be considered to have been deprived of its use if it is in
the first place, already useless? Can this be an impossible
crime?
A: [Unanswered. Joke ra tingali ni. Lol]
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Important: If the intent is not merely to deprive the use of a
body part, nor to injure, but to kill, but the killing was not
consummated, the crime is either attempted or frustrated
homicide.
Q. Would mutilation not be absorbed in the crime of murder if
the person was killed by cutting off a body part?
A: We go back again to the hierarchy of crimes: (a) special
complex crime (2) ordinary complex crime, (3) absorbed, (4)
separate crime.
If the intention is to kill the victim, as when the purpose of the
mutilation is to kill, then mutilation is absorbed in the crime of
homicide. However, if the intent to kill is not established, but
the intention to cut is, and the victim died, then there can be a
complex crime of mutilation resulting in homicide.
Be guided by the rules on abduction and rape (look at the
original intent to determine whether the crime is special
complex, ordinary complex, absorbed or constitutes a separate
crime)
Important: In complexing, the intent to mutilate must be clear.
Otherwise, it would be serious physical injuries. And
remember, serious physical injuries cannot be complexed with
homicide or murder.
PHYSICAL INJURIES
Art. 263. Serious Physical Injuries
SLIDES:
Serious physical injuries has four (4) kinds.
When is serious physical injuries qualified?
1. When it would have been parricide
2. When it would have been murder
DISCUSSION:
Physical injuries is a formal crime. It has no attempted or
frustrated stages. It is always consummated.
Three kinds of physical injuries:
1. Serious physical injuries
2. Less serious physical injuries
3. Slight physical injuries
Four kinds of serious physical injuries:
1. If by reason of the injury the victim could not use his sense
of sight, smell, or any of the senses.
2. A part of his body has been cut off, or rendered useless.
3. Deformity has been caused.
Three factors that must concur with deformity:
a. There is ugliness or deformity
b. Deformity or ugliness is visible
c. Deformity or ugliness will not heal naturally
Q: Juan was mugged which required him to undergo Belo
surgery, which surgery made him more handsome than
before the mugging. Is there deformity?
A: Yes, because the healing was not natural.
Q: Juan was boxed and his molars were damaged. Is
there deformity?
A: No, because it is not visible.
Q: But if for example, he was boxed and it improved his
nose, is there deformity?
A: Still no, because there is no ugliness.
4. If the victim was incapacitated to do his normal work within
a period of more than 30 days
Important: Regardless of the number of days, if the injury
causes deformity and it deprives him of his daily work, it is
automatically serious.
Art. 265. Less serious physical injuries
When the victim is incapacitated to perform work for 10-30
days.
Arty. 266. Slight physical injuries
 Incapacity for 1-9 days.
 Slight physical injuries cannot be complexed with
another crime.
 If committed against a minor, it is not automatically
child abuse under Art. 7610, unless it caused some
degree of psychological effect on the minor, or is
cruel. (PP v. Araneta)
 Intent to kill is not always manifested by utterances.
Other over acts may determine it.
RAPE
Two kinds of rape:
1. Carnal knowledge – can only be committed by a man
against a woman
2. Sexual assault – can be committed by anyone against
anyone (offender and victim could either be a man or a
woman)
Means adopted:
1. Through force, threat or intimidation
2. Offended is deprived of reason
3. Fraudulent machination or abuse of authority (a new
introduction to the rape law, RA 8353. Jurisprudence has
been nil on this mode of committing rape, because there is
a similar crime, which is seduction – where there is also
carnal knowledge and the means of committing a crime is
also fraud.)
4. Offended party is under 12 years old or is demented
Important: In relation to child abuse, even if there is no rape,
there could still be a violation of the Child Abuse Law if the
victim is a minor. However, if the act constitutes rape, the
prosecution should be done under the Revised Penal Code
and not under RA 7610.
Exception: If the crime is acts of lasciviousness and the victim
is a minor, because the penalty under the RA 7610 is higher
compared to the RPC.
xxx
Two stages of rape: Attempted and consummated
Even the slightest penetration will consummate the rape.
PP vs Acaac
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There will be no more frustrated rape by carnal knowledge. So
the stages for this kind of rape is only attempted, or
consummated. It is either there is penetration (slightest) or
there is none. SC said, when we say penetration, it does not
mean the mere epidermal touching. This only pertains to rape
by carnal knowledge.
PP vs Baleros
The accused hugged the victim and made her smell a chemical
that made her lose consciousness. Somebody was able to stop
the accused. The SC said that there was no attempted rape.
By merely kissing, touching, and holding, it will not yet give you
what is the intent, if the intent was to commit carnal knowledge.
So because there was no showing of such intent, then it
cannot be attempted stage. In order to commit attempted rape,
the overt acts have to be such that, it would show, w/o any
doubt, that the intention of the culprit is to have carnal
knowledge.
Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the
offender in performing an act is not certain, meaning the nature
of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate offense,
which is not a juridical fact from the standpoint of the Penal
Code.
There is absolutely no dispute about the absence of sexual
intercourse or carnal knowledge in the present case. The next
question that thus comes to the fore is whether or not the act of
the petitioner, i.e., the pressing of a chemical-soaked cloth
while on top of Malou, constitutes an overt act of rape.
In order to constitute attempted rape, the acts should show the
intent, which must be to have carnal knowledge. Touching here
and there can constitute acts of lasciviousness, but there can
be no attempted rape YET.
But what is the difference between acts of lasciviousness
from unjust vexation?
1. Acts of Lasiciviousness - if there is no showing of such
intent to have carnal knowledge, but there is showing of
lewd designs.
2. Unjust Vexation - if you cannot see the lewd designs, like
doing of an act for the purpose of satisfying of a malicious
of lascivious design, neither the intent of carnal knowledge
Instances when the penalty is higher when rape is
committed:
Qualified Rape, under Article 266-B, RPC
Article 266-B. Penalty. - Rape under paragraph 1 of the next
preceding article shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be
reclusion perpetua to death. When by reason or on the
occasion of the rape, the victim has become insane, the
penalty shall become reclusion perpetua to death.
When the rape is attempted and a homicide is committed by
reason or on the occasion thereof, the penalty shall be
reclusion perpetua to death.
When by reason or on the occasion of the rape, homicide is
committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following aggravating/qualifying
circumstances:
1. When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the
victim;
2. When the victim is under the custody of the police or
military authorities or any law enforcement or penal
institution;
3. When the rape is committed in full view of the spouse,
parent, any of the children or other relatives within the
third civil degree of consanguinity;
4. When the victim is a religious engaged in legitimate
religious vocation or calling and is personally known to be
such by the offender before or at the time of the
commission of the crime;
5. When the victim is a child below seven (7) years old;
6. When the offender knows that he is afflicted with the
Human Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is
transmitted to the victim;
7. When committed by any member of the Armed Forces of
the Philippines or para-military units thereof or the
Philippine National Police or any law enforcement agency
or penal institution, when the offender took advantage of
his position to facilitate the commission of the crime;
8. When by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation or disability;
9. When the offender knew of the pregnancy of the offended
party at the time of the commission of the crime; and
10. When the offender knew of the mental disability, emotional
disorder and/or physical handicap of the offended party at
the time of the commission of the crime.
Rape under paragraph 2 of the next preceding article shall be
punished by prision mayor.
Whenever the rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be prision
mayor to reclusion temporal.
When by reason or on the occasion of the rape, the victim has
become insane, the penalty shall be reclusion temporal.
When the rape is attempted and a homicide is committed by
reason or on the occasion thereof, the penalty shall be
reclusion temporal to reclusion perpetua.
When by reason or on the occasion of the rape, homicide is
committed, the penalty shall be reclusion perpetua.
Reclusion temporal shall be imposed if the rape is committed
with any of the ten aggravating/ qualifying circumstances
mentioned in this article.
TN: MAY A WOMAN COMMIT RAPE?
YES, by carnal knowledge if she is a conspirator.
Recall: A model who asked her boyfriend to kidnap, rape, and
kill the victim. It turned out that she was the brains of the crime.
She was also charged with rape with homicide because she
was liable as a conspirator.
Degree of Desistance required: It does not have to be
tenacious.
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Constructive force:
Even if there is no violence or intimidation, as long as the rapist
has a moral ascendancy over the victim, then the degree of
violence or force required may not be as grave or intense. The
fact alone that there is a moral ascendancy would already
suffice to intimidate the victim. There is no need to physically
or brutally assault the victim.
There is no need for a medical certificate in order that a rape
case can be filed. Because in constructive force, it is possible
that there is no physical injuries inflicted. Also, because the SC
said that the slightest penetration will already consummate the
rape, then it is possible that there is no full penetration. There
may be no lacerations, and it does not matter.
Recall in Evidence that the testimony of a woman is sufficient,
even if there are other witnesses. (But the Woman’s Honor
principle has been abandoned by the Supreme Court.) In one
case, the SC acquitted the accused in a rape case. Even if the
SC said that the slightest penetration consummates the crime,
it also clarified that mere epidermal touching of the skin will not
consummate the crime.
It is not necessary that there be full penetration because it has
been revealed nowadays that many of the victims can be as
young as 6 years old. Full penetration is not possible for young
victims. In such cases, it does not mean that there is no more
rape. The “6 o’clock” findings, etc. do not matter anymore. In
here, there is slight penetration, and it is not just epidermal
touching. Also, there are findings that not all women have a
hymen, or a crescent hymen (only one part has a hymen).
In one case, however, the SC acquitted the accused when the
victim alleged that she was repeatedly raped and she bled, but
the medical certificate did not find any lacerations. Although
the lacerations are not considered generally, in this particular
case, the acquittal was not based on the absence of the rape,
but because they cannot believe the testimony of the victim
which raised the reasonable doubt.
Swiping is considered epidermal touching, unless there was
intent to penetrate.
If the victim is a transgender – it will never be rape by carnal
knowledge. It can only be rape by sexual assault. The
accepted definition of a woman is a naturally born woman.
Special Complex Crimes Involving Rape
1. Robbery with Rape – main objective is to rob
2. Kidnapping with Rape – main objective is to kidnap
3. Rape with Homicide – main objective is to rape, and the
killing happened afterwards
Forcible Abduction with Rape – an ordinary complex crime
What if the killing happened first? Technically, it would be
murder or homicide. The other crime would be simply an
impossible crime.
How many counts of rape would there be if a a group of 5
men conspired to abduct the victim and each raped her?
Assuming that the abduction was (1) not for deprivation of
liberty and (2) not for raping, otherwise the abduction would be
absorbed:
There will only be 1 complex crime of forcible abduction with
rape wherein all accused will be liable as conspirators. As for
the 2nd, 3rd, 4th, and 5th rape, it will simply be rape. For each
rape, all of them would be liable.
Treachery in rape
The treachery, in this case, is a modified circumstance that
only applies in crimes against persons, except for robbery with
homicide. However, treachery can now be appreciated
because rape is now a crime against persons. Although when
this case was ruled, rape was still a crime against chastity.
There is no definite ruling yet, but applying common sense,
rape usually involves treachery. It’s kind of inherent in the
crime. Therefore, we do not normally view it separately as a
modifying circumstance.
Treachery, however, is not always part of rape, such as when
the victim is a minor or deprived of reason.
In forcible abduction with rape, it would seem that there is
abuse of strength or treachery, but there is no definite ruling by
SC on the application of treachery as a modifying
circumstance.
Aid of armed men
It can be applied as a modifying circumstance because it is not
usually used in rape.
Pp vs. Amaros
In a case where a man promised to give her a book and then
raped her, there was forcible abduction with rape. The reason
why it’s forcible is because the victim was 7 years old.
TN: There is no rape with forcible abduction with rape. It’s
always forcible abduction with rape. The latter is complexed
under Art. 48, specifically that 1 crime (forcible abduction) was
used as a means to commit the other (rape). This is not based
on the first paragraph where it was a single act that resulted to
2 crimes.
Also, in complexing there are 2 conjunctions: “with” and
“through.” But, if we use “in relation to,” that may not be
complexed because it means there are 2 laws. The act is
punished under 1 law, but the penalty is in another law.
TITLE NINE – CRIMES AGAINST PERSONAL
LIBERTY AND SECURITY
Chapter One – Crimes against Liberty
Section 1 – Illegal detention
Article 267 – Kidnapping and serious illegal detention
 Arbitrary Detention – committed by a public official
and there is no legal ground for arrest
 Forcible Abduction is with lewd designs
 Grave coercion- the taking is to force the giving of
something except give money
ILLEGAL DETENTION
Normally committed by a private individual however, public
officials can commit it also if the objective is not anymore in
line with their public functions.
e.g. Korean National brought in Camp Crame and killed. The
accused were police officers but it was not a crime for arbitrary
detention but kidnapping for ransom with homicide. It can only
be arbitrary detention if public official is doing his duty but the
arrest was without legal grounds
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Illegal detention carries a higher penalty compared to arbitrary
detention. If the deprivation of liberty or taking/asportation is
done with lewd designs then the crime is Forcible Abduction.
It would seem there is a graver criminal perversion for the
taking is now not merely to deprive the person’s liberty but with
lewd designs it would seem that the crime will become lower. If
the purpose is not to deprive the person’s liberty but there is
intimidation it could be grave coercion.
KIDNAPPING
It does not necessarily mean that when you say kidnapping
there is a taking of one person from one place to another.
Since in ART. 267 punishes Kidnapping and Illegal
Detention, the important element of this crime is not the taking
but the deprivation of liberty. It can even happen that there is
violation Art. 267 even if there is NO TAKNIG AT ALL.
e.g. For nonpayment of rentals the land lady padlocks the
tenant inside the room, as a way of forcing the tenant to pay.
There is no taking but there is kidnapping and illegal detention
as defined in Art. 267. It Is Kidnapping for ransom since the
purpose of the deprivation is for the payment of money.
Two kinds
-Serious Kidnapping- Reclusion Perpetua
-Slight Kidnapping- penalty Reclusion Temporal
Serious Illegal Detention
* Art 267 Kidnapping when serious:
1. If the kidnapping or detention shall have lasted more than 3
days (3 days per RA 7659(1993), 5 day per RA 1084(1954)
and RA 18(1946)).
2. If it shall be committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon
the person kidnapped or detained; or if threats to kill him have
been made
4. if the person kidnapped or detained shall be a minor, female
or public officer
Amendment introduced in the New Death Penalty law (RA
7659).
*PP V Patlonag (GR 208682) (July 7, 2016)
RA 7659 provides that death penalty shall be imposed if ht e
motive of the kidnappers is to extort ransom for release of the
victim although none of the 4 circumstances mentioned under
Par. 4 of the elements of kidnapping were present.
Even if the 4 circumstances in Art 267 were not present BUT
the purpose of detention was for ransom it will be automatically
and always considered as Serious Illegal Detention.
*Kidnapping for ransom is always serious
*Penalty is reclusion perpetua in lieu of death penalty due to
passage of RA 9346
* If the victim detained is a minor, female or public officer
detention is serious even if it is for less than 3 days.
It does not matter even if the detention only lasted for a few
minutes.
If there were serious physical injuries inflicted or threats to kill
automatically even if the Victim is not a minor, female or public
officer automatically the crime will be Serious illegal
Detention.
e.g. Vhong Navarro Case- detained in the condo for an hour or
less but there was serious physical injuries inflicted on him.
*Kidnapping under Art 267 cannot be committed by a parent
if they are the principal by execution on his own child. The
crime could fall under Art 270 and ART 271.
But if the father conspires with other people to gain money it is
still possible that a parent can be liable under Art. 267 due to
conspiracy but only possible if the victim is not a minor.
CRIME COMMITED IF THE VICTIM IS MINOR
*Art 270- offender is entrusted with custody and refuses to
return minor.
*Case PP v Bondoc (May 23,2014)
*Art 271- offender induces the minor to abandon his home.
*If the victim is a minor, the penalty is Reclusion Perpetua,
whether the child was snatched or taken(Art 267) or received
by the accused to whom custody was entrusted(Art 270),
unless the offender be the father or mother, in which case the
penalty is Arresto Mayor.
Meaning of deprivation of liberty
2 important elements of Kidnapping
*PP v Benedicto Ramos (GR 118570) (Oct 12 1998)
There must be an actual deprivation of the victim’s liberty
coupled with the indubitable proof of that intent on the part of
the malefactor to effect such restraint of the offended party’s
liberty.
*The term“actual deprivation of liberty”consists not only of
placing a person in an enclosure but also of detaining a person
depriving him in any manner of liberty.”
Intent is important without intent it’s possible there is no crime.
If there is no actual deprivation but there is an intent there
could be attempted kidnapping.
*PP v Madsali (GR 179570) (Feb 4,2010)
Victim was fetching water when accused arrived and took her
to the forest against her will.
*Serious illegal detention consists not only of placing a person
in an enclosure but also of detaining or depriving him in any
manner of his liberty.
*Although AAA was not actually confined in an enclosed place,
she was clearly restrained and deprived of her liberty,because
she is tied up and her mouth covered with a piece of cloth.
SC said even if she was not enclosed in a room there is still
kidnapping since there is deprivation of liberty.
KIDNAPPING FOR RANSOM
*Ransom – is the money, price, consideration paid or
demanded for redemption of a captured person or persons, a
payment that releases a person from captivity.
*In Kidnapping for ransom, voluntary release will not mitigate
the crime.
*When the creditor detains a debtor and releases him only
after the payment of the debt, there is kidnapping for ransom.
What makes kidnapping for ransom one for ransom is not that
there is money paid but that money is demanded. Even if
there is no money actually paid so long as money was the
consideration for kidnapping. The objective of the kidnapping
is money and money is demanded.
Consideration need not be money but something of value.
Love, lust, attraction can be taken as lewd designs and can
actually decrease the crime to forcible abduction.
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*SPECIAL COMPLEX CRIMES ARISING FROM
KIDNAPPING
1. Kidnapping with death
2. Kidnapping with rape
3. Kidnapping with Torture
*Kidnapping with Serious Physical Injuries (Regalado p. 490)
is NOT a special complex crime but is Serious Illegal
Detentions as implied in Art. 267 No.3). Torture may be
committed without xxx
But the serious physical injuries could aggravate the crime and
increase the penalty
Kidnapping With Death
This special complex crime can be denominated as Kidnapping
with Homicide or Kidnapping with Murder since the law did not
say that the crime should always be Kidnapping with Homicide.
It only says when there is death that accompanies the
kidnapping whether premeditated or incidental whether death
is by reason or on the occasion of kidnapping there is a special
complex crime without designating the name.
UNLIKE robbery with homicide. In Robbery with Homicide t is
the law itself that designated the special complex crime thus it
cannot be changed and renamed. Homicide is used in its
generic sense.
E.g. A young boy was kidnapped and in the course of
kidnapping he was killed because of the age of the victim it
would be murder and because of the kidnapping it WILL
ALWAYS be SPECIAL COMPLEX CRIME.
Reason: The Supreme Court said once there is death
regardless of whether the death is by reason of or on the
occasion of, whether the killing it is premeditated or just
merely incidental it does not matter. Once there is death
automatically the crime will be Special Complex. We do not
separate nor ordinary complex nor absorb.
*PP V Ramos (Oct 12, 1998)
*accused convicted of the special complex crime of
Kidnapping for Ransom with Murder
*The rule is, where the person kidnapped is killed in the course
of the detention, regardless of whether the killing was
purposely sought or merely an afterthought the kidnapping and
homicide or murder can no longer be complex under Art. 48,
as previously ruled, nor be treated as a separate crime, as
previously ruled, but shall be punished as a special complex
crime under the last paragraph of Art. 267.
*Although the crime of kidnapping for ransom was already
consummated with the mere demand by the accused for
ransom-even before the ransom was delivered- the deprivation
of liberty of the victim persisted and continued to persist until
such time that she was killed by accused while trying to
escape. Hence death of the victim maybe considered a
consequence of the kidnapping.
We DO NOT ORDINARY COMPLEX ANYMORE
*PP v Dionaldo, PP v Ebron, PP v Madsali
*Amendment under RA 7659 introduced the concept of special
complex crime of Kidnapping with murder or homicide. It
effectively eliminated the distinction drawn by courts between
cases where killing of the kidnapped victim was purposely
sought or merely an afterthought.
*The rule now is: where the person kidnapped is killed in the
detention regardless of whether the killing was purposely
sought or merely an afterthought the kidnapping and
homicide/murder can no longer be complex under Art. 48 as
previously ruled nor be treated as a separate crime as
previously ruled but shall be punished as a special complex
crime under the last paragraph of Art. 267, as amended by RA
7659.
*Kidnapping with murder or homicide
*PP V Dionaldo (luly 23, 2014)
*RA 7659 applies. It is always special complex. There is no
more separate crimes or ordinary complex crimes.
Kidnapping With Rape
*PP v Anticamara (June 8,2011)
*Only the rapist was held liable for Kidnapping with Rape; the
other offenders who did not know of the rape were liable only
for the Kidnapping
*PP v Madsali (Feb 4,2010)
* The conspirator who did not rape but watched the rape were
held liable for Kidnapping with Rape.
*PP v Larranaga, PP v Anticamara
*It shall be treated in the same manner as Robbery with Rape
Question answered by Fiscal
-If kidnapping with homicide was coupled with rape. It would
still be kidnapping with homicide. The rape will become
aggravating circumstance.
SC said: In special complex crimes there is only one crime and
all others will be absorbed. The only crimes that will not be
absorbed are crimes punished under special penal laws.
-When you say absorbed it does not necessarily means it will
be aggravating always.
It will be considered aggravating since in kidnapping with
homicide with rape not everybody will be liable for the rape but
everybody will be liable with the kidnapping with homicide.
Everybody even those who are not present so long as there is
conspiracy, the act of one is the act of all, will be liable for that
special complex crime.
e.g. A,B,C,D and E charged for Kidnapping with Homicide. A
and B are also charged with rape. Thus in the penalty imposed
only A and B will be affected by the special aggravating
circumstance of rape.
Technically the aggravating circumstance will not matter in so
far as the bail is concerned or sentencing of penalty is
concerned since kidnapping is already punished with
Reclusion Perpetua. Kidnapping with homicide is still punished
with Reclusion Perpetua. Kidnapping with homicide with rape
is still punished with Reclusion Perpetua
The difference comes in terms of parole. Those who are
convicted only for the kidnapping would be more likely to be
granted parole compared to those who are convicted for
kidnapping with homicide.
Those who were convicted for kidnapping with homicide would
be more likely granted parole compared to those who are
convicted for kidnapping with homicide with rape.
SC said: the doctrine that applies to Robbery with Homicide
applies to all other special complex crimes.
RULE IN ROBBERY WITH HOMICIDE:
If there is Robbery with Homicide with Rape the crime will not
be called Robbery with Rape but Robbery with Homicide
although both of them are special complex crimes.
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They will not also be separated if the primary objected is to
rob. When robbery is the primary objected it will automatically
be a special complex crime of Robbery with Homicide. As it
is named by law we cannot change the designation of crime.
The rape weill be absorbed and merely become aggravating.
*Robbery with Rape by a band
*If the robbery was committed by a band Art. 296(2) applies.
Rape being an “unforeseeable offense”in Robbery, only band
members who committed the rape or who knew of the rape but
did not prevent the same can be held liable, (Regalado) Other
band members will only be liable for Robbery in a Band.
*This was applied in PP v Canturia (June 22,1995)- non
participants who did not know were not held liable and PP v
Pizarras (Oct 30,1981)- one who held the leg but did not rape
was held liable.
Everybody will be liable for the crimes that are agreed upon but
only those who are present and did not try to prevent are the
ones who can be liable for crimes not agreed upon.
Regalado classified the other crimes as foreseeable and
nonforseeable. Applying Art. 296(2) if there is a band
(Quadrilla Theory) everybody will be liable for the foreseeable
crimes although not agreed upon. But those who were present
and did not try to prevent it despite being present will be liable
also for other crimes not agreed upon.
If there is a band and they agreed to commit robbery even if
the killing is not agreed upon by virtue of conspiracy everybody
is liable even those not present like the mastermind, the driver
of the vehicle outside. The crime will change into a special
complex crime of Robbery with Homicide.
This will also apply even if the crime is only Robbery with
Serious Physical Injuries.
But if there is Rape, and application of the law, it seems that
the mastermind, driver of get away car is not there, they will
not be liable for rape. Only those who were present and did not
prevent would be liable for rape.
The charges would be Robbery with Homicide but when you
make the allegations as to B and C who committed the rape, a
statement that they committed rape will be included. The rape
will only aggravate the crime in so far as these 2 people are
concerned. Since the principal in robbery with homicide is
based on a provision of the law.
Other cases like Kidnapping with Homicide with Rape the SC
said since no law is passed as basis for kidnapping compared
to Robbery, the doctrine that applies in Robbery with Homicide
with Rape is the same doctrine that applies to Kidnapping with
Homicide with Rape or any other special complex crimes.
The law or the jurisprudence or the doctrine that applies with
homicide with rape is the same doctrine that applies in
kidnapping with homicide with rape or any other special
complex crime. Therefore, if there is no robbery but instead of
robbery there is kidnapping with homicide with rape we now
apply that principle.
Meaning of deprivation of Liberty
PP vs. Madsali, G.R No. 179570, Feb. 4, 2010
The victim was fetching water when accused arrived and took
her to the forest against her will.
Serious Illegal detention consists not only of placing a
person in an enclosure, but also of detaining or depriving
him in any manner of his liberty.
Although AAA was not actually confined in an enclosed place,
she was clearly restrained and deprived of her liberty, because
she was tied up and her mouth covered with a piece of cloth
The Madsali case is a case against a father and son. They
took the woman and brought her to the forest and the woman
was raped 3 times by the son and the father stood guard. In
this case, by reason of the conspiracy, both of them were held
liable for kidnapping with rape even if the father did not take
part in the rape and even if we didn’t have a band. The father
is liable because he was present and he did not try to avoid it.
Once there is a special complex crime and you pair it with
conspiracy, all accused will be liable for the crimes committed
if they are present and did not try to avoid it. This is regardless
of the fact whether it is foreseeable or unforeseeable.
Only one information for everyone even if someone did a
separate crime.
Illustration: A,B,C,D E committed robbery with homicide in a
bank. In this case, A was not present, being the mastermind.
E, was not present, being the driver of the vehicle which is
outside the bank. Everybody will be liable for this crime even if
they are not present because the homicide is foreseeable. But
there was a rape committed by D, which is unforeseeable in a
robbery and C who did not commit the robbery was inside the
van and he saw the rape but didn’t do something about it. How
will the information go?
People of the Philippines vs. A,B,C,D,E for robbery with
homicide. There is no such thing as robbery with homicide
with rape. The crime, being a special complex crime, is fixed.
In the narration of allegations in the body of the information,
“..on or about xxx, A,B,C,D,E went to this bank and robbed the
bank and in the course of the robbery X was killed and Y was
raped B while C was present and did not do something about
it. In this case, the special aggravating circumstance of rape
will only be appreciated against B and C but not against A,D
and E.
In a situation where robbery occurred and the accused raped
the victim before killing her, the crime will be Robbery with
homicide. When there is death, whether it’s the sole decision of
one of them, it will always be a special complex crime. Why?
The wording of the law is “by reason of the robbery or on the
occasion of the robbery”, when we say on the occasion of the
robbery, it doesn’t matter who was shot. The same is true in
kidnapping. In kidnapping, it doesn’t matter, so long as the
death occurs, the accused will be liable for kidnapping for
homicide.
Complexing
For Kidnapping with Rape:
PP vs Anticamara, June 8, 2011
Only the rapist was held liable for Kidnapping with Rape; the
other offenders who did not know of the rape were liable only
for the Kidnapping.
PP vs. Madsali, February 4, 2010
The conspirators who did not rape but watched the rape were
held liable for Kidnapping with Rape.
Are the foregoing cases inconsistent with one another?
No. In Madsali, there was conspiracy and he was present. In
Anticamara, there was conspiracy as to the Kidnapping but
they were not present during rape. Thus, there is no
inconsistency. Remember the formula, when there is a special
complex crime + conspiracy, everybody will be liable for
foreseeable crimes even if they were not present.
Therefore, in the preceding illustration regarding robbery with
homicide, even if A was not present because he is the
mastermind. Even if E was not present because he was the
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driver of the getaway vehicle, they will all be liable for the
Robbery with Homicide because homicide is a foreseeable
crime. But if there is a special complex crime + conspiracy but
the crime is not foreseeable, such as kidnapping with rape,
according to Anticamara, we do not hold the ones who were
not present criminally liable.
Formula:
Special complex crime + conspiracy = everybody will be liable
for foreseeable crimes even if they were not present.
Special complex crime + conspiracy but the crime is not
foreseeable = we do not hold as criminally liable the ones who
were not present.
In Larranaga and Anticamara, the Supreme Court said
Kidnapping with Rape shall be treated the same as Robbery
with Rape. As a matter of fact, all other special complex
crimes, should be treated with the same principle as Robbery
with Homicide with Rape. (HUHHHH???)
According to Regalado, in Robbery with Homicide, all
conspirators will be liable. According to Laspuña, all that is
needed to be proven is that there was a conspiracy to commit
the robbery. Once there is a conspiracy to commit the robbery,
even if there was no agreement to kill, the conspiracy to rob
will be sufficient to hold everybody liable, not only for
conspiracy to rob, but also for the conspiracy to the crime of
Robbery with Homicide.
Complexing
For Robbery with Rape by a band
Art. 296 Par. 2 applies. Rape being an “unforeseeable
offense” in Robbery, only band member who committed
the rape or who knew of the rape but did not try to prevent
the same will be liable. (Regalado). Other band members
will only be liable for Robbery in Band.
This was applied in PP vs. Canturia, June 22, 1995 (non-
participants who did not know were not held liable; and in PP
vs. Pizarras, Oct. 30, 1981 (one who held the legs but did not
rape was held liable).
In the Canturia case, there was a robbery. While the robbery
was going on, one of the ladies in the house attempted to
escape. One of the robbers secretly followed the woman and
raped her outside the house. The others did not know about it.
In this case, there was a band. Art. 296 was followed in this
case such that while all may be liable in the robbery, only one
who committed the rape will be liable for the rape.
Complexing
For Robbery with Rape:
However, in PP vs. Carandang, Aug. 15, 1973, SC held that
a conspirator (Caraan) who watched the rape and who even
tried to rape but did not push thru with his design was held
NOT LIABLE for Robbery with Rape.
However, there is an older case of PP vs. Carandang, there
was a robbery and a woman was raped. One of the robbers
watched as the woman was being raped by his co-accused. As
a matter of fact, he also tried to participate for the rape but the
woman pleaded that she just gave birth so he did not proceed
with the rape. He knew that a rape was being committed and
he did not do anything. In this case, the robber who did not
rape but watched as the woman was being raped was not held
liable
The Carandang case is contrary to Canturia case. The case of
Canturia, being the newer case, is what we have to adopt. But
it doesn’t mean that the Carandang case doesn’t exist.
Canturia is supported by law [Art. 296(2)] and jurisprudence.
Complexing
For Robbery with Rape:
In PP vs. Mendoza, citing US vs. Tiongco, the conspirator
who was not present during the rape was held liable for the
rape because there was no proof of conspiracy to rob.
“Mendoza cannot seek sanctuary in our jurisprudence that
where there is no evidence that the accused was aware of his
co-accused’s lustful intent and his consummation thereof so
that he could have attempted to prevent the same, the former
should be held only for robbery and not for the rape.”
In the Mendoza case, the Supreme Court said that you cannot
say that there was no evidence that he was aware. Even if he
was not present, just because there was conspiracy to rob, he
was liable for the rape.
Complexing and conspiracy
In the newer case of PP vs. Suyu, GR No. 170191, August
16, 2006, Willy and Clarissa were held up by 4 accused. Then
2 accused committed rape by sexual intercourse on Clarissa
and 1 accused committed rape by sexual assault.
“Once conspiracy is established, accused would all be equally
culpable for the rape committed by any of them on the
occasion of the robbery, unless any of them proves that he
endeavored to prevent the other from committing the rape.”
Although 2 people committed rape by sexual intercourse,
“there is only 1 single and indivisible felony of Robbery
with Rape and any crimes committed on the occasion and
by reason of the robbery are merged and integrated into a
single and indivisible felony of Robbery with Rape,”
In effect, the case of Suyu, abandons the Supreme Court ruling
in the Mendoza case. However, since this is a special complex
crime, multiple rapes will only be treated as 1 count of rape
because you cannot say robbery with multiple rape. Even if
there were 3 rapes, it will only give rise to 1 special complex
crime. As a matter of fact, in the case of Suyu, the rape by
sexual assault, the sexual assault was absorbed.
Complexing and Conspiracy
Celerino Chua vs PP, GR. No. 172193, Dec. 7, 2017
Although Chua was not present during the Robbery and
Carnapping, he was found guilty for both, being the
mastermind and conspirator.
In this case, the argument of the Court seems to reiterate the
ruling that once conspiracy is proven, every conspirator,
including those who are not present, are liable for injuries
inflicted even if not previously agreed upon. However, the
crime here was not a special complex crime as the injuries
were only less serious.
Read this case!
In this case, the charges, initially, were for the special complex
crime of Robbery with Serious Physical Injuries. Since it’s a
special complex crime, all principles relating to special complex
crimes were put into argument by the Supreme Court.
However, it was later found out that the physical injuries were
not serious, thus, it is no longer a special complex crime. The
Supreme Court said that once the conspiracy to rob is proven,
everybody will be liable for the crimes that are committed, even
if they were not present so long as the crime is foreseeable. In
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this case, less serious is foreseeable but it is not a special
complex.
In this case, Chua was not present, being the mastermind.
Some of the things that were stolen were found in his
possession. But apart from taking the things, they also
carnapped the vehicle of the victims. Later on, the vehicle was
recovered and the one who bought the car testified that the car
was actually sold by Celerino Chua. Evidence pointed out to
the fact that Chua was really the mastermind of the
conspirators. Applying the rules on special complex crime that
even if you’re not present but as long as you’re the
mastermind, you will be liable not only for the robbery but also
for the less serious physical injuries.
Now what happens if there is a robbery and there is less
serious physical injuries? How do we treat them? Do we
separate? Do we complex? Or do we absorb? Remember the
hierarchy.
First is SPECIAL COMPLEX.
What do we do if the crimes do not constitute special complex
crime?
Second, we ORDINARY COMPLEX under Article 48.
If the less serious physical injuries is a means to commit the
robbery, we ordinary complex. If it is not a means, then we do
not ordinary complex.
So what does “means to commit” mean?
For example, you are holding a phone, I will snatch it from you.
Since you are holding it tightly, I punched you to be able to
take the phone.
So the reason for the less serious physical injuries must be for
the purpose of committing the robbery. That is the only time
that you have ordinary complex.
However, if that is not the case, if the less serious physical
injuries- if it is committed on the occasion of or by reason of the
robbery but not as a means to commit the robbery- then the
less serious physical injuries is ABSORBED. It is not separate.
Why is it absorbed?
Because Chua says so. So by virtue of Chua, we do not
anymore separate.
It used to be that only slight physical injuries will be absorbed.
But now, even if it is not slight, but less serious, it will still be
ABSORBED.
The only time that you will have an ordinary complex crime is if
it is a means of committing the robbery.
Complexing and Conspiracy
Celerino Chua v. People
Although Chua was not present during the Robbery and
Carnapping, he was found guilty for both, being the
mastermind and conspirator.
(In this case, the argument of the Court seems to reiterate the
ruling that once conspiracy is proven, every conspirator,
including those who were not present, are liable for injuries
inflicted even if not previously agreed upon. However, the
crime here was not a special complex crime as the injuries
were only less serious.)
Title 9: Crimes against Property, Liberty and Security
Article 270-271
CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
Arbitrary detention from Illegal Detention
- the first is committed by a public official; there is no legal
ground for arrest
Kidnapping from forcible Abduction
- there is lewd designs in the latter
Grave coercion- the taking is to force the victim to do
something, except to give money
By the way, we were discussing only serious illegal detention.
All the others will be slight. Those deprivations of liberty which
do not fall under serious are considered slight.
We have other crimes though that are punished under Title 9
and those are Article 270.
Article 270. Kidnapping and failure to return a minor. – The
penalty of reclusion perpetua shall be imposed upon any
person who, being entrusted with the custody of a minor
person, shall deliberately fail to restore the latter to his parents
or guardians. (As amended by RA No. 18)
Article 271. Inducing a minor to abandon his home. – The
penalty of prision correccional and a fine not exceeding seven
hundred pesos shall be imposed upon anyone who shall
induce a minor to abandon the home of his parents or
guardians or the persons entrusted with his custody.
If the persons committing any of the crimes covered by the two
preceding articles shall be the father or the mother of the
minor, the penalty shall be arresto mayor or a fine not
exceeding three hundred pesos.
Crime committed if the victim is a minor
Art. 270- offender is entrusted with custody and refuses to
return the minor.
Case: Pp v. Cherry Bondoc, May 23, 1994
Art. 271- offender induces the minor to abandon his home.
If the victim is a minor, the penalty is RP whether the child was
snatched or taken (Art. 267), or received by the accused to
whom custody was entrusted (Art. 270). Unless it is the father
or the mother, in which case, the penalty is arresto mayor.
The offender fails to return the minor and he induces the minor
to abandon his home. The penalty is higher, except only if the
offenders are parents. If the offender/s is/are parent/s, the
penalty will only be arresto mayor.
Although we have Article 270, note that this can only be
committed if the offender has custody. If the reason why the
offender gained custody was because it was not given, but
because it was acquired either by intimidation, deceit or fraud,
270 will not apply. There could be Article 267 which is
KIDNAPPING.
Here, the custody must be given or fully consented to. If not,
then there can be KIDNAPPING under Article 267.
Like for example in this case, People v. Mendoza,
People v. Angelina Mendoza, July 31, 1989
Minor was lured away from his parents in Luneta, taken
elsewhere and later sold.
The charges state that the crime committed was Art. 270, but
the body of the Info also stated that the accused “kidnap and
carry away the victim, separating him from his mother without
the knowledge and consent of his parents and deliberately
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failing to return him…”
The accused was convicted under Article 267.
The parents were in Luneta, this woman approached the family
and befriended the parents. While the parents were not
looking, the accused lured the minor victim and took her
somewhere else.
The Supreme Court said that it is not 270, instead that is a
violation of 267. Why? It does not mean that the parents gave
the custody over the child by the mere fact that the accused
befriended them.
[Another example] A few years ago, there was this woman who
wanted to have a child. She dressed herself as a nurse, went
to Vicente Sotto and told the mother that she will take the baby
for vaccination. There was consent, but that consent was
vitiated. It was given on the assumption that she was a nurse.
Since she was not a real nurse, then that consent was not
effectively given to her, because it was only given to a nurse
and she was not.
If a case were filed, then the crime would be Article 267
because of the fact that the victim was a baby.
However, the SC emphasized in Marquez,
Pp v. Aida Marquez, April 13, 2011
“What is punished is NOT the Kidnapping but the
deliberate failure to restore the minor to his parents or
guardians.”
“Indeed the word ‘deliberate’ as used in Art. 270 must
imply something more than mere negligence- it must be
premeditated, headstrong, foolishly daring or intentionally
and maliciously wrong.”
In order that the crime be committed, the failure to return
should be deliberate.
Here, the accused was really the mother’s friend who usually
brings clothes, milk and food for the child. However, she took
the child to her hometown and she was not able to return the
child on time because she got sick. And she was charged with
Article 270. SC said that in order for Art. 270 to apply, it must
be premeditated. In this case, there was no crime committed.
Crimes Against Minors
Abandonment of minor is also punished under RA 9262, and
RA 7610
Exploitation of minors could also fall under Worst Forms of
Labor or RA 9231
Abandonment of minor (in the RPC) carries with it a very
minimal penalty. This is not used much anymore because of
RA 7610. In abandonment of a minor, or neglect of a minor,
the parent- neglects, fails to send a child to school, or fails
to give him support.
In this case, it should be the minor who should file the case
because he is the victim. Since it carries with it a minimal
penalty and is cognizable by the MTC, most prosecutions are
filed under 7610. Because in 7610, the penalty is higher for
neglect of abandonment. But the law is still there.
Now, can there be double jeopardy for the same act of
abandonment?
Although they are punished under different laws- one is
punished under a Special penal law and the other in the RPC-
(there is yet no jurisprudence on this) there may be double
jeopardy for the same act of abandonment.
The only essence of double jeopardy is when the elements are
the same. If they are the same, there is double jeopardy. Since
the cases under the RPC and 7610 have almost the same
elements, it will create double jeopardy.
Abandonment of Persons
Uninhabited place- is determined by the possibility of a person
receiving assistance from another. Even if there are many
buildings but the possibility of rescue is remote, there is still
abandonment.
In cases of imprudence, if the victim is abandoned by the
offender, Art. 365 applies, and the penalty shall be one degree
higher. Hence, it must be alleged in the information.
Art. 275, the wounding must be accidental but not through
negligence, eg., illegal discharge of firearm of xxx causing
injury.
The person must be needing help. Practically, emergency help
and the person should be needing assistance.
In abandonment, it is not necessary that the person who
abandoned is also the author of a crime which resulted in injury
in the victim.
What if it is the person who hit the injured?
For example, if there is a case for reckless driving and he hit
the person, and he thereafter abandons. There is hit and run.
What usually happens is--- the charges filed would be Article
365 under Imprudence and the fact of the hit and run will only
become a qualifying circumstance that will increase the penalty
with one degree. There will only be one case- the
abandonment will not be a separate crime. Instead, such fact
will only be a qualifying circumstance which will only change
the penalty- not only to the maximum but increased to one
degree.
The case would be for Article 365 (reckless imprudence) with
qualifying circumstance of abandonment.
However, in this kind of abandonment under Title 9, it is not
necessary that the accused was the one who committed the
crime which injured the victim. It could be anybody. Provided
that the person (offender) passed by and the place was
uninhabited.
“Uninhabited” does not mean that there are no buildings. There
may be buildings but there are NO PEOPLE.
For example, there are many buildings but these were
warehouses and nobody lives there. It is considered
uninhabited place.
For instance, there is a victim of stabbing who was in an
uninhabited place and you just passed by without helping
him—that would be a case of ABANDONMENT under Article
275.
When the offender for abandonment is the same person who
abandoned the victim, two separate cases may be filed-
abandonment under Article 365 and abandonment under
Article 275. No double jeopardy.
There was a case wherein a person was charged both with
Abandonment and a violation under Article 365. And yet what
the SC said, there is NO DOUBLE JEOPARDY. In that case,
the accused was the one who caused the injury and was the
same person who abandoned the victim. Two cases were filed
against him.
Fiscal’s opinion: BUT I think it would not be very
advantageous. What is more advantageous is to file under Art.
365 and use the hit and run as Aggravating- because that
would be ONE DEGREE HIGHER. In the case mentioned, it
would still be probationable. It would be still a very low penalty.
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Then we have Trespass to Dwelling.
TRESPASS
Violence or intimidation used in Qualified Trespass includes
BOTH violence and intimidation of persons as well as force
upon things. (People v. Tayag, 59 Phil. 606)
Owner of a house may commit trespass if lawfully occupied by
another. Trespass is not anchored on ownership but also on
valid right to possess. (Pp v. Uy Almeda, 75 Phil. 476)
Entry or squatting in a closed or fenced premises where
prohibition to enter is manifest may be prosecuted under Art
281.
Dwelling is the place that a person inhabits or any building or
structure exclusively devoted for rest and comfort. It includes
the dependencies which have interior communication with the
house. It is not necessary that it be a permanent dwelling of a
person.
“Against the will” means the entrance is expressly or impliedly
prohibited.
There is no trespass, if consent is given by an occupant of
sufficient discretion, even if the one who allowed was not the
owner.
Dwelling- is a place dedicated for rest and residence. It
includes any appurtenances to the dwelling, not only the
dwelling itself.
If that part of the building is not anymore used for rest, rather
for some public purpose such as a store or whatever, where
public can go in and out, then that part is not part of the
“dwelling”.
So there is qualified trespass. It is the same manner when
robbery is committed, it is just that here, there is no intent to
take something. Once there is already intent to take
something, it would not be trespass anymore but it would be
either ROBBERY in its consummated stage or in robbery in
its attempted stage.
Threats
Grave Threats- when the wrong threatened to be inflicted
amounts to a crime.
Light threats – when the act threatened to be done does
not amount to a crime.
Other light threats –
(a) Without being grave or light threats, threatening
another with a weapon or drawing weapon in a quarrel
(b) Orally threatening with harm that is not a crime, but did
not persist
(c) Orally threatening another a harm that is not a felony
SC has made it clear that to be considered grave, threat must
amount to a crime. If it does not, it cannot be grave threats.
That is the main difference between grave and light.
In other light threats, the specific acts are enumerated. They
are specified.
What’s the difference between threats and coercion?
Threats from Coercion
In Coercion, desired purpose is achieved; in Threats, act
desired is not immediately consummated.
In Threats, the harm is a future harm; in Coercion, the
threatened harm is immediate and present.
In Threats, the harm is directed against the person, family,
honor, or property. In coercion, the harm is directed towards
the person of the victim.
Threats and coercion are absorbed in other crimes, like
Robbery, xxx, Trafficking, xxx.
Coercion
Grave coercion arises only if the act which the offender
prevented another to do is not prohibited by law or ordinance.
If the act was illegal, there is no grave coercion.
Grave coercion may be preventive or compulsive.
Grave coercion is committed by means of violence, threats or
intimidation.
We have preventive coercion or compulsive coercion.
Not all grave coercion is a crime. Compulsive grave coercion is
ALWAYS A CRIME. Whether the act which is forced to be
done or prevented to be done is a crime or not.
For example, A told B to rob a thing. B says, “If you don’t rob
that thing, I will torture you.” This is grave compulsive coercion-
compelling a person to do something.
In COMPULSIVE GRAVE COERCION, the act may or may not
amount to a crime. If it is compulsive grave coercion, it is
always a crime.
But if you are compelled to pursue Maria, is that a crime? No.
But because of the coercion, IT IS STILL A CRIME.
So in compulsive grave coercion, the act which is forced to be
done may or may not constitute a crime. Provided it is
compulsive, the compulsion will always be a crime.
However, in PREVENTIVE GRAVE COERCION, there can
only be such crime if what is ordered to be done is not a crime.
Because if what is prevented is a crime, then there is NO
COERCION.
For example, A says to B, “Don’t pursue Maria.” This would be
preventive grave coercion.
But if what is said is, “Do not rob the bank.” Then there is NO
CRIME.
Light Coercions and Other Similar Coercions:
 Light coercions – by means of violence, seizing property
belonging to a debtor for the purpose of applying it to the
payment of debt
 Unjust vexation – anything that annoys the offended party.
This is a crime by dolo, malice is inherent and need not be
alleged in the Information
 Other similar coercions - compelling an employee to
purchase merchandise, payment of wages with objects
other than legal tender, unless requested by the
employee.
TITLE TEN – CRIMES AGAINST PROPERTY
Chapter One – Robbery in General
Robbery
Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence against, or
intimidation of any person, or using force upon things.
Elements of robbery in general
1. Unlawful taking of a personal property belonging to
another
2. The taking must be with intent to gain
3. There is violence against or intimidation of any person, or
force upon anything
Classifications of Robbery
1. Robbery with violence against, or intimidation of
persons (Articles 294, 297 & 298)
 Robbery of the First Kind
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 The taking is complete from the moment the offender
gains possession of the thing taken, even if the culprit
had no opportunity to dispose of the same.
 Example: If the offender enters the dwelling and he
intimidated the occupants of the house so that the
latter would give him articles, and he took possession
thereof, the crime is consummated even if he was not
able to get out of the house.
2. Robbery by the use of force upon things (Article 299)
 Robbery of the Second Kind
 The thing must be taken out of the building/premises
to consummate the crime
What if both circumstances are present in robbery?
It will be classified as first one which is considered to be a
more serious crime punishable with higher penalty. But now,
following the amendments to the RPC, it barely has any
difference.
US v. Delos Santos (Landmark Case)
(Also applied in US v. Manansala, US v. Turla, PP v. Baluyot,
Manahan v. PP and PP v. Sebastian)
Robbery which is characterized by violence and intimidation
against the person is evidently graver than robbery committed
by force upon things, because there is greater disturbance of
the order of society and security of the individual. Here, the
lesser penalty was imposed.
Baluyot Case
Lesser penalty was imposed even if the nature of the crime
was for graver just because there were two circumstances
present. It would be better not to allege the first kind then.
Note: The above doctrine was ABANDONED in Napolis v. CA
where the SC invented the complexing.
Napolis v. CA (from Big Batch reviewer)
Robbery was committed by breaking through the wall of the
store adjacent to the house and subsequently inflicting
violence against the homeowners. RTC and CA applied Art.
294, as intimidation characterized the robbery, even though it
had a lighter penalty compared to Art. 299
Ruling: Robbery with violence against or intimidation of
persons is a much graver crime, with Art. 294 being the
applicable provision. Due to the circumstances of the case,
however, a much lighter penalty of PC max to PM min as
compared to the RT imposed by Art. 299 if robbery is
committed by breaking into an inhabited house without
inflicting violence. SC resolved then to make a complex crime
(Art. 294 and Art. 299) when the elements of both crimes are
present, with the resulting penalty of RT max.
ROBBERY OF THE FIRST KIND
ROBBERY WITH VIOLENCE AGAINST, OR INTIMIDATION
OF PERSONS
Article 294 – Robbery with violence against or intimidation
of persons
Note: Crimes defined are Special Complex Crimes
Special Complex Crimes of Robbery
1. Robbery with Homicide;
2. Robbery with Rape;
3. Robbery with Mutilation;
4. Robbery with Serious Physical Injuries:
(any person)
a. Insane, imbecile, impotent, blind
b. Lost use of speech, hearing, smell; lost an eye, hand,
foot, arm, leg, or use thereof, or incapacitated for
work that he was habitually engaged in
(injuries inflicted on person not responsible for its
commission)
c. Deformity
d. More than 30 days
5. Robbery with physical injuries by band
6. Attempted or frustrated robbery with homicide
Note: In all the special complex crimes involving robbery, the
main purpose must be to rob.
Article 295 – Robbery with physical injuries, committed in
an inhabited place and by a band, or with the use of
firearm on a street, road or alley
Qualifying circumstances:
1. Committed in an uninhabited place
2. Committed by a band
3. Committed by attacking a moving train, street car, motor
vehicle, or airship
4. By entering passenger’s compartment in a train, or in any
manner taking the passengers thereof by surprise in the
respective conveyances
5. Committed on a street, road, highway, or alley, and the
intimidation is made with the use of firearms
Article 296 – Robbery by a band
Band
At least four armed persons
Requisites for liability for the acts of other members of the
band
1. He was a member of the band
2. He was present at the commission of the robbery by that
band
3. Other members committed an assault
4. He did not attempt to prevent it
DISCUSSION ON SPECIAL COMPLEX CRIME AND
COMPLEXING
Robbery with Homicide
There is Robbery with Homicide even if the killing is not
premeditated. What is determinative is that the killing took
place “by reason of or on the occasion of” the robbery.
Meaning of “Homicide”
Generic interpretation of homicide in complex crimes of
Robbery
The homicide is used in its generic sense, such that it does not
matter whether what was committed was murder, infanticide or
parricide. It will always be designated as Robbery with
Homicide.
Victim in Homicide need not be victim of Robbery
The victim in the Homicide is not necessarily the victim in the
Robbery. The death may be by reason of or on the occasion of
the robbery.
Example: Even if Juan, the robber only robbed Pedro, but the
former hit a passer-by, Jose, instead, the crime is still Robbery
with Homicide. The killing was committed on the occasion of
the robbery even if it was not by reason of the robbery.
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Robbery with Serious Physical Injuries robber who died. He would not have been allowed to post bail
because the imposable penalty is reclusion perpetua. Since he
Wording of the law has changed. Under Article 263, the first made such admission, the robber who survived was only
two kinds of serious physical injuries, when the victim has charged with robbery, and was allowed to post bail. When he
become (a) Insane, imbecile, impotent, blind; or b) Lost use of was released from custody, he was later shot, and then died.
speech, hearing, smell; lost an eye, hand, foot, arm, leg, or use
thereof, or incapacitated for work that he was habitually If the other robber did not die, but sustained injuries that would
engaged in, it does not matter whether the victim of the injury require him more than 30 days to heal and such do not fall
is also the victim of the robbery. under the first two kinds of injuries, then there is no special
complex crime. In order for the charge of Robbery with Serious
Example: Juan robbed Pedro. The former tried to shoot the Physical Injuries to prosper when the injuries sustained do not
latter. Because of his poor aim, he hit a bystander Jose fall under the first two categories, the person injured must not
instead. Jose did not die but incurred serious physical injuries be a robber. In this case, two separate crimes are committed.
of the first two kinds. There is a special complex crime. This situation presupposes that it was the co-robber who fired
the fatal shot.
Article 294 punishes Robbery with Serious Physical Injuries
when by reason of or on occasion of the robbery, any of the To sum it up:
physical injuries penalized under subdivision 1 and subdivision
2 of Article 263 is committed. Who
Crime
caused The
Result committed
However, under the same article, “if the violence or intimidation the death victim
by robber
employed in the commission of the robbery shall have been or injury
carried to a degree clearly unnecessary for the commission of Robber
the crime, or when in the course of its execution, the (presumed
offender shall have inflicted upon any person not responsible Any
when
for its commission any of the physical injuries covered by person, Robbery with
there is no Death
subdivisions 3 and 4 of said Article 263…” other than Homicide
evidence
a robber
to the
In the previous example, if the injuries caused against Jose contrary)
was merely under c) or d) (as mentioned in the slides or under Robbery with
Article 263), there is no special complex crime. There will be Robber Co-robber Death
Homicide
two separate crimes of robbery, insofar as Pedro is concerned Robbery (as
and serious physical injuries, insofar as Jose is concerned. Policeman Co-robber Death to a robber
who survives)
Carcar case example Insane, imbecile,
There was a bank robbery in Carcar. Two robbers went inside impotent, blind
Landbank. The manager noticed the happening of the same,
so he exited through the back door. He ran to the police station Lost use of
and reported the robbery. When the police came, they were speech, hearing,
not able to identify the robbers. When the two robbers went out Any Robbery with
smell; lost an eye,
and tried to draw a gun, a fire fight ensued between the police person, Serious
Robber hand, foot, arm,
and the robbers. In the end, one of the robbers died, while the even a co- Physical
leg, or use
other one was wounded. What crime should be charged robber Injuries
thereof, or
against the robber who was wounded? incapacitated for
work that he was
There is no question that when it was one of the policemen or habitually
any of the victims or a bystander who died, the crime engaged in
committed is Robbery with Homicide. But here, it was one of Deformity or more
the robbers who died. than 30 days of
Any Robbery with
healing
If the co-robber died from the bullet of the robber who survived, person, Serious
Robber (injuries
a special complex crime of Robbery with Homicide is other than Physical
committed by
committed as the death may be by reason of or on the a robber Injuries
reason of the
occasion of the robbery. It does not matter that it was one of robbery)
the robbers who died as a result thereof. Robbery &
Serious
However, if the robber died from the bullet of the policeman, Deformity or more
Physical
then the crime committed by the robber who survived is only Robber Co-robber than 30 days of
Injuries (two
robbery. healing
separate
crimes)
There is “some sort of” a legal presumption. When there is a
robbery, and it cannot be determined who fired the fatal shot, it Just because two crimes are committed, such as robbery and
is presumed that it was the robber who caused the same. If a homicide, it does not always mean that they should be
fire fight ensued, and there is no evidence as to who made the complexed. Both crimes must be committed by the same
shot, the robber is presumed to have fired it. perpetrator. For instance, if Juan kidnapped Maria, then the
latter tried to escape, so she was shot by the former. The crime
In relation to what happened in the bank robbery, the charge is kidnapping with homicide. However, if Maria was raped by
would have been for Robbery with Homicide had the Pedro while she was trying to escape, then there is no complex
policemen not admitted that he fired the fatal shot against the

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crime of kidnapping with rape. You cannot charge a person
with a crime that he did not commit.
“By reason of”
In the furtherance of the robbery, more or less along the line of
“deliberate”
Even if more than one person died, there is only one crime
committed, Robbery with Homicide.
Discussion on the killing of a mother and her child by
construction workers
It was shown that there was evident premeditation as the
accused asked to borrow money from the victim, but the latter
refused. After the killing, several items were taken from the
house of the victim. The taking herein was merely an
afterthought.
There should be two counts of murder and theft. As to the
woman, there was evident premeditation, while as to the child,
there was abuse of superior strength. The robbery could no
longer be with force or intimation, but rather with force upon
things.
If the victims were alive at the time of the taking, the crime
would be Robbery with Homicide. The taking would seem like
the main objective.
There is no Robbery in band with Murder; Robbery with
Multiple Homicides or Robbery with Homicide in band.
The band or the qualifying circumstance to Murder will only
constitute an ordinary aggravating circumstance in this special
complex crime.
For Robbery with Homicide
All conspirators are liable for the Homicide which is a
“foreseeable offense” in Robbery (Regalado).
All that is needed to be proven is that there was a conspiracy
to commit the robbery (PP v Lascuna, G.R. No. 90626, Aug.
18, 1993).
For Robbery with Rape by a band
Art. 296, Paragraph 2 applies. Rape being an “unforeseeable
offense” in Robbery, only band members who committed the
rape or who knew of the rape but did not prevent the same can
be held liable (Regalado). Other band members will only be
liable for Robbery in Band.
This was applied in PP v. Canturia, June 22, 1995 – non-
participants who did not know were not held liable; and in PP v.
Pizarras, Oct. 30, 1981 (one who held the legs but did not rape
was held liable).
Fiscal: Canturia is controlling, rather than Mendoza. The
former was in accord with the provisions of the law, whereas
the latter cited a very old case.
Only Regalado uses the “foreseeability” of crimes. Fiscal
opines that this discussion is correct. In foreseeable crimes, it
does not matter whether or not it was committed by a band, or
there was conspiracy, or the accused was present. If the crime
is Robbery with Homicide, homicide being a foreseeable crime,
even if the mastermind is not present, he may be held liable.
As said in Lascuna, only the conspiracy must be proved
despite the accused’s absence thereat, also despite the
absence of the conspiracy to kill. Only the conspiracy to rob
must be proved.
Rape is considered not foreseeable in the commission of
robbery. Hence, the law must be taken into consideration.
Article 296 states that those who were not present during the
commission of the rape are not liable for the same.
Article 296, if you have to be strict about it, must be committed
by a band. Not all conspiracies constitute a band because
there may be conspiracies involving twenty persons, but it may
not be a band when only two people are armed.
For non-foreseeable offenses, the rule applies to a band. What
about when there is a conspiracy? Article 296 also applies,
according to Fiscal.
Note: What is important is the foreseeability of the crime.
Robbery with Rape
People v. Carandang, Aug. 15, 1973
SC held that a conspirator (Caraan) who watched the rape and
who even tried to rape but did not push thru with his design
was held NOT LIABLE for the Robbery with Rape.
People v. Mendoza, July 9, 1998, citing US v. Tiongco
The conspirator who was not present during the rape was held
liable for the rape because there was proof of conspiracy to
rob.
“Mendoza cannot seek sanctuary in our jurisprudence that
where there is no evidence that the accused was aware of his
co-accused’s lustful intent and his consummation thereof so
that he could have _______ to prevent the same, the former
should be _____ only for robbery and not for the rape.”
People v. Suyu, G.R. No. 170191, Aug. 16, 2006
Although two people committed rape by sexual intercourse,
“there is only one single and indivisible felony of Robbery with
Rape and any crimes committed on the occasion and by
reason of the robbery are merged and integrated into a single
and indivisible felony of Robbery with Rape.”
Celerino Chua v. PP, G.R. No. 172193, Dec. 7, 2017
Although Chua was not present during the Robbery and
Carnapping, he was found guilty for both, being the
mastermind and conspirator.
(In this case, the argument of the Court seems to reiterate the
ruling that once conspiracy is proven, every conspirator,
including those who were not present, are liable for injuries
inflicted even if not previously agreed upon. However, the
crime here was not a special complex crime as the injuries
were only less serious).
Case study:
Juan planned on stealing Pedro’s new iPad. When Pedro
went out of the house to his garden, leaving the door ajar,
Juan sneaked inside the house and took the iPad. As Juan
was coming out, he heard Pedro’s footsteps and in panic,
jumped out through the kitchen window.
Juan wanted to take Pedro’s new iPhone. He entered
through the door when it was left ajar. The iPhone was
placed in a locked receptacle, so Juan broke the
receptacle open, but the noise alerted Pedro, who went
back to the house. Juan filed outside without the
receptacle and the iPhone, by destroying the CR window.
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For Robbery with Rape by a band
Art. 296 Par. 2 applies. Rape being an “unforeseeable offense”
in Robbery, only band members who committed the rape or
who knew of the rape but did not prevent the same can be held
liable. (Regalado) Other band members will only be held liable
for Robbery in a Band.
This was applied in Pp. v. Canturia, June 22, 1995 (non-
participants who did not know were not held liable; and in Pp.
v. Pizarras, Oct. 30, 1981, one who held the legs but did not
rape was held liable)
For Robbery with Homicide- all conspirators are liable for the
Homicide which is a “foreseeable offense” in Robbery.
(Regalado)
All that is needed to be proven is that there was a conspiracy
to commit the robbery. (Pp. v. Lascuna, GR 90626, Aug. 18.
1993)
Fiscal: In another case involving kidnapping with rape, the
father (of the one who raped) was watching. He was made
liable for the rape just because he was there and did not try to
prevent it. This means that Art. 296 (2) was applied in
kidnapping with rape which is not by a band but by conspiracy.
In another case there was kidnapping with rape. There was no
band but one of the members who was not present was not
held liable. Therefore, again, using Art. 296.This means that
although Art. 296 seems to limit itself to robbery and band, in
the application in jurisprudence Art. 296 was applied to other
special complex crime, but ONLY special complex crime and
not any other kind of complex crime. It cannot apply to ordinary
complex crime. You cannot apply it in Robbery with Less
Serious Physical Injuries because that is not a special complex
crime. That may be an ordinary complex crime.
Foreseeability is an invention of Regalado; No case has
used the term
But even if it is not expressly argued or discussed in a ruling,
the principle was applied without saying it is the foreseeability
or non-foreseeability. Therefore you use this one for
foreseeable. You don’t really use the foreseeable argument,
you can use it if it is our exams. Or you can use it but you have
to state Regalado and before you state Regalado, you better
read Regalado. That’s a beautiful discussion because in effect
even if it was not outrightly stated by the Court as the basis but
it became sort of the underlying basis for the ruling. This one,
for example, is more on the foreseeability.
For the non-foreseeable thing like rape, it is easier because
there are plenty of jurisprudence plus you have the law. But for
the foreseeable, how would you now prosecute the
mastermind who is not there and the case is robbery with
homicide? This is the principle that you will use. So it would
seem that Art. 296 has been applied not only in robbery with
rape but also other special complex crime.
Robbery w/Rape; Robbery w/Homicide
The true intent must be determined, which is to commit the
Robbery. This must precede the Rape or Homicide. Otherwise,
there will be two separate crimes of Robbery and Rape, or
Theft and Homicide or Murder.
Robbery cannot anymore be committed after the victim is
killed. He cannot anymore be “intimidated.”
There is no more complex crime of Robbery with Attempted
Rape.
When the victim of Rape marries the rapist, the crime of
Robbery with Rape will not change.
Robbery with rape: when complex, when separate
People v. Naag, G.R. No. 136394, Feb. 15, 2001
In the special complex crime of robbery with rape, it is intent
that determines the offense. If the intention was to rob, but
rape was committed even before the asportation, the crime is
robbery with rape. But if the original plan was to rape but the
accused after committing the rape also committed the robbery,
the offense should be separate.
Here the accused should not only be convicted of theft (and
rape) because when he took the personal properties, the
element of violence and intimidation was no longer present.
While it is true that he inflicted force upon her person, that was
with the view and in pursuance of the rape, not of the theft
when the asportation happened, Desiree was incapable of
putting any form of opposition.
In Naag, it does not matter which crime was committed first. In
Naag, the rape came first. Supreme Court said that it is the
intent. If right from the get-go the intention was to rob, then we
special complex. But if the purpose was to rape and not to rob,
we do not special complex. There will be two separate crimes.
Robbery, homicide, rape
People v. Tapales, G.R. No. L-35281, Sept. 10, 1979
When Rape and Homicide co-exist in the commission of
Robbery, it is Art. 294 Par. 1 which applies, the Rape to be
considered an aggravating circumstance.
While there may have been an appreciable interval of time
between the robbery and the killing and the rape, there was a
direct relation, and intimate connection between them such
that it can be stated that it was by reason or on occasion of the
robbery that Homicide and Rape were committed.
Robbery with rape; when committed
So Tapales made it clear that when rape and homicide co-exist
in the commission of robbery, it is Art. 294(1) which applies.
The rape is to be considered as aggravating which means that
the crime would be merely robbery with homicide. In Tapales,
there was an appreciable interval of time between the robbery
and the killing and the rape but there was a correlation. So
even if there was interval, they were taken to be one special
complex crime because it can be stated that it was by reason
or on the occasion of the robbery that the homicide and the
rape were committed.
Rape may be committed before, during or after the
robbery
People v. Napud G.R. No. 123058, Sept. 26, 2001
When appellant forcibly entered the chicken coop and took the
chickens, while his confederate was threatening the victims, he
committed the crime of robbery.
Though robbery appears to have preceded the rape of Evelyn,
it is enough that robbery shall have been accompanied by rape
to be punished under the RPC for the Code does not
differentiate whether the rape was committed before, during or
after the robbery.
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So it does not matter which crime was first committed, what
matters is the purpose. If the purpose was to rob, even if the
rape was first committed, it would be robbery with rape. If the
purpose is not to rob, there is no more special complex.
Robbery with rape is a crime against property
People v. Porcare, G.R. No. L-37235, Feb. 5, 1983
Robbery with rape is also a crime against property. Same with
Robbery with Homicide, treachery can be appreciated as
aggravating in Robbery with Rape even if ordinarily this
circumstance only applies to crime against persons.
Robbery with Arson
There is NO such thing as Robbery with Arson
There can only be robbery with arson under RA 7659 if there
is, in this order:
 No Robbery with Homicide
 No Robbery with Rape
 No Robbery with Intentional Mutilation
Article 297 – Attempted and frustrated robbery committed
under certain circumstances
Frustrated Robbery
In the case of Villanueava and Catseran, there is no more
frustrated theft. Noting that robbery is just a variation of theft, it
has the legal implication that there is also no frustrated
robbery. In the first kind, there is no more frustrated stage
since at the instance of taking the crime is already
consummated.
However, in the Second kind, the crime will not be deemed
consummated unless the robber was able to get out of the
premises. Before he was able to get out of the premises, the
crime is still at the attempted stage. Going back to the
definition of Frustrated stage, it is defined that the perpetrator
has performed all acts of execution but for some independent
cause, the crime was not committed. In the second kind, it
cannot be said to be at the frustrated stage since the robber
has to get out of the premises to consummate the crime.
Note: No jurisprudence on the matter but we can always go
back to the basic. Thus it is important if in case you run out of
reasoning.
Can a robber be a victim of robbery with respect to the
stolen property?
Yes. As long as the property taken by the accused does not
belong to him, even if it was taken from a thief, there is also
Robbery of Theft.
Single Larceny Doctrine
Robberies/Thefts committed upon different victims on the
same occasion and in the same place constitute only one
crime. These are incidents to only one criminal intent.
If committed in different houses belonging to different victims,
there are as many robberies or thefts as there are incidents.
People v. Jaranillo, 55 SCRA 563 [1974]
The theft of six roosters belonging to two different owners from
the same coop and at the same period of time
People v. De Leon, 49 Phil. 437 [1926]
The theft of two roosters in the same place and on the same
occasion.
Note: In these cases, single larceny doctrine applies. Thus,
there is one simple theft even if there are several acts
constituting several crimes.
Santiago v. Garchitorena, GR. 109266, Dec. 2, 1993
Accused was charged for as many malversations made on
different occasions evidenced by different dates.
Ruling: Singly larceny doctrine applies.
The trend in theft cases is to follow the single larceny doctrine.
The taking of several things, whether belonging to the same or
different owners at the same time and place, constitutes but
one larceny.
Many courts have abandoned the “separate larceny doctrine”
under which there are distinct larceny as to the property of
each victim.
Application of Single Larceny Doctrine in
misappropriation of sales
Single Larceny Doctrine likewise applies in case of a sales of a
person obliged to render an account once a month. In every
transaction, he misappropriated a portion of the sales. But it is
only at the end of the month that he has to render an account.
SC applies the single larceny doctrine. Thus, only one crime is
committed even if there are several acts of misappropriation in
different dates/times since there is but one single intent. This is
so because the damage was finally done at the reporting
period following the ruling in Santiago v. Garchitorena case.
As for the “single larceny” doctrine, which applies only to
crimes against property, will you not encounter an
Information that charges a person with several counts of
theft?
Even if they will be charged separately, there will only be one
count of theft. There may be a consolidation since the penalty
in theft would depend on the amount. If there is only one
conviction, the rest will not amount to double jeopardy because
they arise from different acts on different times. The penalty
will no longer be accurate if you separate them. Normally, what
happens is that the Information will indicate that “between the
months of ____ & _____, this person took this amount on
several occasions.” That is only one crime.
Larceny
Means taking or stealing
The single larceny doctrine applies only to crimes against
property.
However, in Santiago, the crime was not under Title X (crimes
against property). It was a case for Malversation, which is a
crime committed by public officers. Hence, the single larceny
doctrine is not technically limited to crimes against property
under Title X of the Revised Penal Code, as it may be applied
to other crimes where there is taking of property, though not
strictly under Title X.
ROBBERY OF THE SECOND KIND
ROBBERY BY THE USE OF FORCE UPON THINGS
Robbery by the use force upon things
Kinds:
1. In an Inhabited place
2. In an Uninhabited place
Situation:
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If the building is inhabited and the robber entered the
building through the door which was open but upon
hearing the police siren, he exited through the window. Is
there a robbery?
No. Just theft. The answer would be different if the place was
uninhabited because breaking of any wall or window or exiting
through the window will be considered robbery in an
uninhabited place. Whether if it’s for entry or exit, it does not
matter, provided it is uninhabited. But for inhabited, it must be
for the purpose of entrance.
Robbery in a dwelling with violence and intimidation
If robbery is committed in a dwelling with the employment of
violence and intimidation, the crime would be robbery with
violence against or intimidation of persons, the dwelling will
become aggravating.
Chapter Two – Brigandage
Brigandage
A crime committed by more than three armed persons who
form a band of robbers for the purpose of committing robbery
in the highway or kidnapping person for the purpose of
extortion or to obtain ransom, or for any other purpose to be
attained by means of force and violence.
Brigandage/Highway
Brigandage in the RPC
Robbery in PD 532
Mere formation of the group is Actual robbery is punished;
punished; can only be may be committed by only 1
committed by 4 or more person; robbery must be
armed persons indiscriminate
Ordinary robbery in the highway
Committed on the highway but not indiscriminate
Mere formation is a crime
Brigandage is also a conspiracy. In brigandage the mere
formation of the group is already a crime. They have not yet
done robbery or any other crime. In effect, brigandage is also a
crime involving an agreement, it is like a crime of conspiracy
but it is for a specific crime.
Chapter Three – Theft
Elements of Theft according to Viada
1. There is taking of personal property;
 Taking may also involve receiving
2. Property taken belongs to another;
 Ownership is not necessary, can be a tenant
3. Taking was done with intent to gain;
4. Taking was done without the consent of the owner
 Not against the will otherwise, it becomes robbery
with intimidation
These 4 elements of theft will become robbery depending on
the means employed. If coupled with violence against or
intimidation of persons or force upon things, then it becomes
robbery.
Taking
Jain v. People, September 28, 1994
For theft to be committed there must be physical handling for
personal property.
People v. Avi (not visible)
The most fundamental notion in theft is the taking of the thing
to be appropriated into the physical power of the thief, which
idea is qualified by other condones, such as that the taking
must be effected animo lucrandi and without the consent of the
owner; and it will be here noted that the definition does not
require that the taking should be effected against the will of the
owner, but merely that it should be without his consent – a
distinction of no slight importance.
Kinds of Possession
The kinds of possession find relevance in determining whether
the crime is estafa or theft, simple/qualified.
1. Physical or Material Possession – Theft or qualified
theft is the crime committed when what is transferred is
material or physical.
PP v. Locson
Example: Bank teller, store clerk
Fiscal: Just because there is receiving and not taking, it
doesn’t mean that there is estafa. The “taking” could also
include receiving. So long as in receiving the nature of the
possession remains to be physical, misappropriation
constitutes theft, and not estafa.
But when there is receiving and the nature of possession
is juridical, it is estafa and not theft/qualified theft.
2. Juridical possession
A possession which gives the transferee a right over the
thing which the transferee may set up even against the
owner.
Where the delivery of the goods to be sold on commission
involved a transfer of juridical possession thereof, the
crime resulting from the misappropriation of the goods or
of the proceeds thereof would be estafa and not theft,
simple or qualified.
Fiscal: Receiving in estafa could also mean taking. When
there is delivery of the goods to the recipient for the
purpose of selling the same, there is contract of agency,
such that the receiver or recipient is authorized to do
something about it, not merely physically possessed it.
Thus its possession is juridical. However, if the purpose of
giving it is for the purpose of repairing the same, no
agency is created but only a service contract. The
possession remains physical and not juridical.
Ownership
When what is transferred is ownership, there is only civil
liability. The same is true if coupled with physical and juridical
possession. No crime is committed because how can you steal
something that belongs to you.
People v. Cahilig, July 30, 2014
Penalty for Qualified Theft with Abuse of Confidence involving
an amount more than P12,000 is Reclusion Perpetua.
This is because under Article 310, the penalty shall be 2
degrees higher than that provided under Article 309, which is
Prision Mayor for Theft involving amounts over P12K or P22K.
Fiscal: NEVERMIND CAHILIG. By virtue of the amendments
introduced to the RPC, the amounts have changed although it
remains two degrees higher.
Prior to amendment, where the value of thing taken is more
than P12,000, the penalty is prision mayor. And now if the
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thing was taken by “maid,” it becomes qualified theft
punishable with two degrees higher, i.e. Reclusion Perpetua.
To illustrate: if a thief stole a phone worth P15K, he will be
punished with prision mayor. But if it were a domestic helper, it
is qualified theft punishable with Reclusion Perpetua. Same is
true with robbery.
Case Study
Juan was employed by Pedro to do certain carpentry jobs
in his house for two weeks. Juan was not staying in, but
he usually eats his meals together with Pedro’s other
employees in Pedro’s kitchen, without the latter’s express
permission. One day, Juan surreptitiously went inside the
bedroom of Pedro and stole the laptop and wallet which
were lying on the table. Is Juan liable for Qualified Theft?
No. He is merely liable for theft because he was not
considered a domestic helper enjoying the trust and
confidence of the victim.
Wayne Jain vs People. Sept. 28, 1984.
For theft to be committed there must be physical handing for
personal property. Such a condition is not present in the case
at bar for at no time did the petitioner lay his hands on the
sugar canes which belonged to others. The petitioner did not
commit theft but he committed estafa.
Is there a complex crime of estafa through theft?
Juan stole a pawnshop receipt belonging to Pedro, which
represented Pedro’s pledge of jewelries to ABC Pawnshop.
Juan then went to the pawnshop and, pretending to be Pedro,
redeemed the jewelries.
The taking of pawn tickets payable to bearer without the
owner’s consent, with intent to gain and without violence or
intimidation against persons, nor force upon things, constitutes
the crime of rape.
The redemption of pawned jewels by means of pawn tickets to
bearer, effected by a person who has stolen said tickets, and
pretends to own said jewels, availing himself of the numbers of
said tickets to identify the jewels, but without presenting the
aforesaid tickets, constitutes the crime of estafa.
The accused, then, committed the crimes of theft and estafa,
the former being a necessary means for the commission of the
latter. (Pp. v. )
Ordinary complex crime can be weird sometimes because just
as long one felony is a means of committing another, you have
a complex crime. It is not like the special complex crime that is
fixed, you cannot change the name. in ordinary complex crime
it could be anything.
So what happened here is he stole a receipt and after stealing
he used it in order to commit fraud or deceit. He could not have
committed the estafa were it not for the theft. The crime here
became an ordinary complex crime of estafa through theft.
When you complex, the words used are either with or through.
When the words used are in relation to, you do not have a
complex anymore. For example, homicide in relation to RA
10591 (Illegal Possession of Firearm), you are not complexing.
You are just saying that this homicide is committed with the
use of a firearm and therefore, the firearm becomes
aggravating and the penalty is not the penalty under the RPC.
This is still homicide, however, the penalty is not taken from
the RPC but from the special penal law.
Acts of lasciviousness in relation to RA 7610 (Child Abuse
Law). Acts of lasciviousness is not defined as a crime under
the Child Abuse Law so you have to refer to the RPC for the
definition of the crime. But the penalty will be taken from the
Child Abuse Law. In the Child Abuse Law, the penalty would
be reclusion temporal which is higher.
Libel in relation to the cybercrime law. The definition of libel is
in the RPC, the penalty is in the cybercrime law. That is not
complexing. You do not complex special penal laws.
Article 310 – Qualified Theft
Qualifying circumstances
1. Theft is committed by a domestic servant
2. Theft is committed with grave abuse of confidence
3. Property stolen is a motor vehicle, mail matter, or large
cattle
4. Coconuts are taken from plantation
5. Fish is taken from fishpond or fishery
6. Property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.
The 4 elements of theft will become qualified theft depending
on:
 Who committed the crime?
 What was the crime?
 What is the thing taken?
Penalty for Qualified theft
Two degrees higher
Stages in Qualified Theft
No more frustrated theft. Only attempted and consummated. It
also applied in qualified theft.
Qualified theft committed with grave abuse of confidence
Grave abuse of confidence is a mere circumstance which
aggravates and qualifies the crime. It is not necessary for said
circumstance to be premeditated in order to be taken into
consideration. It’s presence in the commission of the crime is
sufficient.
People v. Syou Hu, GR No. 45765, Jan. 29, 1938
Grave abuse of confidence is a mere circumstance which
aggravates and qualifies the crime. It is not necessary for said
circumstance to be premeditated in order to be taken into
consideration. Its presence in the commission of the crime is
sufficient.
Fiscal: In order for grave abuse of confidence to qualify, it
does not need to be premeditated nor specifically sought for.
The mere fact that there was trust and confidence reposed
upon the offender, it will automatically qualify the crime of theft.
For a domestic helper to be held liable for qualified theft, it is
not required that the employment was purposely sought for in
order to commit theft. This is true regardless of the years of
employment or altercation between the employer and the DH.
It is the mere presence of the circumstance of “trust and
confidence” reposed upon the offender that will qualify the
crime of theft.
Viray v. People, GR No. 205180, Nov. 11, 2013
Accused was a laborer paid on a daily basis to feed the dogs
of the victim. He destroyed the locked doors of the victim’s
house and stole jewelleries.
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Held: Accused cannot be convicted for “Robbery” because
there was no allegation of “Force upon things” nor for
“Qualified theft” because of the absence of the qualifying
circumstance of grave abuse of confidence. The accused was
not a domestic helper and did not enjoy the confidence of the
victim, who locked the doors. Thus, the crime committed is
only simple theft.
Fiscal: Accused was not allowed to get inside and as a matter
of fact, he had to destroy the locked door to gain entry. The
crime should have been robbery with force upon things but
since this is not alleged, he cannot be convicted for such
crime. The accused cannot also be convicted of qualified theft
in the absence of qualifying circumstance of grave abuse of
confidence.
Circumstance of commission with grave abuse of
confidence v. property stolen is vehicle
Paramount v. Remondeulaz, Nov. 28, 2012
The car was entrusted by the owners to a car accessory expert
for the purpose of adding accessories and improvement. The
later did not return after the lapse of 3-day period agreed upon.
Was there qualified theft when the car was entrusted and not
“taken without owner’s consent”?
Held: Theft can also be committed by misappropriation when
the accused did not have juridical possession.
Fiscal: In this case, there was no taking but in fact there was
receiving. The crime is qualified theft because the thing taken
is the car itself, regardless of the trust and confidence. What
qualifies the crime is the fact that the thing taken is a motor
vehicle.
It would have been different if only the accessory in the vehicle
was taken because in such case, it has to be determined
whether there was trust and confidence reposed. In this
instance, the qualifying circumstance will not be the motor
vehicle, but the trust and confidence reposed.
Why not estafa when there was receiving and not taking in
the case of Bustinera?
The crime committed is not estafa because the repairman or
the expert did not have juridical possession. There was no
authority conferred upon the repairman to do anything on the
car except for installation of some accessories. Its only
possession is limited to physical or material possession and
not juridical. Thus, the crime is theft and not estafa.
Had he been a car dealer and the car was entrusted for the
latter to sell it, this will give rise to contract of agency. Thus, the
possession of the car dealer is juridical and, in case of
misappropriation, the crime is estafa, and not theft.
Qualified Theft v. Anti-Carnapping Law
Anti- Carnapping Law is a more recent law and more specific
penal law as it specifically governs theft involving motor
vehicles.
People v. Bustinera, GR. No. 148233, June 8, 2004.
Taxi driver failed to return his taxi.
Held: Article 310 has been modified with respect to certain
vehicles. “When statutes are in pari materia or when they
relate to the same person or thing or cover the same specific
matter or have the same purpose or object, the rule dictates
that they should be construed together. Accused who was
charged for qualified theft but convicted for Anti-Carnapping
Law.
Fiscal: In the case of Bustinera, the driver who failed to return
the taxi was charged for qualified theft under Article 310, RPC
alleging abuse of confidence and the thing entrusted was a
motor vehicle.
The Supreme Court however convicted the accused under
Anti-Carnapping Law this being a more specific law governing
theft involving motor vehicles. Thus, applying the rules in
statutory construction that between a later law and older law,
the former governs and between a general law and a more
specific law, the latter prevails. Hence, between qualified theft
under the RPC and Anti-Carnapping Law, the latter prevails
since it is not only a later law but also a much more specific
law.
Even if Anti-Carnapping Law is not included in crime of
qualified theft, or vice versa nor an attempt of the other, but the
fact that the narration of facts in the information could also
constitute violation of Anti-Carnapping law, there being same
set of elements that would also constitute the crime of
carnapping, the accused can still be convicted for Anti-
Carnapping Law.
Accordingly, the ratio decidendi of the court is that Art 310,
RPC has been modified. Although the RPC specifically
mentions motor vehicle as qualifying circumstance of the crime
of theft, but with the enactment of Anti-Carnapping Law, there
are now two statutes that are in pari materia or they relate to
the same thing or matter. The rule provides they should be
construed together.
Note: There can also be no prosecution under both laws since
both have essentially the same elements and prosecution
under both will violate the right of the accused against double
jeopardy.
Bustinera (2004 case) v. Remondeulaz (2012)
There seems a conflict between the two cases but they can
stand together.
In the case of Remondeulaz, the Supreme Court may seem
like reverted to Article 310, RPC but the discussion of issues in
said case does not revolve around the nature of the thing taken
but as regards the issue on the taking as against receiving as
well as the trust and confidence.
Author’s Note: From the perusal of the Remondeulaz case,
there is no mention of trust and confidence.
In Bustinera, the focal point of discussion clearly pertains to
the nature of the thing taken. Thus, if the thing taken is a motor
vehicle, Anti- Carnapping Law governs.
Fiscal: The newer jurisprudence adopts Bustinera. Thus it
remains to be controlling. However, in Remondeulaz would
apply when the issue involves “taking as against receiving” and
“trust and confidence” without regard to the nature of the thing
taken.
Had it been that the thing taken was merely accessory of the
car, and not the car itself, then the crime would be qualified
theft.
RA 10883 “The New Anti-Carnapping Law” introduces
amendments to the old Anti-Carnaping law. Section 3 thereof
provides that:
Section 3. Carnapping; Penalties.— xxx
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Any person who is found guilty of carnapping shall, regardless
of the value of the motor vehicle taken, be punished by
imprisonment for not less than twenty (20) years and one (1)
day but not more than thirty (30) years, when the carnapping
is committed without violence against or intimidation of
persons, or force upon things; and by imprisonment for not
less than thirty (30) years and one (1) day but not more than
forty (40) years, when the carnapping is committed by means
of violence against or intimidation of persons, or force upon
things; and the penalty of life imprisonment shall be imposed
when the owner, driver, or occupant of the carnapped motor
vehicle is killed or raped in the commission of the carnapping.
Fiscal: All kinds of carnapping which deal with motor vehicles
on land including motorcycle has a penalty of reclusion
perpetua.
Author’s Note: From the above law, it does not use the
nomenclature of RPC but Fiscal says Reclusion Perpetua.
Relevance of the Amendment
The law does not take into account the nature nor the value of
the vehicle taken. Thus, a habal-habal driver who would take
and refuse to return the motocycle entrusted to him will
likewise be held liable for Anti- Carnapping Law and will be
remitted with the same harsh penalty of reclusion perpetua as
compared to when a taxi driver will take away the taxi
entrusted to it and would suffer the same penalty.
Qualified theft of coconuts
Coconuts may be stolen while still in the tree or deposited on
the ground. Provided, it is within the plantation premises
Qualified theft if property is taken on the occasion of
calamity
When Yolanda happened and there was looting, that was
qualified theft. The fact that people were hungry will only
become ordinary mitigating circumstance but the penalty is still
2 degrees higher.
Chapter Six – Swindling and Other Deceits
Two elements of Estafa:
1. Defraudation by abuse of confidence or by means of
deceit.
Modes of commission:
a. With unfaithfulness or abuse of confidence
b. By means of falls pretenses or fraudulent acts
c. Through fraudulent means
2. Damage or prejudice capable of pecuniary estimation is
caused to the victim.
Three ways of committing Estafa:
1. By abuse of trust and confidence,
2. By means of false pretenses or fraudulent acts and
3. Through fraudulent means
Estafa par. 1: Unfaithfulness or abuse of confidence
a. By altering the substance, quantity or quality or anything of
value which the offender shall deliver by virtue of an
obligation to do so
b. By misappropriating or converting money, goods, or other
personal property received by the offender in trust or
commission or for administration or under any other
obligation involving the duty to make delivery of or return
the same even though such obligation be totally or
partially guaranteed by a bond, or by denying having
received such money, goods or property.
c. By taking undue advantage of the signature of the
offended party in blank, and by writing any document
above such signature in blank, to the prejudice of the
offended party or any third person.
Note: The issue of the kind of possession to constitute Estafa
is only true for 1b. Not for the other kinds of Estafa.
If Juan sells a laptop to Pedro with deceit, that is Estafa even if
Juan is the owner of the laptop and after the sale Pedro will
become the owner. The issue of the kind of possession does
not matter if the means of commission of Estafa is other than
1b.
Estafa v. Theft/Qualified theft/Robbery
Estafa Theft/Qualified theft/Robbery
Juridical possession Merely physical or material
If possession is coupled with possession
ownership, no more crime.
However, this is true only for
1b and not for all estafa
In Theft or Qualified Theft or Robbery, there is merely physical
or material possession. So that if the possession is juridical in
nature, the crime would not be theft anymore, it would become
Estafa. If the possession is coupled with ownership, there
would be no more crime. That is only true for 1b, not for all
kinds of Estafa.
Illustration:
Juana owns jewelry and she asks Maria to give the jewelry to
Pedro because Pedro already bought it or he wants to see the
jewelry. What kind of possession does Maria have over the
jewelry? Merely physical or material. If Maria pockets or
misappropriates the jewelry, the crime would be theft or
qualified theft because of the confidence. So why theft or
qualified theft? Because of the abuse of confidence and the
nature of possession which is merely physical or material.
If Juana tells Maria that Maria is authorized to sell the jewelry,
she may mark it up or have a commission in the proceeds. If
she cannot sell all the jewelry she has to return it, or if she is
able to sell part of it she has to remit the proceeds. That is 1b.
Because there is an agency created between Juana and
Maria, and Maria has the obligation to return the same thing.
She cannot return another thing. It must be the same thing or
remit the proceeds if the thing is sold. If Maria is able to sell it
to Pedro, but Maria did not remit the proceeds, the crime would
be Estafa. Because the possession of Maria is juridical. There
is a contract of agency whereby Maria has the obligation to
return but instead of returning, she misappropriated the thing
or the proceeds, that is 1b.
However, Juana, owner of the jewelry, asks Maria to buy the
jewelry in five installments. So Maria got the jewelry but did not
pay for it nor return the same. What is the crime? There is no
crime. Because what transpired is a contract of sale. When
there is a contract of sale, there is a transfer of ownership. So
Juana is not the owner anymore. The owner now is Maria.
Maria’s obligation is not to return but to pay. And the obligation
to pay is civil in nature and not criminal. No one can be
imprisoned by reason of an unpaid debt.
Do not be confused of this thing called ownership. It does not
always mean that because there is a sale and there is transfer
of ownership, that we cannot have Estafa anymore. We can
still have Estafa even if there is transfer of ownership, if the
kind of Estafa is not 1b.
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For example, Juan says, I am the owner of USC. I will sell
USC to Pedro and Pedro bought USC. It turned out that Juan
is not the owner of USC. Is there a contract of sale? Yes. But is
there Estafa? Yes. Why do we not go back to possession?
Because this is not 1b. This is Estafa by fraudulent acts or
false pretenses.
Estafa par. 2: False Pretenses
a. By using fictitious name, or falsely pretending to possess
power, influence , qualifications, property, credit, agency,
business or imaginary transactions; or by means of similar
deceits.
b. By altering the quality, fitness, or weight of anything
pertaining to his art or business.
c. By pretending to have bribed any government employee.
d. By postdating a check, or issuing a check in payment of
an obligatiom when the offender had no funds in the bank
or his funds deposited therein were not enough to cover
the amount
e. By obtaining any food, refreshments, accommodation at a
horel, inn, restaurant, boarding house, lodging house or
apartment house and the like without paying therefore,
with intent to defraud.
In the example, there is using fictitious name, falsely
pretending to possess power, qualification or property. The
crime is 2a. So, do not immediately conclude that because
there is transfer of ownership, automatically there is no more
Estafa. The issue of different kinds of possessions refer only to
1b. There are many kinds Estafa.
You will notice that altering quality, fineness, weight is found in
Estafa no.2 as well as in Estafa no. 1. It is also 1(a) and it can
be 2(b). The difference is the mode. How was the altering
committed? Was it because of abuse of confidence? Like a
relationship that has been breached? Or is it because of sweet
talking, in which case there is deceit?
Estafa No.1 – Abuse of Confidence
Estafa No.2 – Deceit
Estafa No.3 – Fraudulent Means
Deceit and fraud are two different things.
The more common ones in 1 is b and the more common in
paragraph 2 is may be a and d.
Note: Fixer who fails to deliver, that is estafa. Pretending to
have bribed any government employee, this is actually fixing.
Whenever a check is issued and there is consideration and it is
made as a tool or as instrument so that something valuable
would be given in exchange for the check, then there is estafa
if the check bounces.
When the checks are issued in payment of preexisting
obligation there will be no more estafa. Why? Because you
have already deceived the creditor before, you don’t need the
checks anymore.
Example: Juan borrowed money from Pedro employing deceit.
If Pedro gives Juan one million, it is not because of any check
but because of deceit. When Pedro asked Juan to pay, the
latter issued checks. Subsequently, these checks bounced.
Pedro cannot anymore file for estafa against Juan under 2(d).
Because the checks were not instrument of the deceit. But,
nonetheless he can still file for estafa for pretending to possess
credit, etc. for the deceit.
Supreme Court said that for 1(b) there is an additional element,
that is demand. The demand need not be in writing.
Why is there a need for demand under 1(b)? Note that unless
the obligation to return is with a period, the damage will not
begin to run or will not be incurred if there is no demand.
Example: Juana entered into an agency with Maria, authorizing
Maria to sell pieces of jewelry for a commission. If unsold, the
jewelries must be returned, or is sold the proceeds of the
jewelries must be remitted. In order for damage to ripen, there
must be either a demand to remit or demand to return. Without
that demand there can be no estafa under 1-b. The filing of
estafa 1-b would be deemed premature.
Whenever there is a crime involving a check, whether it is for
estafa 2(d) or BP 22, not only must there be a demand, there
must be a demand in writing in a form of notice of dishonor. It
is very specific. There should be a notice of dishonor for estafa
2(d) or BP22. Without notice of dishonor, you cannot yet file a
case for estafa 2(d) or BP22.
Estafa par. 3: Fraudulent means
a. By inducing another, by means of deceit, to sign any
document.
b. By resorting to some fraudulent practice to insure success
in a gambling game.
c. By removing, concealing or destroying, in whole or in part
any court record, office files, document or any other
papers.
To recap, there are three types of estafa. There are two
general elements. The second element or the last element is
damage. If there is intent to cause damage, but there is no
actual damage, the estafa is not consummated, it is merely
attempted.
Fraud v. Deceit
Important to know the difference because deceit is only
present in no.2, whereas fraud can be present in 1, 2, and 3.
Joson v. People, GR No. 178836, July 23, 2008 (citing
People v. Menil)
Deceit is more specific. Fraud is broader and a more general
term. Deceit is included in the word fraud. So if the allegations
in the information, talks about fraud, deceit is already included.
So all kinds of estafa no.2 is already included if the information
alleges fraud. But if the information, alleges only deceit, not
fraud. Then there can be no conviction under estafa no.3.
Brokmann v. People, GR No. 199150, Feb. 6, 2012
Estafa is committed by (a) abuse of confidence or (b) means of
deceit.
Deceit is not an essential requisite of estafa by abuse of
confidence; the breach of confidence takes the place of fraud
or deceit, which is a usual element in the other estafas. In this
case, the charge against the petitioner and his subsequent
conviction was for estafa committed by abuse of confidence.
Thus, it is not necessary for the prosecution to prove deceit.
In the previous example, failure of Maria to remit the proceeds
of the sale to Juana is already estafa by abuse of confidence.
Even if there is no deceit involved, there is still estafa. Because
deceit is not required in estafa no.1. It is only required in estafa
no.2.
Espino v. People, GR. 188217, July 3, 2013
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Elements of Art. 315 1(b)
a. That money, goods, or other personal properties are
received, by the offender in trust, or on commission, or
administration, or under any other obligation involving the
duty to make delivery of, or to return, the same;
b. That there is a misappropriation or conversion of such
money or property by the offender or of a denial of the
results thereof;
c. That the misappropriation or conversion or denial is to the
prejudice of another; and
d. That there is a demand made by the offended party.
Elements of Article 315, 2(a)
a. There is false pretense, fraudulent act or fraudulent
means;
b. The false pretense, fraudulent act, or fraudulent means is
made or executed prior to or simultaneously with the
commission of the fraud;
c. The offended party relies on the false pretense, fraudulent
act or fraudulent means, that is, he is induced to part with
his money or property because of the false pretense,
fraudulent act or fraudulent means.
d. That as a result thereof, the offended suffered damages.
Notice that demand is not required for 2(a).
Guzman v. CA, 99 Phil 703
Possession of a sales commission agent is juridical in nature,
hence his conversion of the property is estafa 1(b).
People v. Maglaya
Where a sales agent is only authorized to make bookings and
is not authorized to deliver or collect stocks will be liable for
theft if he misappropriates them.
Fiscal: no contract of agency in this case, therefore his
possession is not juridical in nature.
ESTAFA: juridical possession from ownership
In a sale of an appliance on a trial basis, if the buyer did not
reject the product but instead sold it to another, there is no
Estafa but merely civil liability. Ownership passed after the trial
period.
If the owner reserves ownership until after full payment, there
could be estafa.
But when there is transfer of ownership and at the same time a
chattel mortgage, when the buyer is made to execute a chattel
mortgage that means that ownership has passed. And the
purpose of the chattel mortgage is merely so that there can be
an automatic authority to repossess.
Attempted Estafa
Lateo v. People, 666 Phil 260, cited in Villegas v. People,
GR 218625, August 17, 2015
In instances where only intent to cause damage and not actual
damage has been proven, the accused must be convicted only
of attempted estafa.
Note: Do not be confused with estafa and falsification of public
documents. In falsification of a private document, damage is
required but in falsification of public documents, damage is not
required. In Art. 172, even the intent to cause damage would
be sufficient to consummate the falsification. This is not the
case in estafa.
Villegas v. PP, Aug 17, 2015
Petitioner committed attempted estafa when
 She fraudulently represented herself to be the owner
of a parcel of land covered by a TCT which does not
exist in the records of the Registry of Deeds; and
 Such misrepresentation induced the victim to grant
additional loan.
If not for the timely discovery by the NBI, damage would have
been caused.
Since there was no actual damage, the crime was in its
attempted stage.
There is a falsified private document which was executed
in order to deceive another but the latter was not
deceived. Thus, there was only intent to cause damage but
no actual damage caused. What should the crime be?
In Reyes and other cases mentioned in his book, it states that
there should be only one crime because we cannot complex
falsification by private document and estafa since there is only
one damage. We have to choose which one, should it be
estafa or should it be falsification by private document?
According to Reyes, the proper crime should be falsification by
private document.
Damage must be capable of pecuniary estimation.
We are taught that we can never complex falsification of
private document and estafa because there is the common
element. Under the doctrine of common element, you cannot
have two independent felonies because of this common
element. But it is possible that there can be separate damage.
Situation: Juan is the owner and Pedro is the tenant of the
apartment. Here comes Jose who forged and falsified the
signature of Juan in a letter which is a private document stating
that Juan is authorizing Jose to collect the rent. So, Pedro
gave the money to Jose. Jose did not give the money to Juan
resulting to the prejudice of Juan. If Juan will not be able to
collect anymore from Pedro, he will incur damages. But if Juan
will still be able to collect money from Pedro, it is the latter who
will incur damages. The point is, it cannot be complexed
because either way there is only one of them who will incur
damages, either Juan or Pedro.
What crime should be filed by Juan? It would be falsification.
Why not estafa? Because he was not the one that was
deceived. The deceit was not employed on him. He suffered
damage because his signature was falsified.
Situation: Pedro gave the money to Jose. Jose did not give the
money to Juan. Juan is now damaged. If Juan is damaged,
that means that he can no longer collect from Pedro. However,
if Juan can still collect the money from Pedro, it is now Pedro
who is damaged and not Juan.
If Pedro is able to produce a receipt, he will not pay anymore
and it is Juan who shall suffer damages. What crime should be
filed by Juan?
A: The crime would be falsification and not estafa because he
was not the one who was deceived. The deceit was not
employed on him. He suffered damages because his signature
was falsified.
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Situtation: If Pedro gave the money, but despite the fact that
Pedro gave the money, Juan still insists on collecting from him
and he is forced to pay otherwise he will be ejected from the
property. Who now suffers the damage?
A: It will now be Pedro who will suffer damages.
TN: The person whose signature is forged can file for
falsification. On the other hand, the person who can file for
estafa is the one to whom the deceit is employed.
Civil Liability in Estafa
Javier v. People
Once Estafa is fully committed, the criminal liability of the
accused cannot be converted to civil liability by agreement of
parties
Pp v. Nery
Where the criminal liability is only incipient, a novation by the
parties may erase criminal liability prior to filing of the criminal
case.
Fiscal: Insipient stage is that stage between the consummation
of the acts of estafa, but before the ripening into a criminal
liability.
Not all estafa has an insipient stage. For example, an estafa
under 2(a) has no insipient stage.
Victim is merely a witness in a criminal action
A crime is an outrage against the state. The role of a victim is
merely a witness. The private offended party therefore has no
power to stop the prosecution of the case. However, there are
still instances when the private offended party can do
something in order to avoid the filing of the case.
Examples:
1. Marriage in the case of rape – The marriage of the
rapist and the victim shall extinguish criminal liability.
2. Adultery or concubinage – Pardon or consent by the
offended spouse will extinguish criminal liability.
Demand in Estafa
However in estafa, there are certain kinds of estafa where
demand is necessary. In cases where demand is necessary
and there is an agreement before the demand, such as an
extension of the grace period. If the private offended party
agrees, then the private offended party is barred from filing the
case. It is even possible that the criminal liability will be
extinguished by novation.
If agreement is made after the criminal liability has ripened,
only the civil liability will be extinguished and not the criminal
liability.
TN: In cases where demand is necessary, a criminal case for
estafa will not ripen unless a prior demand is made.
Property crimes such as estafa are rights based and they can
only proceed if the petitioner wishes to proceed.
When Demand is an Element in Estafa:
Demand in estafa by deceit is not an element. Demand is an
element only in 2(d) and the demand should be made through
a notice of dishonor.
No demand is necessary if:
a) The obligation to comply is subject to a period.
b) When the accused cannot be found by due diligence
Demand in estafa by postdating a check is necessary
In estafa by postdating, the issuance of a check must be for
payment of an obligation existing at the time the checks were
issued.
Lito Corpuz vs People
No specific type of demand is required for 1(b). It may be
verbal and not in writing.
Fiscal: But take note that the ruling in Corpuz is not applicable
in 2(d) because in the latter it should always be in writing.
Asejo vs People
With regard to the necessity of demand, we agree with the CA
that demand under this kind of Estafa under 1(b) need not be
formal or written. The law is silent as to the form of demand in
1(b).
Thus, the non presentation of a written demand is not fatal to
the case.
Fiscal: However in the case of 2(d) and BP 22, it must always
be in writing through a notice of dishonor. Without such proof,
knowledge of the insufficiency of funds cannot be presumed.
Good Faith as a defense in Estafa
Recuerdo vs People
Estafa is a malum in se and because it is such, good faith can
be a defense. For one to be liable under 2(d), malice and intent
to defraud should be established.
There can be no estafa if a person acted in good faith.
SC ruled that petitioner’s defense of good faith was belied by
her own evidence. It was only after the CA affirmed her
conviction that she made remittances to the complainant.
Reimbursement or restitution does not extinguish criminal
liability, only civil liability. Estafa is an offense which must be
prosecuted by the state on its own motion.
Notice of Dishonor / Demand in Estafa Par. 2(d)
People vs Ojeda
Notice of dishonor is required under par. 2(d) of Art. 315 and
Sec. 2 of BP 22
While the RPC prescribes that the drawer must deposit within
three days from notice of dishonor, it requires the drawer to
pay within ____ receipt of notice of dishonor.
Without such notice of dishonor, knowledge cannot be
presumed.
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The accused was able to successfully raise the defense of
good faith and because he was able to successfully do so, he
was acquitted for estafa.
Good faith in this case was demonstrated by:
a) Checks were only guarantee checks, without
assurance of it being funded
b) Guarantee checks have been the usual practice
between the parties
c) Debt considered a payment scheme with the creditor
However, the same defense may not be applicable in BP 22
which is a malum prohibitum.
Corpuz
Lito Corpuz was charged with malversation and the penalty of
malversation is similar to estafa or theft, which will increase as
the amount increases.
Lito claims that it is unfair to have the same penalty as those
who have malversed a bigger amount. (same penalty for
person who stole P500,000 and P50,000,000).
Issue: Can the court impose a penalty which is higher than that
imposed by law?
SC: No, it is unconstitutional because it is violative of the right
to equal protection.
Art. 10 RPC states that offenses which are in the future may be
punishable under special laws are not subject to the provisions
of this Code. This Code shall be supplementary to such laws,
unless the latter should provide to the contrary.
The issue is the incremental penalty for estafa 1B, which
provides for additional penalty of 1 year for every P10,000.
Accused argues that these are based on the prevailing prices
in 1932 and would be steep under current circumstances.
Crimes Involving Documents
1. Art. 298 (Robbery)
Any person who with intent to defraud, by means of
violence or intimidation compels him to sign, execute or
deliver any public instrument or documents, shall be held
of guilty of robbery
2. Estafa 1 (c)
Estafa by taking advantage of the signature of offended
party while document is in blank.
3. Estafa 3 (a)
Inducing another to sign a document by means of deceit.
4. Estafa 3 (c)
If records are destroyed or removed in any court
5. Other forms of swindling Art. 316
Fictitious contract is executed to the prejudice of another.
Crimes involving Debt
1. Light coercion
When the landlady seizes the property of the tenant in
order to apply it to the rent.
2. Services Rendered Under Compulsion in Payment of Debt
(Art. 274)
Committed by any person in order to require or enforce
the payment of a debt compels the debtor to work for him
against his will as household servant or farm laborer
3. Kidnapping for ransom
Person is detained to compel him to pay a debt.
Crimes in involving labor
1. Art. 272 – Slavery
2. Art. 273 - Exploitation of child labor
3. Art. 274 - Services rendered under compulsion in payment
of debt
4. Art. 278 - Exploitation of minors – minor are made to
perform dangerous jobs
Where minors are made to perform dangerous jobs.
5. SPL: Worst forms child labor
When children are made to work under dangerous
circumstances.
6. Art. 288 Other similar coercions
7. Art. 289 – Formation, maintenance, and
Estafa Punishable under a Special Penal Law
Reyes v. People
Syndicated Estafa
Section 1, PD 1689. Any person or persons who shall commit
estafa or other forms of swindling as defined in Article 315 and
316 of the Revised Penal Code, as amended, shall be
punished by life imprisonment to death if the swindling (estafa)
is committed by a syndicate consisting of five or more persons
formed with the intention of carrying out the unlawful or illegal
act, transaction, enterprise or scheme, and the defraudation
results in the misappropriation of money contributed by
stockholders, or members of rural banks, cooperative,
"samahang nayon(s)", or farmers association, or of funds
solicited by corporations/associations from the general public.
It means that there are five or more persons committing the
estafa.
Examples of syndicated estafa: Pyramiding, investment scams
Penalty can reach up to reclusion perpetua or 30 years,
compared to estafa under the RPC where the maximum period
is only 20 years.
Estafa Under 315 2(d)
People v. Tan
Elements:
a. Post dating or issuing a check in payment of an
obligation contracted at the time the check was issued.
b. Lack of funds to cover the debt
c. Damage to the payee
d. Notice of dishonor
Accused purchased construction materials and issued checks,
which were subsequently dishonored. Demand was made to
no avail. On trial, accused said that he did not receive
materials and that it was delivered to a person not connected
to him.
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Accused was acquitted in this case because damage was not
proven. Even if there was damage insofar as the victim is
concerned, said damage was not caused by the accused.
It does not mean that if there was damage suffered, there can
automatically be conviction.
Case: You bought a car and issued 36 checks representing
one check for each month. All the 36 checks were dishonored.
How many case of BP 22?
Answer: 36. For each check dishonored, there is one case of
BP 22.
How many Estafa?
Only one because there is only one deceit
Estafa and BP 22; 1 act 2 crimes
Rodriguez vs Ponfirrada
The crimes of Estafa and BP 22 are separate and distinct from
each other. There is no identity of the crimes involved for which
double jeopardy will not attach.
No double jeopardy for BP 22 and estafa because they do not
have the same elements.
Civilly Liable for Estafa
Person committing the estafa
Civil Liability for BP 22
Gushaoca vs Ching
The person criminally liable for BP22 is the same person who
issued the check. Even if the check is owned by the
corporation, the directors who signed the check are criminally
liable.
Fiscal: It does not matter whether they benefitted or not. But
while they are criminally liable, they cannot be civilly liable
because they did not benefit from the check.
TN: There should be a notice of dishonor because knowledge
of insufficiency of funds is not presumed.
Complexing.
We cannot complex estafa and private document; we can
complex estafa and commercial, estafa and official, estafa and
public document.
PP vs Benito
Cannot complex and private document, but only with official,
commercial and public documents. In this case, Falsification
was not a means to commit, but only a means to conceal.
Fiscal: In PP. vs Benito what happened was that there was
deceit. In order to conceal the estafa, falsification was done.
Benito said, no complexing because the falsification was not a
means to commit but only done as a means to conceal.
Chapter Eight – Arson and Other Crimes Involving
Destructions
Arson
Two Kinds of Arson:
1. Destructive Arson
2. Simple Arson.
We do not have simple arson under the RPC, what we have is
only Art. 320. Art. 320 only deals with destructive arson. In PD
1613, we have simple arson, also destructive arson. The
destructive arson under the RPC and PD 1613 is different.
What is Arson?
Malicious burning of property. Must be malicious; if the burning
is not malicious, it cannot be arson, it can be damage to
property, resulting from negligence resulting to damage to
property.
Distinction between Simple Arson and Destructive Arson
1. kind
2. Character
3. location of the property burned.
4. Property burned
If the building is a dwelling or a residence, it will be covered
under PD 1613. It is possible that there are many houses
burned, so long as the intention is to burn a house and the
other burning was incidental, it would still be a crime of simple
arson.
Macabando case citing PP Soriano:
P.D. No. 1613 contemplates the malicious burning of public
and private structures, regardless of size, not included in
Article 320 of the RPC, as amended by Republic Act No.
7659.22 This law punishes simple arson with a lesser penalty
because the acts that constitute it have a lesser degree of
perversity and viciousness. Simple arson contemplates crimes
with less significant social, economic, political, and national
security implications than destructive arson. (G.R. No. 188708,
July 31, 2013)
Art. 320
Talks about burning of both public and private structures,
hotels, buildings, edifices vessels, aircrafts, factories military,
government or commercial establishment. Penalty is Reclusion
Perpetua
What happens if death results by reason of Arson?
The crime will still be Arson. The penalty is death, but by
reason of the repeal of the death penalty, the crime will not be
special complex-ed but only Simple Arson. Simple even in
death, provided that the structure burned is not public, but is a
dwelling/residence even if there is death.
Luminda case:
The crime was destructive. But, what was burned was only the
Pajero, thus it was destructive. When it is a residence, it is
always Simple Arson, even if there are many residences burnt
along with it. But the main objective should not be to burn the
entire village, even if there is death.
Fiscal P: Because if you have an entire village, and the
intention was to burn the whole village, even if they are
composed of dwellings, because of the magnitude of the
intention, it will become Destructive. But if the intention is only
to burn one, but as a result of burning one, several houses
were burned, the crime will remain to be simple arson, even if
death results.
Simple Arson under PD 1613
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Contemplates the malicious burning public and private
structure, regardless of size, not included in Art. 320, as
amended by RA 7959 classified as other cases of arson. This
includes:
1. Any building used as offices of the government or any of its
agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft,
platform or tunnel;
4. Any plantation, farm, pastureland, growing crop, grain field,
orchard, bamboo grove or forest;
4. Any rice mill, sugar mill, cane mill or mill central; and
5. Any railway or bus station, airport, wharf or warehouse.
Art 321-326-b, repealed
What remains in the RPC, is only Art. 320.
Sec. 4 PD 1613
There can be special aggravating circumstances in Simple
Arson. They will still remain to be simple arson. The fact that
the burning is with intent to gain, for example, you burn a
house to collect insurance that is Arson with Intent to Gain.
Special Aggravating Circumstances in Arson
1) Committed with intent to gain; or
2) Committed for the benefit of another; or
3) Offender is motivated by spite or hatred towards the
owner or occupant
4) Committed by a syndicate (3 or more persons)
PP v. Abayon
There is no complex crime of Arson with Homicide. The crime
would still be simple arson, if the main objective is to burn even
if there is still death. If the objective is to kill by fire, then
murder. If there is a murder and fire is utilized to conceal, then
there are two separate crimes of Arson and Murder. (GR No.
204891, Sept. 14. 2016)
Merely reiterated the early rulings of Malngan.
Accused intended to burn apartment which resulted to a death,
the death is absorbed. Penalty is RP to death because at that
time there is still death.
Can there be conspiracy in Arson?
Yes. Whether one penalized under the RPC or penalized
under the SPL. Conspiracy is always applicable.
When is the offender motivated by spite or hatred?
In a case, the husband had a fight with the wife, because of his
anger, he said to his wife, “I will get even, I will burn this
house.” He burned the house. It resulted in the neighboring
houses being burned as well. Was this now a case of
destructive arson considering the magnitude of the damage
caused? Or is it still simple?
This is still simple arson, it involves a residence and the
original intent was only to burn the residence. Notwithstanding
the fact that other houses were burned as well, the crime is still
simple arson.
Was there a special aggravating of motivated by spite or
hatred towards the owner or the occupant?
NO. The SC, instead of considering the utterance as special
aggravating, it considered the utterance as mitigating because
it constituted passion and obfuscation.
Q: What if buildings other than the residence are burned?
When the magnitude is so big, and the damage is so big, then
any structures under Art. 320 is involved, rail tracks, etc, this
will now be destructive under Art. 320. Therefore, it will now
become a matter of defense.
Under PD 1613, there is also a list of what constitute
destructive arson. So it is possible that an act may be
destructive under Art 320 of the RPC and not destructive under
PD 1613, vice versa.
The magnitude is one of the gauge to determine whether it is
destructive. If the intention is to burn a residence it is simple
arson even if other residences are also burned. But if it
involves the burning of any other buildings that are stated now
under destructive then it will become destructive.
Q: Real life situation. What if there is a husband and wife
quarrelling, the husband smashed the gas and ended up
burning the house. The burning is not intentional.
Simple arson if residence is burned. If other than residence is
burned, then it becomes destructive. If it is a destructive arson,
whether or not there is a mitigating circumstance of passion
and obfuscation will not matter anymore because it is only an
ordinary mitigating circumstance. The penalty would be
indivisible.
Q: What is the rule on aberratio ictus on Arson?
Determine what is the result. You file the case according to the
result, if the result is destructive arson, you will always file the
case in accordance with the result. So it becomes a matter of
defense. In aberratio ictus, usually it will result in complexing.
There is no complexing in arson.
In arson, it is always malicious burning whereas in aberratio
ictus, it is possible that it is intentional but not malicious. It
cannot be applied because one act resulting to two or more
less grave or grave offense. But if, Praeter intentionem, it is
still the same because the slightest burning still amount to
arson.
Q: What if I burn my own house? Is this not a
consequence of ownership?
Still arson. You can abuse but not in the sense burn it because
there is still a law that prohibits it.
When is Arson Consummated
Slightest burning will consummate arson it has to be a house
or a part of a house.
What constitutes a part of the house?
For example, one author says that if a curtain is burned it is
already arson. Is it part of the house? It is not part of the
house, it is an accessory to the house. If burned, it is malicious
mischief, unless you also partially burned the house.
Scenario: You tried to burn a building, you threw a torch
and it landed on the curtain and only the curtain is burned,
what is the crime?
Do not forget about attempted arson. It is attempted because
he was already committed some of the acts of execution but he
was unable to do all. It could be malicious mischief. Attempted
arson with malicious mischief. It must be in attempted stage. If
it is consummated, then everything would be absorbed.
Q: What if you threw a torch but ended up burning the
other house.
It can happen. The weirdest crimes may happen in
complexing. There is consummated arson, in the first; there
can be no consummated arson. The amusing thing about this
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is that it will result in a higher penalty than if both houses were
burned. If both are burned there is only simple arson. But if
there is a complex crime, penalty for arson will be at its
maximum.
Q: Can arson be committed through negligence?
It must be malicious. But the SC held in a case--imprudence
resulting in arson. It was sort of abandoned because to
constitute arson, it must be malicious burning. Malice negates
imprudence. Imprudence negates malice.
Q: If you light a fire in your backyard, because of the
strong wind, you set fire to your neighbor’s property?
There could be damage to property. In arson there must be
intent to burn the house.
Note: If it was found out that a building that is listed under
destructive arson is used as a residence, the crime will be
simple arson.
Chapter Nine – Malicious Mischief
In malicious mischief, we are talking about personal property
destroyed just for the sake of destroying it. But there must be
no misappropriation, if there is there will be theft. If what is
destroyed are large cattles, the law applicable is not RPC but
the Anti Cattle Rustling law. If what is destroyed are animals
that do not fall in the category of large cattles, there can be
maliscious mischief or other special penal law pertaining to
animals
Special cases of Maliscious Mischief – Art. 321
1. Causing damage to obstruct the performance of public
functions;
2. Using any poisonous or corrosive substance;
 This is aside from other special laws which may have
some sort of penalties but the penalty is imposed
other than the courts, such as government regulatory
agencies, e.g. DENR
 Example. Throwing toxic substances can be
maliscious mischief but the purpose must be to
destroy. If the purpose is just to dispose of it, then
maliscious mischief will not apply. Another law will
apply and the penalty there is not imposed by court
but by administrative agencies, BFAR or DENR.
3. Spreading any infection or contagion among cattle;
 Take note also of the anti cattle rusting law.
 Can they co-exist independently of each other? YES
because the manner of committing malicious mischief
under the RPC is specific. If large cattle is being
damaged not by intentionally spreading contagion
then it can still be punished under the Anti Cattle
rusting law.
4. Causing damage to the property of the National Museum
or National Library, or to any archive registry, waterworks,
road promenade, or any other thing used in common by
the public.
Chapter Ten – Exemptions from Criminal Liability in
Crimes against Property
ABSOLUTORY CAUSES UNDER ART. 332
Absolutory causes have the effect of not having criminal
liability. A similar effect as an exempting circumstance but it is
not exactly exempting circumstance. It just has a similar effect.
Crimes:
1. Theft
2. Swindling
3. Maliscious mischief
Relatives:
1. SAD, also by affinity. Includes common-law spouses,
adoptive and stepchildren, parents-in-law
2. Widowed spouse
 Only insofar as the conjugal property with the
deceased spouse is concerned
3. Brothers and sisters including in-laws, living together
o If you steal money from you mother ot parents, no
liability.
Carungcong v. PP, GR no. 181409, Feb. 11, 2010
Does Art. 332 apply to variations of the crimes mentioned
therein?
“the coverage of Art. 332 is strictly limited to the felonies
mentioned therein. The plain, categorical and unmistakable
language of the provision shows that it applies exclusively to
the simple crimes of theft, swindling and malicious mischief. It
does not apply in complex crimes.”
This does not apply to robbery as the enumeration in art. 332
are exlusive.
If an addict son threatens the mother in order that the latter will
give him money, that is not any more theft. That might robbery
and robbery is not one of the crimes included in Art. 332. He
can be criminally liable.
There will be an issue though if we are talking about robbery
with use of force upon things. Because if you live in the same
house, if you climb over the window in your own house, how
can there be illegal entry when you are an occupant of the
house? But with respect to robbery with violence or against or
intimidation of persons, the relationship is not anymore
absolutory. There will be a criminal liability.
Does Art. 332 still apply even with the death of the
common relative by affinity, e.g., crime committed
between in-laws where the spouse is already dead?
Two views re termination of relationship by death:
1. Terminated Affinity view – relationship by affinity
terminates with the dissolution of marriage, except when
there is a surviving issue.
2. Continuing Affinity View – relationship by affinity endures
even after the dissolution of marriage.
For purposes of Art. 332, the 2nd view applies, in view of the in
dubio pro reo principle, which interprets the law in case of
doubt in favor of the accused.
TITLE ELEVEN – CRIMES AGAINST CHASTITY
Most crimes in title 11 are private crimes such that they cannot
be prosecuted without the complaint of the private offended
party.
Chapter One – Adultery and Concubinage
Article 333 – Adultery
Elements:
1. Woman is married;
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2. She has sexual intercourse with a man not her husband;
3. The paramour must know her to be married.
Under criminal procedure, in adultery both the spouse and the
paramour must be charged. Failure to charge the other one will
operate as a consent or pardon. The only time when a party
may not be included on the charges is when the other party
already died. But as long as both of the parties are still alive,
they must be included in the charges.
If the paramour does not know that the she was married,
can the wife still be prosecuted for adultery?
For purposes of filing the case, both of them shall be charged
because it will become jurisdictional, otherwise it be dismissed.
The lack of knowledge will be a matter of defense.
Article 334 – Concubinage
Elements:
1. Man must be married
2. He either:
a. Kept a mistress in the conjugal dwelling;
b. Has sexual intercourse with a woman who is not his
wife under scandalous circumstances
c. Cohabited with her in another place
3. Concubine must know the man to be married.
What if both of them are married?
There is a possibility of 2 crimes. Adultery and concubinage.
Situation:
Aida, Lorna and Fe. Juan has a girlfriend Aida. He visits
her MWF. He visits Lorna T-TH. FE, on the other hand, is
visited Saturday. Juan here does not live with them. All 3
gave birth. However, Aida is a married woman and Juan
knows of her marriage. What is the crime committed?
No concubinage, only Adultery.
Adultery and concubinage
 Private crime; must be filed by the offended spouse
 Must include both parties, unless one them is dead.
 Consent or pardon by the offended party will negate
criminal liability
(Art 344)
If it is the children who will file the case in court, the case can
be dismissed. It should be the offended spouse. The children
may instead file a case under RA 9262 (VAWC) but not
adultery or concubinage.
Chapter Two – Rape and Acts of Lasciviousness
Rape (transferred to Crimes against Persons)
Article 336 – Acts of Lasciviousness
Acts of lasciviousness under Art 336 must be committed by the
same means as Rape under the old law (or Art 335, RPC).
Only rape was amended by RA 8353.
If the Acts of Lasciviousness is committed with the consent of
the offended party, it is a crime only if the victim is a virgin and
over 12 but below 18. (Art. 339, RPC) Crime is committed
regardless of consent if victim is below 12 y/o.
Two Kinds:
1. Art. 336- AoL against the will
a. 3 modes of committing (same mode of
committing rape under the old law, not under RA
8353)
i. violence or intimidation
ii. victim is deprived of reason or otherwise
unconscious
iii. victim is below 12 years old
2. Art. 339 –Consented AoL
Under the new law on rape (RA 8353), there are now 4 modes
of committing rape. The 4th mode of committing rape on RA
8353 only applies only to rape. As to acts of lasciviousness,
there are only 3 modes of committing under the old law on
rape.
If the victim is below 12 years old, it cannot be committed
under Art 339, it is always Art. 336. It is considered to be
without consent.
Chapter Three – Seduction, Corruption of Minors, and
White Slave Trade
Seduction
Seduction involves carnal knowledge. The victim must be a
woman. For obvious reasons, the offender must be a man.
There is no such thing as a seduction committed against a
man. It is always a woman. Same is true with qualified
seduction.
Kinds of seduction
1. Simple seduction
 Being a virgin is not required
2. Qualified seduction
 What makes the crime qualified are two (2) things: (1)
who committed the crime – only committed by person
with moral ascendancy over the victim and, (2) victim
is a virgin.
Article 337 – Qualified seduction
Elements:
1. victim must be a woman;
2. a virgin above 12 y/o and less than 18 y/o;
3. the offender is a person in authority, priest, home-servant,
domestic, guardian, teacher, or any person entrusted with
the education or custody of the woman seduced.
Legal virginity v. physical virginity
As in Consented Abduction, Qualified Seduction does not
require physical virginity (virgo intacta).
One who maintains illicit relations with other men is not legally
virgin; one who had sexual relations with one and the same
man who was the accused is legally considered a virgin. (US v.
Suan, 27 Phil 12 and US v. Casen, 34 Phil 808)
Hence, even if the victim already has a child or is already
married, she can still be regarded as virgin in the legal sense
for purposes of qualified seduction.
House-servant v. domestic
A domestic is any person living under the same roof as a
member of the same household, including long-term boarders
who are not transients. (US v. Santiago, 41 Phil 793; PP v.
Subingsubing, GR nos. 104942, Nov. 25, 1993)
Qualified seduction may be committed by a house servant and
a domestic. Both are used separately under the law. Why
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separately enumerated? They do not mean the same thing. A Chapter Four – Abduction
domestic is any person living under the same roof, need not be
a house servant. There are also house servants who are not Abduction
domestic. The on-call washerwoman/cleaner.  The victim must be a woman;
 The taking must be with lewd designs
For purposes of Qualified theft, the house servant must be  If the woman is not a minor, the abduction must be with
domestic. He/she must be living in the same household. the use of force
But for purposes of qualified seduction, it does not matter that
he is not a domestic provided that he is a house servant. Two Kinds:
1. Forcible Abduction
Teacher in Qualified Seduction  Age does not matter
He maybe a member of the faculty of the same school or  It can be committed even if the woman is already of
college even if the victim is not taking subjects under him, as age
he is still deemed to possess some influence over her. (Santos  If the woman is below 12 years old, even if there is
v. PP, 40 OG 23) consent, automatically the crime is forcible abduction.
2. Consented Abduction
As a teacher, he can still wheel some moral ascendancy over  victim is below 18 years old
the victim.  no consented abduction if already above 18. If
already of age, no crime because there is consent.
Article 338 – Simple Seduction But if the woman is a minor, even there is consent,
there is still a crime.
Elements:  Example. If you eloped with someone who is below
1. Victim over 12 and under 18 (virginity not required) 18 years old – consented abduction. If the woman is
2. Good moral reputation, single, widow already of age – no crime.
3. Sexual intercourse
4. By means of deceit Article 342 – Forcible abduction
1. Victim is a woman, regardless of reputation
Difference between seduction and rape, although both involves 2. Against her will
sexual intercourse, is that in simple seduction it is not 3. Abduction with lewd designs
committed with intimidation but with deceit.
If victim is below 12, the crime is Forcible Abduction even if
The widow must be below 18 years old? there is no consent
Under book 1 of the new civil code, the marrying age of a
young woman at that time was 14. Before 1988, which was If there are many accused raping the abducted victim, there
when the new family code took effect, 14 for women and 16 for will only be one Forcible Abduction with Rape. PP v. Jose case
women. Hence, there could be a widow who is below 18. abandoned.

Article 340 – Corruption of Minors If victim is:

1. Punishes one who promotes the prostitution of a minor; a. Below 12 – forcible abduction
2. The same act is also punished in RA 7610 and RA 9208, b. 12 to 18 – consented abduction
aab RA 10364, and even RA 9775 c. 18 above – forcible abduction
3. The minor is used to satisfy the lust of another
Q on a different topic: where can we find qualified rape?
Corruption of minor can be a violation of: o Art 266
(1) Child abuse law, o If committed in full view, victim suffered HIV, victim is
(2) Human trafficking law or below 7 y/o, etc.
(3) Child pornography law o “rape committed in full view of the spouse” – what if
That’s why jurisprudence under the RPC is not that very rich it’s not in the full view? Only peeing? Can only hear
anymore. it? This is the first time the law makes use of full view.
It usually makes use of “in the presence of”. (she did
Article 341 – White Slave Trade not answer it)
The victims need not be minors; the offender must be engaged
in the prostitution industry. Complexing

Corruption v. White Slave Trade Circumstances Crime

Intent was to rape the woman Rape only
Corruption of Minors White Slave Trade and the taking was the means
Involves minors Minors may not be involved to carry out the Rape
(any age) If there was lewd design in Forcible Abduction with Rape
Victims of any sex Victims only females the taking, with no showing of
May not be for profit Generally for profit intent to rape, and the victim
Maybe single act Generally habitual was raped thereafter
Maybe with consent Against the will If there was no lewd design in Kidnapping with Rape
the taking but there was intent
Note: There are other special laws now involved. Normally, the to deprive her of her liberty
prosecution is not done under this law because the penalty is but the woman was raped
lesser or lower. thereafter

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Forcible Abduction and Rape
People v. Napud, Jr., GR no. 123058, Sept. 26, 2001
The forcible abduction with rape as absorbed by the rape. The
evidence that the victim was brought by the accused to a
banana plantation some 1-1/2 kilometers away from her house
for the purpose of raping her. Both men then successively had
carnal knowledge of her at said place. Where complainant was
forcibly taken away for the purpose of sexually assaulting her,
then the rape was committed may absorb the forcible
abduction. The trial court correctly held that the rape charged
and proved already absorbed the forcible abdution with rape
complained of in another case.
The purpose here was to rape, hence forcible abduction was
absorbed.
TITLE TWELVE – CRIMES AGAINST THE CIVIL
STATUS OF PERSONS
Chapter One – Simulation of Births and Usurpation of Civil
Status
Article 347 – Simulation of births, substitution of one child
for another and concealment and abandonment of
legitimate child
All four acts punished are in the title
Legitimacy is NOT 1. Simulation of births
required 2. Substitution of one child for
another
Legitimacy is 3. Concealment
required 4. Abandonment of legitimate child
Purpose: to cause the loss of civil status, or affect or obtain
the civil status of another. If this is not the purpose, but merely
to extort, the crime could be estafa.
Failure to support/neglect of a child or abandonment are now
mostly prosecuted under the RA 9262 (VAWC), not anymore
under Art. 347. As you can notice, the penalty in Art 347 is
lower.
Chapter Two – Illegal Marriages
Article 349 - Bigamy
Domingo v. CA; Mercado v. Tan
Can be committed through negligence. A judicial declaration is
required. Spouse in the second marriage need not be indicted
Montanez v. Cipirano
The elements of the crime of bigamy are:
a) Offender has been legally married;
b) Marriage has not been legally dissolved;
c) He contracts a second/subsequent marriage
d) Second/subsequent marriage has all the essential
elements for validity.
The felony is consummated on the celebration of the
subsequent marriage. It is essential in the prosecution for
bigamy that the alleged second marriage, having all the
essential requirements, would be valid were it not for the
subsistence of the first marriage.
Fiscal: The consummation of the crime is during the
celebration of the second marriage. In bigamy, there must be a
valid subsisting marriage and then another marriage was
contracted. The second marriage must have all the requisites
for the validity except for the fact that there was a prior existing
marriage
Bangayan v. Bangayan, July 3, 2013 (applying People v.
De Lara)
The second marriage was null and void and non-existent.
Under Art. 35 of the FC, a marriage solemnized without a
license shall be void from the beginning. Hence, there was no
bigamy.
Santiago v. People, July 15, 2015 (applying Tenebro v. CA)
The State’s penal laws on bigamy should not be rendered
nugatory by allowing individuals to deliberately ensure that
each marital contract be flawed in some manner, and to thus
escape the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the promise of
futurity and commitment.
Here, the parties to the 2nd marriage deliberately lied that they
cohabitated for more than 5 years and got married without a
license. This nullity cannot be a defense in the Bigamy.
What is the liability of the second spouse who knows of
the previous marriage of his/her spouse?
He/she will be liable as an accomplice
But without proof of such knowledge, he/she incurs no criminal
liability. He/she is also a victim
Fiscal: If the second marriage is voidable because of the lack
of the element of consent and not because it lacks other
requirements, such that the accused who contracted the
second marriage employed deceit, force, or duress against the
other, Supreme Court has been consistent that the accused
cannot escape liability from his own criminal act by raising as a
defense the fact that the second marriage was voidable.
Conversely, if the person accused of bigamy is the victim of the
deceit, force or duress, then he may successfully raise as a
defense the issue of vitiated consent in the bigamy. In other
words, the validity of the defense of a voidable second
marriage depends on who caused the voidability or who is the
guilty party in employing the duress, force, etc. in obtaining the
consent.
Example: A married B. This is a valid subsisting first marriage.
A then married C. This is the second marriage. In order for this
marriage to be bigamous, the second marriage must contain all
the requisites such as consent, age, man woman, marriage
license, solemnizing officer, marriage ceremony. However, if
the consent was vitiated, it would be voidable but if the other
requisites are lacking, it would not be voidable but null and void
ab ignition. In other words, the only instance that the marriage
would be voidable is that the consent is defective.
In the same example, if the consent of C was vitiated, B and C
can file a bigamy against A. If C was not aware of the first
marriage of A, C will not incur criminal liability even if she
consented to the second marriage. However, if C knew of the
first marriage and entered the second marriage despite the
knowledge, C will be liable as an accomplice.
In the same example, applying the principle abovementioned,
A then cannot use as a defense the fact that there was
voidable marriage. Because it was A who employed the duress
against C. He cannot raise as a defense that there is no
bigamy on the ground that the 2nd marriage is voidable. But, if it
was C who shotgunned A, A can now raise the defense of a
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voidable second marriage because of his vitiated consent. So,
it would depend on who caused the voidability.
Questions from the students
Muslim Marriages
In case of a Muslim, the subsequent marriages are valid
provided that the marriages were properly entered into in
accordance to Sharia law. This means if there was a 2 nd
marriage contracted under Sharia law, the only way by which
the 2nd marriage contracted can be valid is when the first
marriage was also contracted under the Sharia law. In other
words, both marriages should be solemnized under the Sharia
law.
Prejudicial Question
If the second marriage was eventually nullified in the civil case
because of the vitiated consent, the accused being the victim
of the duress, then that ruling in the civil case can be used as a
defense in the criminal case of bigamy. But that if he is only the
victim.
Bigamy in another country
If A and C contracted the second marriage in Dominican
Republic and A went back in Philippines. Can A be prosecuted
for bigamy in the Philippines?
Bigamy is not one of the crimes with extraterritorial application.
It will have the effect but we cannot file the case because of
territoriality principle.
Three Marriages with a twist
There were three marriages: Marriage between A and B; A and
C; and A and D. The second marriage was contracted when B
was alive. But at the time the third marriage was contracted, B
already died.
Fiscal: So, the second marriage is bigamous. The fact that B
subsequently died will not cure the defect of the second
marriage. It will remain to be bigamous. A contracted the third
marriage with C where first marriage was not existing anymore
because B died. Because of the fact the second marriage was
null void because it was contracted when B was alive, the third
marriage could be valid. No need for judicial declaration
because B died.
One of the modes of committing rape is fraudulent
machinations, what if gi minyoan og bigamous marriage
as a reason of which there was carnal knowledge. Is that
considered rape in so far as second marriage is
concerned? No answer by fiscal
TITLE THIRTEEN – CRIMES AGAINST HONOR
Chapter One – Libel
Article 353 - Libel
Elements:
Brillantes v. CA
a) Allegation of a discreditable act or condition concerning
another
b) Publication of the charge
c) Identity of the person defamed
d) Existence of malice
DEFINITION:
Art 353. A libel is a public, malicious imputation of a crime,
vice, defect, real or imaginary, or any act, omission, condition,
status, or circumstances tending to cause the dishonor,
discredit, or contempt of a natural or juridical person or to
blacken the memory of one who is dead.
Note: Libel can be committed even against a dead person.
ELEMENTS:
a) The allegation of a discreditable act or condition
concerning another;
The words must cause the humiliation of the victim. It must be
something that will debase his character, belittle him, or
subject him to ridicule.
Pader v. People
Supreme Court held that common cuss words “Putang ina mo”
is a common utterance that is employed to express anger or
displeasure rather than to slander. It is just an expletive that
punctuates one’s expression of profanity
Fiscal: Expletives do not constitute Libel. They are not
allegations of a discreditable act. “Putang Ina” is an example of
an expletive
b) Publication of the charge
Alonzo v. CA
Publication means making the defamatory matter known to
someone other than the person to whom it was written. If it was
sent straight to the person for whom it is written, there is no
publication.
Magno v. People
The wife of the person defamed is considered a third person
Fiscal: It does not necessarily mean that there is printing, etc.
The mere fact that another person knew, read or was told
about it would be enough element of publication even if there is
only one person and even if that third person happens to be
the wife of the accused.
Example: If Juana tells Maria, “Ikaw Maria, mao ni mao na”,
there is no libel because there is only one party. Or if Juana
texts Maria, “Ikaw Maria, wala ka ni bayad sa utang”, there will
no libel because the text is only for Maria. There is no
publication.
To constitute libel, there must be publication. It is not
necessary that there are many people who heard or read. It is
enough that there is one third party
c) Identity of the person defamed;
In libel, it is not necessary that the victim be named or that the
name will be stated.
d) Existence of malice
Publicity in Libel
In Fortich v. CA, the SC held that an inter-office memorandum
regarding an investigation of a person is confidential. Only
those involved in the investigation or directly supervising the
person’s work had knowledge. It was not sent to the other
employees or other superiors. Hence, there was no publicity.
Fortich, said that if it is just an inter-office memorandum
regarding an investigation, there is no libel because there is no
legal malice. Malice cannot be presumed neither is there
malice in fact.
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For lack of malice or malice in fact, there is no libel.
Truth as proof
Truth may only be received if:
1. The imputation is against a public official and the same
relates to his public functions;
2. There is imputation of a crime against a person
In the case of public officials, what is necessary is not legal
malice. There must be actual malice. In order to constitute
libel, there must be actual malice- the reason why said it.
Malice cannot be presumed where the victim is a public figure
especially if he is a public official and the comment is directed
at the performance of his functions. There is a different degree
of malice required of public figures/ celebrities. It does not only
apply to public officials but including public figures.
How many counts of Libel
a. If done on separate occasions – there are as many crimes
as there are many acts and persons affected.
The victim must be identifiable. It is not important that it is
named. What is important is that the person is identifiable.
b. If done on a single occasion:
 There are as many crimes as there are identifiable
victims (PP v. Gil, Oct. 31, 1968)
 If the victims are identifiable but not specific (“you,
Merrera lawyers”), there is only 1 Libel (PP v. Aquino,
99 Phil 713)
 If the victims belong to a class, but identifiable, only
those the class to whom it was directly addressed can
bring 1 suit. (PP v. Marquez, CA 51 OG 239)
When can we apply the higher standards of presumed
malice?
It is when it relates to a private affair.
Must the accused be the author?
No, the victim may be the author, as when love letters written
by a married woman was circulated by the accused. (US v
Eguia, 38 Phil 857)
Malice in law (presumed malice)
 If on its face the article is defamatory, even if facts are
true, malice is presumed. If it is clearly defamatory. We do
not have to prove malice. It is already presumed.
 If the article is not defamatory on its face or is ambiguous,
malice in fact (not malice in law) should be proved.
Surrounding circumstances have to be considered. If there
is ambiguity, the malice must be proven.
 Articles referring to the victim’s public life or conduct as
public officer or public figure does not require malice in
law. Malice in fact has to be proven in such cases.
No attempted Libel
 Libel is a formal crime. It has no attempted stage.
 Threatening to publish or offering to prevent publication for
compensation is punished under Art. 356 (similar to
blackmail)
 However, there is a hairline difference between Art. 356
and Robbery with intimidation (extortion)
Extortion is robbery because you intimidate somebody in
order to get power. Once you intimidate somebody, there
is already robbery so there is a hairline difference.
Rules of procedure in Libel
 Constitutionally, rules of procedure are formulated by the
SC.
 In Libel, the rules are in RPC, a substantive law enacted
by Congress.
 The court having jurisdiction in Libel is the RTC
(substantive jurisdiction)
 Venue for Libel is the place of residence (procedural
jurisdiction)
It can only be filed with the RTC because the law says so.
TITLE FOURTEEN – QUASI-OFFENSES
Reckless Imprudence
Consist in voluntary, but without malice, doing or falling to do
an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person
performing of failing to perform such act, taking into
consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances
regarding persons, time and place.
Single Imprudence
Consists in the lack of precaution displayed in those cases in
which the damage impending to be caused is not immediate
nor the danger manifest.
The penalty next higher in degree to those provided for in this
article shall be imposed upon the offender who fails to lend on
the spot to the injured parties such help as may be in this hand
to give.
Reckless imprudence carries with it a higher penalty compared
to simple imprudence.
There is this special aggravating circumstance. In case of a hit
and run, the crime will still be simple imprudence but there is
this special aggravating circumstance of failure to render
assistance which will increase the penalty by one degree. Not
just maximum, but one degree higher.
In intentional crimes, the act itself is punished. In negligence,
what is penalized is the mental attitude or condition. The name
is imprudence. What is punished is the imprudence rather than
the result.
Sole Chapter – Criminal Negligence
Article 365 – Quasi-Offenses
Reyes Trucking Corp v. People, cited in Sevilla v. People,
G.R. No, 194390, Aug 13, 2014
In intentional crimes, the act itself is punished; in negligence or
imprudence, what is penalized is the mental attitude or
condition behind the act, the dangerous recklessness, the lack
of care or foresight, the imprudencia punible. Much of the
confusion has arisen from the common use of such descriptive
phrase as “homicide through reckless imprudence” and the
like, when the strict technical sense is, “reckless imprudence
resulting in homicide”.
Is imprudence a crime in itself or just a mode of
committing a felony?
Art. 3 states that felonies are committed by dolo or culpa. In
this sense, culpa is a mode of committing a felony. However,
Art. 365 defines imprudence and provides a penalty therefor. It
is quasi-offense and criminal and civil liabilities can be
incurred. Therefore, Imprudence is a crime in itself because
there is a penalty provided.
Bond to keep the Peace
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A principal penalty yet there is no crime in RPC which is
punished by this
Bond for good behavior
A penalty specifically applicable to Grave and Light Threats
only (Art. 284)
Failure to post his bond will make the convict suffer destierro.
Public Censure
The penalty lower than Arresto Menor, penalty for Reckless
Imprudence resulting in Slight Physical Injuries (Reodica vs
CA, July 8, 1998)
Characteristics of crimes punished under special penal
laws:
1. They are (or used to be) usually mala prohibita
It is punished because there is a law punishing it. It is not
all the time that SPL are mala prohibitum. There are SPL
that are mala in se. Once it is mala in se, good faith is
admitted.
2. Rules and principles applicable to crimes punished under
the RPC are not usually applicable such as:
a. The usual application of principals, accomplices and
accessories have no bearing;
b. The usual stages of the crime as consummated,
frustrated and attempted as defined under RPC do
not apply. The SPL may have its own definition of
what is attempted or frustrated e.g. Attempted Child
Trafficking;
c. Art. 48 on ordinary complex crimes does not apply.
But the special penal law may itself penalize certain
special complex crimes.
d. JEMAA do not usually apply;
e. They usually do not adopt the penalties under the
RPC;
f. The rules on graduation of penalties do not usually
apply.
When the SPL uses the penalty of the RPC, the rules on
graduation of penalties shall apply. Thus, in the application of
ISL, it shall NOT stop at the minimum of the penalty imposable,
but rather it must still go down one degree lower.e
Graduating penalties under SPL
 Same rules under the RPC (RPC has suppletory
application)
 If the penalty of the SPL is one under the RPC, the
application of ISLaw must also follow that for RPC.
I. Comprehensive Firearms and Ammunition Regulation Act
(RA 10591)
II. Cybercrime Prevention Act (RA 10175)
III. Anti-Photo and Video Voyeurism Law (RA 9995)
IV. Special Protection of Children Against Abuse, Exploitation
and Discrimination Act (RA 7610)
V. Child Pornography (RA 9775)
VI. Anti-Trafficking in Persons Act (RA 9208, as amended by
RA 10364)
VII. Juvenile Justice and Welfare Act (RA 9344, as amended
by RA 10630)
VIII. Anti-Violence against Women and Children (RA 9262)
IX. Anti-Carnapping (RA 6539, as amended by RA 10883)
X. Anti-Fencing Law (PD 1612)
XI. Illegal Number Games (RA 9287)
XII. Bouncing Checks Law (BP 22)
XIII. Anti-Graft and Corrupt Practices Act (RA 3019)
XIV. Anti-Torture Law (RA 9745)
XV. Anti-Money Laundering Act (RA 9160)
XVI. Anti-Cattle Rustling Law (PD 533)
COMPREHENSIVE FIREARMS AND AMMUNITION
REGULATION ACT (RA 10591)
Approved: May 29, 2013
Policies:
a) Protection of the people against violence;
b) Recognition of the right to self-defense
Firearm refers to any handheld or portable weapon, whether a
small arm or light weapon, that expels or is designed to expel a
bullet, shot, slug, missile or any projectile, which is discharged
by means of expansive force of gases from burning gunpowder
or other form of combustion or any similar instrument or
implement.
For purposes of this Act, the barrel, frame or receiver is
considered a firearm.
Loose firearm refers to an unregistered firearm, an obliterated
or altered firearm, firearm which has been lost or stolen,
illegally manufactured firearms, registered firearms in the
possession of an individual other than the licensee and those
with revoked licenses in accordance with the rules and
regulations.
Firearm with expired registration or one in the possession of a
person with expired license is not considered in the definition.
If it is mechanical, it is not considered a firearm. It has to be a
chemical reaction. There must be a combustion so that the
weapon can be considered a firearm.
TN: A part of a firearm may be considered a firearm in itself.
Under the new law, when you have 3 or more firearms, the
penalty is RP. If only 2, and there is an extra barrel, it will be
counted as one firearm, penalty is RP which is not bailable.
Thus, even if you do not have a complete firearm, but you have
a barrel frame receiver, you are considered to be in violation
because that in itself, even if technically, it is not capable of
firing, or ejecting a projectile or bullet, that is already
considered a firearm.
The word unlicensed firearm is no longer used. It is not
accurate to use unlicensed firearm. It is technically, licensed
for the holder and registration for the firearm.
Firearm that is not registered, or even if registered but the
holder is not authorized or licensed to possessed such firearm,
the firearm will be considered loose.
Note: The definition of the firearm does not include expired
registration or the license.
The renewal for licenses for the possessor is once every 2
years. While for the firearm itself is once every 4 years.
Firearms covered are classified as:
1. Small arms refer to firearms intended to be or
primarily designed for individual use or that which is
generally considered to mean a weapon intended to
be fired from the hand or shoulder, which are not
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capable of fully automatic bursts of discharge, such
as Handgun, Rifle, Shotgun.
2. Light weapons are:
Class-A - self-loading pistols, rifles and carbines,
submachine guns, assault rifles and light machine
guns not exceeding caliber 7.62MM which have fully
automatic mode
Class-B - designed for use by two (2) or more
persons serving as a crew, or rifles and machine guns
exceeding caliber 7.62MM, mortars of a caliber of less
than 100MM.
This classification is internationally compliant. Under the
UNTOC (United Nations Convention against Transnational.
Organized Crime), small arms may consist in a handgun or a
rifle or fired with the shoulders, regardless of the calibre.
Light weapons cannot be anymore be owned by private
individuals.
For those who have already been licensed to own with Class A
weapons before the implementation of the law, may still be
auth to continue possessing class A weapons.
Civilians can only own small arms, regardless of the calibre.
Shotguns are the most common weapon for security guards. it
is for short-range use (not for battlefield).
Professionals considered to be in imminent danger due to the
nature of their profession, occupation or business:
a) Members of the Philippine Bar;
b) Certified Public Accountants;
c) Accredited Media Practitioners;
d) Cashiers, Bank Tellers;
e) Priests, Ministers, Rabbi, Imams;
f) Physicians and Nurses;
g) Engineers; and
h) Businessmen, who by the nature of their business or
undertaking, are exposed to high risk of being targets of
criminal elements.
(Where are politicians?)
These are individuals allowed to own firearms by the nature of
their hazardous profession. Drug dealers are businessmen as
well. Politicians are not protected.
Section 7. Carrying of Firearms Outside of Residence or Place
of Business. – A permit to carry firearms outside of residence
shall be issued by the Chief of the PNP or his/her duly
authorized representative to any qualified person whose life is
under actual threat or his/her life is in imminent danger due to
the nature of his/her profession, occupation or business.
It shall be the burden of the applicant to prove that his/her life
is under actual threat by submitting a threat assessment
certificate from the PNP.
Section 31. Absence of Permit to Carry Outside of
Residence. – The penalty of prision correccional and a fine of
Ten thousand pesos (P10,000.00) shall be imposed upon any
person who is licensed to own a firearm but who shall carry the
registered firearm outside his/her residence without any legal
authority therefor.
Anything that has to do with Loose Firearm is punished. Not
only the possession, sale, transport
manufacture, delivery, importation--anything that has to do with
loose firearm.
Unauthorized carrying of a firearm, whether valid or not, is also
punished. It cannot be taken out of the establishment or house
without another permit which is the PTC permit. Failure to
obtain a PTC will give rise to another crime. This is with a
lower penalty--prision correccional.
Example:
A person who is caught bringing with him a loose firearm
outside of house during election period may be liable of 3
crimes:
1. violation of Sec 7
2. illegal possession of loose firearm
3. violation of COMELEC gun ban
Penalties (Section 28)
Regardless of classification, possession of loose firearm is a
crime cognizable with the RTC.
(a) The penalty of prision mayor in its medium period
shall be imposed upon any person who shall
unlawfully acquire or possess a small arm;
(b) The penalty of reclusion temporal to reclusion
perpetua shall be imposed if three (3) or more small
arms or Class-A light weapons are unlawfully
acquired or possessed by any person;
(c) The penalty of prision mayor in its maximum period
shall be imposed upon any person who shall
unlawfully acquire or possess a Class-A light weapon;
xxx
The penalty is one (1) degree higher if:
(1) Loaded with ammunition or inserted with a loaded
magazine;
(2) Fitted or mounted with laser or any gadget used to
guide the shooter to hit the target such as thermal
weapon sight (TWS) and the like;
(3) Fitted or mounted with sniper scopes, firearm muffler
or firearm silencer;
(4) Accompanied with an extra barrel; and
(5) Converted to be capable of firing full automatic bursts.
Even if the firearm is just a homemade pieces of tubes wielded
together to make a firearm, once it is loaded, penalty will be
higher. The penalty will effectively increase by 1 degree.
When there are 3 or more firearms, penalty is RP. Even if the
3rd is not exactly a firearm, as when the 3rd one is just a
barrel, a frame, or a receiver, it is counted as 1 firearm, and
thus the penalty is RP.
General Rule: The jurisdiction for all firearms cases is under
RTC.
Exception: The only ones in MTC:
1. bullet, possession of ammunition (laglag bala)
2. PTC
Use of Loose Firearm in the Commission of the Offense
(Section 29)
The use of a loose firearm, when inherent in the commission of
a crime punishable under the Revised Penal Code or other
special laws, shall be considered as an aggravating
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circumstance: Provided, That if the crime committed with the
use of a loose firearm is penalized by the law with a maximum
penalty which is lower than that prescribed in the preceding
section for illegal possession of firearm, the penalty for illegal
possession of firearm shall be imposed in lieu of the penalty for
the crime charged: Provided, further, That if the crime
committed with the use of a loose firearm is penalized by the
law with a maximum penalty which is equal to that imposed
under the preceding section for illegal possession of firearms,
the penalty of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime punishable
under the Revised Penal Code or other special laws of which
he/she is found guilty.
If the violation of this Act is in furtherance of, or incident to, or
in connection with the crime of rebellion of insurrection, or
attempted coup d’ etat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, or
attempted coup d’ etat.
If the crime is committed by the person without using the loose
firearm, the violation of this Act shall be considered as a
distinct and separate offense.
Aggravating
When inherent in the commission of the crime; no separate
info for the possession of loose firearm
In lieu of the other crime
If the penalty for the other crime is lower, the penalty for illegal
possession of firearm shall be imposed in lieu for the penalty of
the other crime charged.
In addition to the penalty for the crime
If the penalty for the other crime is the same, the penalty of
Prision Mayor in its minimum period shall be imposed in
addition to the penalty of the crime.
TN: The Firearms used must have been seized. Without it, Sec
29 cannot apply.
When confronted with 2 crimes involving a loose firearm,
there are 3 possibilities - illegal possession is either:
1) Absorbed - in Rebellion and attempted Coup d'état
(applying the doctrine of Absorption, and the political
offense doctrine--applies to Coup d'état itself)
2) Aggravating - if inherent in the commission of the other
crime, whether punished in the RPC or special penal
laws,
e.g. COMELEC gun ban and loose firearm, murder,
homicide, parricide, grave threat, alarms and scandals,
illegal discharge of firearms
3) Separate - if not inherent in the commission of the
other crime, not rebellion nor attempted Coup d'etat
Example:
Where do we file an alarms and scandals case if the crime
was committed with the use of a loose firearm?
Crime committed: Alarms and Scandals (no separate case for
Loose Firearms since it is inherent)
Aggravating circumstance: The use of the loose firearm.
Higher penalty: Loose firearm (Loose Firearm is Prision Mayor;
Alarms ad Scandals is Arresto Menor)
According to Sec 29, even if the crime is only for alarms and
scandals, but because it is in relation to a loose firearm, the
penalty will be for the loose firearm. There is some sort of an
absorption of the penalty but not of the crime.
Although Alarms an Scandals is cognizable under the MTC,
but since MTC will not be able to impose penalty beyond its
jurisdiction, the crime must be filed in the RTC denominated as
Alarms and scandals in relation to the loose firearms law. This
is to prove that the reason why the case is within the
jurisdiction of the RTC is not because of the Alarms and
scandals but because of the loose firearms.
If same penalty, such as for Frustrated Homicide with the
use of loose firearm?
Penalty for Frustrated Homicide is Prision Mayor. The same
penalty for the Use of a Loose Firearm.
Thus the penalty would be:
a) Prision Mayor medium (for the FH) plus Prision Mayor
minimum (for the Firearm).
What is the penalty if the homicide is committed with a
loose firearm?
If the Homicide is committed with a loose firearm and the
firearm was seized, the penalty would:
a) Reclusion Temporal, in its maximum (only aggravating if
PM is the penalty for the firearm)
b) Reclusion Temporal, plus Prision Mayor minimum if the
small arm was loaded with ammos, etc (increased to RT
med, same as Homicide (which penalty is supposed to
be 1 degree higher)
Search warrant was issued for illegal gambling. During the
search, authorities found illegal gambling materials as
well as loose firearms.
Firearms is not inherent in the commission of the illegal
gambling. Thus, there is no absorption, no aggravating BUT
separate offenses where the firearms is not inherent. Thus the
crime would be:
1. crime for illegal gambling
2. violation of the Firearms law
Section 35. Use of an Imitation Firearm. – An imitation firearm
used in the commission of a crime shall be considered a real
firearm as defined in this Act and the person who committed
the crime shall be punished in accordance with this
Act: Provided, That injuries caused on the occasion of the
conduct of competitions, sports, games, or any recreation
activities involving imitation firearms shall not be punishable
under this Act.
Even an TOY GUN, lighters that look like guns. It must have
the appearance of real guns and intention is to intimidate
somebody.
Example:
Robbery with fake firearm; usurpation of public functions with
fake firearm
Taken as a loose firearm. Crime is Robbery in relation to RA
10591.
If Grave Threats with toy gun, crime is grave treats, penalty is
for the loose firearm.
Quiz:
1. Juan and Pedro are rebels. In the course of the rebellion
Juan forced political candidate Dugoy to give money, and
when the latter refused, Juan killed Dugoy’s wife with the use
of a loose firearm. What crime/s was/were committed by Juan?
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Only ONE crime - REBELLION by reason of the Political
Offense Doctrine.
If no evidence for rebellion, robbery with homicide, the firearm
will be aggravating because it is inherent.
2. When Pedro was driving to school as a law student, he was
apprehended for a traffic violation. He attacked the law
enforcer with a cal. 38 loose firearm, and killed him in the heat
of anger. What should be his penalty?
Crime is complex crime of direct assault with homicide.
Firearm is aggravating.
New law has a higher penalty than the old law. Since this is
more disadvantageous to the accused, it cannot be given
retroactive effect. Therefore , all the jurisprudence in the old
law will have no bearing today.
CYBERCRIME PREVENTION ACT OF 2012
(RA 10175)
Cybercrimes
One of the world's worst computer-related disasters involve a
virus that was “Made in the Philippines” The “I Love You”
virus. This was created by Onel de Guzman and Reonel
Ramones in May 2000. It is estimated that the damage caused
by this virus exceeded $15Billion including the amount spent to
remove the worm.
Computer crimes, or Cybercrimes are crimes that involve a
computer and/or a network.
1. The computer device or network as target;
2. The computer device or network as a tool.
Generally, cybercrime is when the computer becomes a tool in
the crime itself or becomes a victim.
Victim - if release some worms or viruses that can shutdown
the computer.
If you use the computer in order to defame somebody or sell
fake products, it becomes a tool.
Included in the term computers are SMARTPHONES.
Cybercrime offenses (Sec 4)
3 general categories:
(1) Offenses against the confidentiality, integrity and
availability of computer data and systems;
(2) Computer-related offenses; and
(3) content-related offenses (usually also punished in
other laws. e.g. cyber libel, cybersex and cyber child
pornography).
Offenses against the confidentiality, integrity and
availability of computer data and systems are cybercrime.
a. Illegal Access – access to the whole or any part of a
computer system without right.
b. Illegal Interception – intercept by technical means
without right of any non-public transmission of computer
data to, from, or within a computer system including
electromagnetic emissions from a computer system
carrying such computer data.
c. Data Interference – intentionally, or recklessly alter,
damage, delete or deteriorate computer data, electronic
document, or electronic data message, without right,
including the introduction or transmission of viruses. This
is considered as cyber vandalism.
d. System Interference – intentionally alter or recklessly
hinder or interfere with the functioning of a computer or
computer network by inputting, transmitting, damaging,
deleting, deteriorating, altering or suppressing computer
data or program, electronic document, or electronic data
message, without right or authority, including the
introduction or transmission of viruses.
e. Misuse of Devices – Misuse of devise is committed by
any person, who shall use, produce, sell, procure, import,
distribute, or otherwise make available, or possession
with intent to use, without right any of the following: (1) a
device, including a computer program, designed or
adapted primarily for the purpose of committing any
cybercrime; or (2) a computer password, access code, or
similar data by which the whole or any part of a computer
system is capable of being accessed with intent that it be
used for the purpose of committing any cybercrime;
f. Cyber-squatting – Cyber-squatting is committed by any
person, who shall acquire a domain name over the
internet in bad faith to profit, mislead, destroy reputation,
and deprive others from registering the same, if such a
domain name is:
(a) similar, identical, or confusingly similar to an
existing trademark registered with the appropriate
government agency at the time of the domain name
registration;
(b) identical or in any way similar with the name of a
person other than the registrant, in case of a
personal name; and
(c) acquired without right or with intellectual property
interests in it.
Computer-related offense - The following are computer-
related offenses:
a. Computer-related forgery - Computer-related forgery
is committed by any person, who shall
(a) the input, alteration, or deletion of any computer
data without right resulting in inauthentic data with
the intent that it be considered or acted upon for
legal purposes as if it were authentic, regardless
whether or not the data is directly readable and
intelligible; or
(b) the act of knowingly using computer data which is
the product of computer-related forgery for the
purpose of perpetuating a fraudulent or dishonest
design.
b. Computer-related Fraud - the unauthorized input, alter,
or delete computer data or program or interfere in the
functioning of a computer system with fraudulent intent
causing damage thereby.
c. Computer-related identity theft - the intentional
acquisition, use, misuse, transfer, possession, alteration
or deletion of identifying information belonging to
another, whether natural or juridical, without right.
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Content-related offenses - there are other laws which already
punished the act
a. Cybersex – the wilful engagement, maintenance,
control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity,
with the aid of a computer system, for favor or
consideration.
b. Child pornography - acts defined and punishable
under RA No. 9775 committed through a computer
system. The penalty is 1 degree higher than that
provided for in RA 9775.
c. declared unconstitutional
d. Libel - the unlawful or prohibited act of libel as defined
in Article 355 of RPC committed through a computer
system or any other similar means which may be
devised in the future
Section 6. All crimes defined and penalized by the Revised
Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications
technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal
Code, as amended, and special laws, as the case may be.
Section 7. Liability under Other Laws. — A prosecution under
this Act shall be without prejudice to any liability for violation of
any provision of the Revised Penal Code, as amended, or
special laws.
When a crime is punished under another law, the victim has
several options.
Example:
Libel punished under RPC and Cybercrime, he can file under
either law. If he files under the Cybercrime law, the penalty is 1
degree higher of the penalty provided in the RPC.
It is 1 degree higher because of the reach of the cyberspace,
and the presumed greater perversity.
Can we file under both?
GR: Yes, under Sec 7.
XPN: Disini Case in cases of:
1. Libel and
2. Child pornography.
One cannot file under both law.
There is double jeopardy in Libel because libel is NOT defined
under the Cybercrime law. It adopts the same elements under
the RPC except that there is the additional element of the use
of the cyberspace.
Disini vs. Secretary of Justice, G.R. No. 203335, February
11, 2014
Despite of Section 7, the offender cannot be prosecuted for
cyber libel or cyber child pornography under RA No. 10175 in
addition to libel under RPC or child pornography under RA No.
9775 since this will offend the constitutional rule on double
jeopardy.
With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases.
If the published material on print, said to be libelous, is again
posted online or vice versa, that identical material cannot be
the subject of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the
same offense. Section 4(c)(4) merely establishes the computer
system as another means of publication.
Charging the offender under both laws would be a blatant
violation of the proscription against double jeopardy.
The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously
discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means."
Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
Gray areas:
Writer of a Inquirer, published a libellous article for inquirer.
Without you knowing it, your article was digitized and becomes
available in the internet, but you did not intent to write over the
internet but only for the newspaper. Can you be sued under
both? gray area
Opinions of CJ Sereno in Disini case
If the effect of the use of computer is to make the penalty 1
degree higher, then in it is similar to an aggravating or
qualifying circumstance. There can only be an appreciation of
the circumstance if it is specifically sought in order to commit a
crime. It must be deliberate so that it becomes aggravating or
qualifying.
Provisions declared unconstitutional
1. Section 4 (c)(3) which pertains to unsolicited
commercial communications
2. Section 12 which pertains to real-time collection of
traffic data
3. Section 19 which pertains to restricting or blocking
access to computer data
Art. 4 (c)(3) on SPAM
Transmission of unsolicited commercial communications is
also known as "spam." Unsolicited advertisements are
legitimate forms of expression. It was held that to prohibit the
transmission of unsolicited ads would deny a person the right
to read his emails, even unsolicited commercial ads addressed
to him. The State cannot rob him of this right without violating
the constitutionally guaranteed freedom of expression.
Commercial speech is a separate category of speech which is
not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.
Section 12 on real-time collection of traffic data.
It threatens the right of individuals to privacy. Although it limits
the collection of traffic data to those "associated with specified
communications", this is no limitation at all since it is the LEAs
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that would specify the target communications. The power is
virtually limitless, enabling law enforcement authorities to
engage in “fishing expedition,” choosing whatever specified
communication they want.
Law enforcers will go to the traffic (like hacking), in order to get
evidence. The LE can do it by seeking a court order similar to a
search warrant. This is akin to a search and seizure.
Section 19 on the automatic take-down clause or
restricting or blocking access to computer data by DOJ
This is violative of the Constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.
For an executive officer to seize content alleged to be
unprotected without any judicial warrant, it is not enough for
him to be of the opinion that such content violates some law,
for to do so would make him judge, jury, and executioner all
rolled into one.
Also known as the Automatic Takedown clause.
Example:
Cybersex website or a phishing website. Under the original
law, the SOJ can automatically shut it down.
This needs a court order in order to take it down or require the
provider to shut it down as what happens in other countries. If
the provider shuts it down than the public official, the former
need not require a court order.
Pp vs Andre Martin
Search warrant is only required for public officials.
Thus, Globe can take down immediately any illegal website. In
fact, ISPs have the duty to report within 48 hours if there is an
offending website.
Sec. 15. Search, Seizure and Examination of Computer Data.
— Law enforcers shall conduct interception and:
(a) To secure a computer system or a computer data
storage medium;
(b) To make and retain a copy of those computer data
secured;
(c) To maintain the integrity of the relevant stored computer
data;
(d) To conduct forensic analysis or examination of the
computer data storage medium; and
(e) To render inaccessible or remove those computer data
in the accessed computer or computer and
communications network.
Always with a court order to make copies. Before application of
the search warrant, the authorities need a prior clearance from
the office of the cybercrime in order to retain a copy.
California vs Riley (US case)
There is a drug lord with many networks. Search warrant was
issued authorizing the search and seizure of articles and
equipment used in the cybersex operation. It was used to
confiscate laptops, cell phones, computer.
The search is only to search the premises and seize the
articles. It cannot however extend the search on the content of
the cell phone, or laptop. It needs another search warrant.
THE ANTI-PHOTO AND VIDEO VOYEURISM LAW
(RA 9995)
"Photo or video voyeurism" means the act of taking photo or
video coverage of a person or group of persons performing
sexual act or any similar activity or of capturing an image of the
private area of a person or persons without the latter's consent,
under circumstances in which such person/s has/have a
reasonable expectation of privacy.
The act of selling, copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video coverage or
recordings of such sexual act or similar activity through
VCD/DVD, internet, cellular phones and similar means or
device without the written consent of the person/s involved,
notwithstanding that consent to record or take photo or video
coverage of same was given by such person.
ACTS COVERED
1. The act of taking photo or video coverage of a person or
group of persons performing sexual act or any similar
activity or of capturing an image of the private area of a
person or persons without the latter's consent, under
circumstances in which such person/s has/have a
reasonable expectation of privacy.
No particular form of consent is required.
2. The act of selling, copying, reproducing, broadcasting,
sharing, showing or exhibiting the photo or video coverage
or recordings of such sexual act or similar activity through
VCD/DVD, internet, cellular phones and similar means or
device without the written consent of the person/s involved,
notwithstanding that consent to record or take photo or
video coverage of same was given by such person.
Written consent is required. Even if there was already a prior
consent in the taking, another consent is required for the
sharing, posting, etc.
Section 4. Prohibited Acts. - It is hereby prohibited and
declared unlawful for any person:
(a) To take photo or video coverage of a person or group of
persons performing sexual act or any similar activity or to
capture an image of the private area of a person/s such as
the naked or undergarment clad genitals, public area,
buttocks or female breast without the consent of the
person/s involved and under circumstances in which the
person/s has/have a reasonable expectation of privacy;
(b) To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of sexual act
or any similar activity with or without consideration;
(c) To sell or distribute, or cause to be sold or distributed,
such photo or video or recording of sexual act, whether it
be the original copy or reproduction thereof; or
(d) To publish or broadcast, or cause to be published or
broadcast, whether in print or broadcast media, or show or
exhibit the photo or video coverage or recordings of such
sexual act or any similar activity through VCD/DVD,
internet, cellular phones and other similar means or
device.
The prohibition under paragraphs (b), (c) and (d) shall apply
notwithstanding that consent to record or take photo or video
coverage of the same was given by such person/s. Any person
who violates this provision shall be liable for photo or video
voyeurism as defined herein.
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Q. Juan and his 16 year old girlfriend agreed to have their
sexual activity captured on video. Juan’s wife got hold of
the video, and in her anger, she posted the video on
youtube. What crimes are committed?
A. The crimes committed are:
1. Violation of RA 9995;
2. Violation of the Cybercrime Law
3. Violation of Child Pornography Law
4. Child Abuse Law
Anger can only be a passion and obfuscation which is only
mitigating. But since it is punished under the SPL, it will have
no bearing.
Section 6. Exemption. - Nothing contained in this Act,
however, shall render it unlawful or punishable for any peace
officer, who is authorized by a written order of the court, to use
the record or any copy thereof as evidence in any civil, criminal
investigation or trial of the crime of photo or video voyeurism:
Provided, That such written order shall only be issued or
granted upon written application and the examination under
oath or affirmation of the applicant and the witnesses he/she
may produce, and upon showing that there are reasonable
grounds to believe that photo or video voyeurism has been
committed or is about to be committed, and that the evidence
to be obtained is essential to the conviction of any person for,
or to the solution or prevention of such, crime.
Law enforcers may use what they have already been taken but
it can only be used in the court. It cannot be used to take
another picture such that they can only utilize what is already
existing.
SPECIAL PROTECTION OF CHILDREN AGAINST
ABUSE, EXPLOITATION AND DISCRIMINATION ACT
(RA 7610)
Took effect on June 17, 1992
"Children" refers to person below eighteen (18) years of age or
those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition;
A person whether a man or a woman, 20 yrs old, but because
suffering from a mental condition that she cannot take care of
himself and is subject to abuse, there will still be child abuse.
The definition of children under RA 7610 differs from the
definition under RA 9775. There are different categories of
children under RA9344.
"Child abuse" refers to the maltreatment, whether habitual or
not, of the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty,
sexual abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a
human being;
(3) Unreasonable deprivation of his basic needs for
survival, such as food and shelter; or
(4) Failure to immediately give medical treatment to an
injured child resulting in serious impairment of his
growth and development or in his permanent incapacity
or death.
Neglect
1. Failure to give support of the child for her basic needs
2. Letting the child beg on the streets is also neglect.
Example:
Badjao's begging on the streets with children in their arms,
they do not cry because they are drugged.
Physical Abuse
George Bongalon vs. People, GR 169533, March 20, 2013
Accused saw the victim and his companions hurting his minor
daughters. Angered, accused struck minor-victim at the back
with his hand and slapped his face. Since the accused
committed the act at the spur of the moment, they are
perpetrated without intent to debase his "intrinsic worth and
dignity" as a human being, or to humiliate or embarrass him.
Without such intent, the crime committed is not child abuse
under RA 7610 but merely slight physical injuries
Not every instance of the laying of hands on a child constitutes
the crime of child abuse under Section 10 (a) of RA 7610.
Only when the laying of hands is shown beyond reasonable
doubt to be intended by the accused to debase, degrade or
demean the intrinsic worth and dignity of the child as a human
being should it be punished as child abuse. Otherwise, it is
under the RPC.
Example:
An altercation between a minor and an adult does not
necessarily mean that there is child. abuse. The laying of
hands should be for that purpose of belittling or demeaning the
child to constitute child abuse.
Knee jerk reactions are not child abuse.
Claudine Barreto case:
A verbal fight with Tulfo led to the Claudine's husband Raymart
mauling Tulfo in the presence of her children. She wanted to
file a case against Tulfo for child abuse for causing trauma to
her children.
Not all acts which affect children are considered child abuse.
Only those that are specifically intended and directed towards
children will constitute child abuse.
Section 5. Child Prostitution and Other Sexual Abuse. -
Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce
child
xxx
(b) Those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution
or subject to other sexual abuse; Provided, That when
the victims is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815,
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as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is
under twelve (12) years of age shall be reclusion
temporal in its medium period; and
(c) Those who derive profit or advantage therefrom,
whether as manager or owner of the establishment
where the prostitution takes place, or of the sauna,
disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in
prostitution in addition to the activity for which the
license has been issued to said establishment.
Sexual Abuse:
Pp vs. Larin, GR 128777 Oct. 7, 1998
It must be noted that the law covers not only a situation in
which a child is abused for profit, but also one in which a child,
through coercion or intimidation engages in any lascivious
Conduct.
Hence, the foregoing provision penalizes not only child
prostitution, the essence of which is profit, but also other forms
of sexual abuse of children.
People vs Baraga, June 4, 2014
If the victim is under 12, it is always statutory rape when there
is sexual intercourse. Prosecution should be done under the
RPC. Not in the child abuse law. There is already rape for
victims below 12 and there is sexual intercourse, it is always
presumed against the will. Penalty is RP.
If there no sexual intercourse, the crime is Acts of
Lasciviousness under the RPC, but the penalty will be taken
from the Child Abuse Law, because the penalty of the latter is
higher at RT.
If the child is 12 years old and above, in order to constitute
rape or Acts of Lasc under 336, the victim must resist. If the
victim does not resist but it is committed through the 4 modes
of committing rape as provided in the RPC or by influence,
deception, sweet talking, it will not be rape nor Acts of Lasc
under 336, although it can still be Acts of Lasc under 339.
However, it may still be child abuse even if over 12 and
consented or does not put up a resistance.
If not one of the modes of committing rape under the RPC is
present, one cannot sue under the RPC but only under the
Child Abuse law. In order to constitute child abuse, the victim
must be subjected to other child abuse or under the
persuasion, inducement, enticement, coercion or influence.
Without these 5 modes of committing child abuse, there may
not be any crime under the child abuse law.
Summary:
Under 12 - prosecute as Statutory Rape under RPC;
penalty is RP
prosecute as Acts of Lasc under RPC, but
penalty provided under Sec. 5(b), RA 7610
which Is RT med
Over 12 - either Rape under RPC (If any of the 4
circumstances occur)
under 18 - or RA 7610 if the victim is “Subjected to other
sexual abuse” or under the persuasion,
inducement, enticement, coercion or influence
(PIECI) where penalty is RT medium to RP
Over 18 - Rape under RPC
Acts of Lasciviousness under RPC (prision
correccional)
XPN: When unable to take care of himself.
Child Prostitution:
Under RA 7610, child prostitutes maybe of any gender.
Section 6. Attempt To Commit Child Prostitution. – There is
an attempt to commit child prostitution under Section 5,
paragraph (a) hereof when any person who, not being a
relative of a child, is found alone with the said child inside the
room or cubicle of a house, an inn, hotel, motel, pension
house, apartelle or other similar establishments, vessel,
vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to
believe that the child is about to be exploited in prostitution and
other sexual abuse.
There is also an attempt to commit child prostitution, under
paragraph (b) of Section 5 hereof when any person is receiving
services from a child in a sauna parlor or bath, massage clinic,
health club and other similar establishments. A penalty lower
by two (2) degrees than that prescribed for the consummated
felony under Section 5 hereof shall be imposed upon the
principals of the attempt to commit the crime of child
prostitution under this Act, or, in the proper case, under the
Revised Penal Code
Attempt to commit child prostitution (2 ways):
a) when any person who, not being a relative of a child, is
found alone with the said child inside the room or cubicle of
a house, an inn, hotel, motel, pension house, apartelle or
other similar establishments, vessel, vehicle or any other
hidden or secluded area under circumstances which would
lead a reasonable person to believe that the child is about
to be exploited in prostitution and other sexual abuse.
b) when any person is receiving services from a child in a
sauna parlor or bath, massage clinic, health club and other
similar establishments.
When found in any enclosed place, there is child prostitution.
OTHER ACTS OF CHILD ABUSE
Section 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the
Child's Development. –
(a) Any person who shall commit any other acts of child
abuse, cruelty or exploitation or to be responsible for
other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.
(b) Any person who shall keep or have in his company a
minor, twelve (12) years or under or who in ten (10)
years or more his junior in any public or private place,
hotel, motel, beer joint, discotheque, cabaret, pension
house, sauna or massage parlor, beach and/or other
tourist resort or similar places shall suffer the penalty of
prision mayor in its maximum period and a fine of not
less than Fifty thousand pesos (P50,000): Provided,
That this provision shall not apply to any person who is
related within the fourth degree of consanguinity or
affinity or any bond recognized by law, local custom and
tradition or acts in the performance of a social, moral or
legal duty.
(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
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paragraph shall suffer the penalty of prision mayor in its
medium period and a fine of not less than Forty
thousand pesos (P40,000); Provided, however, That
should the perpetrator be an ascendant, stepparent or
guardian of the minor, the penalty to be imposed shall
be prision mayor in its maximum period, a fine of not
less than Fifty thousand pesos (P50,000), and the loss
of parental authority over the minor.
(d) Any person, owner, manager or one entrusted with the
operation of any public or private place of
accommodation, whether for occupancy, food, drink or
otherwise, including residential places, who allows any
person to take along with him to such place or places
any minor herein described shall be imposed a penalty
of prision mayor in its medium period and a fine of not
less than Fifty thousand pesos (P50,000), and the loss
of the license to operate such a place or establishment.
(e) Any person who shall use, coerce, force or intimidate a
street child or any other child to;
(1) Beg or use begging as a means of living;
(2) Act as conduit or middlemen in drug trafficking or
pushing; or
(3) Conduct any illegal activities, shall suffer the
penalty of prision correccional in its medium period
to reclusion perpetua.
Company of minor under Sec. 10 (b)
Similar but not child prostitution.
The place need not be secluded or in an enclosed room. This
may be in a public area such as a beer joint, or tourist resort.
Pp v Araneta, June 27, 2008; Sanchez v PP, June 5, 2009
The provision under Sec 10 punishes 4 distinct acts, i.e., (a)
child abuse, (b) Child cruelty, (c) child exploitation and (d)
being responsible for conditions prejudicial to the child's
development. The IRR distinctly and separately defined child
abuse, cruelty and exploitation just to show that these 3 acts
are different from one another and from the act prejudicial to
the child’s development.
An accused can be prosecuted under Sec. 10(a), RA 7610 if
he commits any of the 4 acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child
exploitation have resulted in the prejudice of the child because
an act prejudicial to the development of the child is different
from the former acts.
Example on cruelty:
A duct tape was placed in the mouth of a newly-born baby.
In this case, there is no physical injury, no psychological
trauma (you will never know because you cannot interview the
baby) but there is child abuse because of cruelty. No need of
injury or psychological trauma in order to constitute child
abuse.
Example on child exploitation:
Daughter of a police is being courted by a drug addict. The guy
always extorts from the girl which the latter happily comply. In
order to stop them, the father transferred her daughter to the
province. Despite this, the guy continues to extort her, with the
girl sending the money through a money padala.
This is child abuse because there is child exploitation. Even if
there is no injury--psychological or physical.
Or it may be any other acts provided that it causes conditions
which are prejudicial to the child development.
Attempted child trafficking (Sec 8)
Section 8. Attempt to Commit Child Trafficking. – There is
an attempt to commit child trafficking under Section 7 of this
Act:
(a) When a child travels alone to a foreign country without
valid reason therefor and without clearance issued by
the Department of Social Welfare and Development or
written permit or justification from the child's parents or
legal guardian;
(b) When a person, agency, establishment or child-caring
institution recruits women or couples to bear children for
the purpose of child trafficking; or
(c) When a doctor, hospital or clinic official or employee,
nurse, midwife, local civil registrar or any other person
simulates birth for the purpose of child trafficking; or
(d) When a person engages in the act of finding children
among low-income families, hospitals, clinics, nurseries,
day-care centers, or other child-during institutions who
can be offered for the purpose of child trafficking.
When a child travels without a permit and the minor travels
alone, it will be attempted child trafficking in so far as the adult
who facilitated the travel of the minor.
As to surrogacy, hiring a surrogate mother is not per se child
abuse. It may only be attempted child trafficking if the purpose
of hiring couples to bear a child is for child trafficking.
Section 12. Employment of Children. – Children below
fifteen (15) years of age may be employed except:
(1) When a child works directly under the sole responsibility
of his parents or legal guardian and where only
members of the employer's family are employed:
Provided, however, That his employment neither
endangers his life, safety and health and morals, nor
impairs his normal development: Provided, further, That
the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary
education; or
(2) When a child's employment or participation in public &
entertainment or information through cinema, theater,
radio or television is essential: Provided, The
employment contract concluded by the child's parent or
guardian, with the express agreement of the child
concerned, if possible, and the approval of the
Department of Labor and Employment: Provided, That
the following requirements in all instances are strictly
complied with:
(a) The employer shall ensure the protection, health,
safety and morals of the child;
(b) the employer shall institute measures to prevent
the child's exploitation or discrimination taking
into account the system and level of
remuneration, and the duration and arrangement
of working time; and;
(c) The employer shall formulate and implement,
subject to the approval and supervision of
competent authorities, a continuing program for
training and skill acquisition of the child.
In the above exceptional cases where any such child may be
employed, the employer shall first secure, before engaging
such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the above
requirement.
The Department of Labor Employment shall promulgate rules
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and regulations necessary for the effective implementation of
this Section.
Section 22. Children as Zones of Peace. – Children are
hereby declared as Zones of Peace. It shall be the
responsibility of the State and all other sectors concerned to
resolve armed conflicts in order to promote the goal of children
as zones of peace. To attain this objective, the following
policies shall be observed.
(a) Children shall not be the object of attack and shall be
entitled to special respect. They shall be protected from
any form of threat, assault, torture or other cruel,
inhumane or degrading treatment;
(b) Children shall not be recruited to become members of
the Armed Forces of the Philippines of its civilian units
or other armed groups, nor be allowed to take part in the
fighting, or used as guides, couriers, or spies;
(c) Delivery of basic social services such as education,
primary health and emergency relief services shall be
kept unhampered;
(d) The safety and protection of those who provide services
including those involved in fact-finding missions from
both government and non-government institutions shall
be ensured. They shall not be subjected to undue
harassment in the performance of their work;
(e) Public infrastructure such as schools, hospitals and rural
health units shall not be utilized for military purposes
such as command posts, barracks, detachments, and
supply depots; and
(f) All appropriate steps shall be taken to facilitate the
reunion of families temporarily separated due to armed
conflict.
Schools are not supposed to be used as barracks.
Q: Juanita, a 16-year old, got pregnant by Juanito, her
boardmate. Unknown to Juanita’s parents who live in
Mindanao, Juanito had become her lover for over 5
months already. According to Juanita, she accepted
Juanito’s love because he told her that he would commit
suicide if she rejects him. Juanita had stopped going to
school from the time the relationship started because
Juanito prevented him from doing so. Juanito demanded
that she gives all the money sent by her parents to him,
thereby restricting her from going out. What crimes under
RA 7610 are committed by Juanito?
CHILD PORNOGRAPHY (RA 9775)
Approved on November 17, 2009
"Child" refers to a person below eighteen (18) years of age or
over, but is unable to fully take care of himself/herself from
abuse, neglect, cruelty, exploitation or discrimination because
of a physical or mental disability or condition.
For the purpose of this Act, a child shall also refer to:
(1) a person regardless of age who is presented, depicted
or portrayed as a child as defined herein; and
(2) computer-generated, digitally or manually crafted
images or graphics of a person who is represented or
who is made to appear to be a child as defined herein.
"Child pornography" refers to any representation, whether
visual, audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other means, of
child engaged or involved in real or simulated explicit sexual
activities.
"Grooming" refers to the act of preparing a child or someone
who the offender believes to be a child for sexual activity or
sexual relationship by communicating any form of child
pornography. It includes online enticement or enticement
through any other means.
"Luring" refers to the act of communicating, by means of a
computer system, with a child or someone who the offender
believes to be a child for the purpose of facilitating the
commission of sexual activity or production of any form of child
pornography.
"Pandering" refers to the act of offering, advertising,
promoting, representing or distributing through any means any
material or purported material that is intended to cause another
to believe that the material or purported material contains any
form of child pornography, regardless of the actual content of
the material or purported material.
Child may be:
a. a person below 18 years old
b. 18 year of age or over, who is unable to take care of
himself
c. a person depicted as a child
d. computer-generated, digitally or manually crafted images
or graphics of a person who is represented or who is
made to appear to be a child.
Here, the child may not be a real child. A cartoon character
depicted as a child can be considered as a child.
In one real case, an NGO wanted to entrap certain person who
were involved in child pornography. They created an account
depicted as child but it was not a real girl. The entrapment was
with the use of an account depicted as a child. This can be
included in the definition.
Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for
any person:
(a) To hire, employ, use, persuade, induce or coerce a child
to perform in the creation or production of any form of
child pornography;
(b) To produce, direct, manufacture or create any form of
child pornography;
(c) To publish offer, transmit, sell, distribute, broadcast,
advertise, promote, export or import any form of child
pornography;
(d) To possess any form of child pornography with the
intent to sell, distribute, publish, or broadcast: Provided.
That possession of three (3) or more articles of child
pornography of the same form shall be prima facie
evidence of the intent to sell, distribute, publish or
broadcast;
(e) To knowingly, willfully and intentionally provide a venue
for the commission of prohibited acts as, but not limited
to, dens, private rooms, cubicles, cinemas, houses or in
establishments purporting to be a legitimate business;
(f) For film distributors, theaters and telecommunication
companies, by themselves or in cooperation with other
entities, to distribute any form of child pornography;
(g) For a parent, legal guardian or person having custody or
control of a child to knowingly permit the child to
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engage, participate or assist in any form of child
pornography;
(h) To engage in the luring or grooming of a child;
(i) To engage in pandering of any form of child
pornography;
(j) To willfully access any form of child pornography;
(k) To conspire to commit any of the prohibited acts stated
in this section. Conspiracy to commit any form of child
pornography shall be committed when two (2) or more
persons come to an agreement concerning the
commission of any of the said prohibited acts and
decide to commit it; and
(l) To possess any form of child pornography.
Note: While letter D talks about possessing with intent to use,
actually the mere possession is also punished in letter L.
Even if the possession is not for the purpose of selling or
distributing it, the mere possession of child porn is already a
crime.
Accessing a child porn is also a crime. Never access a site
with child pornography.
Section 8. Jurisdiction. - Family Court which has territorial
jurisdiction over the place where the offense or any of its
essential elements was committed pursuant to Republic Act
No. 8369, otherwise known as "Family Courts Act of 1997".
Duties of an Internet Service Provider (ISP)
Section 9. Duties of an Internet Service Provider (ISP). - All
ISPs shall notify the PNP or the NBI within 7 days from
obtaining facts and circumstances that any form of child
pornography is being committed using its server or facility.
Nothing in this section may be construed to require an ISP to
engage in the monitoring of any user, subscriber or customer,
or the content of any communication of any such person.
No ISP shall be held civilly liable for damages on account of
any notice given in good faith in compliance with this section.
An ISP shall preserve such evidence for purpose of
investigation and prosecution by relevant authorities.
An ISP shall, upon the request of proper authorities, furnish the
particulars of users who gained or attempted to gain access to
an internet address which contains any form of child
pornography.
All ISPs shall install available technology, program or software
to ensure that access to or transmittal of any form of child
pornography will be blocked or filtered.
An ISP who shall knowingly, wilfully and intentionally violate
this provision shall be subject to the penalty provided under
Section 15(k) of this Act.
The National Telecommunications Commission (NTC) shall
promulgate within ninety (90) days from the affectivity of this
Act the necessary rules and regulations for the implementation
of this provision which shall include, among others, the
installation of filtering software that will block access to or
transmission of any form of the child pornography.
Example:
In Cordova, there are many arrests related to child
pornography. But the people in Cordova are only living in small
houses, so how come they have internet capable of highspeed
live streaming? It is possible that they are not using the mobile
device.
This should have been known by the ISPs. But they did not
report. Failure of the provider to report will make them liable.
They are not liable because they are the giant market players.
Duties of an Internet Content Host
Section 11. Duties of an Internet Content Host. - An internet
content host shall:
(a) Not host any form of child pornography on its internet
address;
(b) Within seven (7) days, report the presence of any form
of child pornography, as well as the particulars of the
person maintaining, hosting, distributing or in any
manner contributing to such internet address, to the
proper authorities; and
(c) Preserve such evidence for purposes of investigation
and prosecution by relevant authorities.
An internet content host shall, upon the request of proper
authorities, furnish the particulars of users who gained or
attempted to gain access to an internet address that contains
any form of child pornography.
An internet content host who shall knowingly, willfully and
intentionally violate this provision shall be subject to the
penalty provided under Section 15(j) of this Act: Provided, That
the failure of the internet content host to remove any form of
child pornography within forty-eight (48) hours from receiving
the notice that any form of child pornography is hitting its
server shall be conclusive evidence of willful and intentional
violation thereof.
Most of child pornography are committed with the use of
internet.
Child Pornography as a Transnational Crime
Section 22. Child Pornography as a Transnational Crime. -
Pursuant to the Convention on transnational Organized Crime,
the DOJ may execute the request of a foreign state for
assistance in the investigation or prosecution of any form of
child pornography by:
(1) conducting a preliminary investigation against the
offender and, if appropriate, to file the necessary
charges in court;
(2) giving information needed by the foreign state; and
(3) to apply for an order of forfeiture of any proceeds or
monetary instrument or properly located in the
Philippines used in connection with child pornography
in the court;
Provided, That if the DOJ refuses to act on the request of for
delaying the execution thereof:
Provided, further, That the principles of mutuality and
reciprocity shall, for this purpose, be at all times recognized.
Section 23. Extradition. - The DOJ, in consultation with the
Department of Foreign Affairs (DFA), shall endeavor to include
child pornography among extraditable offenses in future
treaties.
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Most of the child pornography being committed in the
Philippines are committed with masterminds who are outside of
the Philippines. Because of which, the law itself expressly
declared that the law is a Transnational crime. On this basis,
the DOJ may request assistance to a foreign state, or for
extradition of a foreigner who commits the crime abroad based
on reciprocity.
Reciprocity means that it must be punished here as well as in
the country where the offender is found.
If committed abroad, and it is not transnational, such offender
cannot be arrested because of the territoriality principle.
Cybercrime vs Child Porn
Double jeopardy
If the elements are the same, there is double jeopardy;
otherwise none.
Child porn is a manner of committing trafficking, but the
elements are not necessarily the same.
In the case of Disini vs SOJ (2014), the SC ruled that Libel
and Child Pornography cannot be filed both under the RPC
and the Cybercrime Law, or RA 9775 and Cybercrime Law, as
that would constitute double jeopardy.
With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases.
The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously
discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means."
ANTI-TRAFFICKING IN PERSONS ACT
(RA 9208, as amended by RA 10364)
The main objective of human trafficking is exploitation. There
may be human trafficking even if the victim consented or there
is an agreement.
Example/s:
1. There is a prostitute who willingly offered herself, so
long as there is a pimp involved.
2. If the victim is a child, it does not matter whether there
was consent.
It doesn’t matter whether the victim has a choice either to
leave or to stay since what matters is that somebody made use
or somebody profited from another person.
The essence of human trafficking is not that there was
deprivation of liberty or loss of freedom or that a person was
forced to do it, BUT the fact that one benefits from such act
through the use of another person.
Acts Punished:
1. Original Law: RA 9208
Before, it consisted mainly of three elements but then it was
expanded.
a. What is the act?
i. Recruiting
ii. Harbouring
iii. Receiving a person
iv. Offering
v. Employing
vi. Hiring
vii. Other Acts
b. What is the means of committing it?
i. Fraud
ii. Deceit
iii. Offering money
iv. Any other illegal means
c. For the purpose of exploitation
i. For sexual exploitation
ii. Forced labor
iii. Involuntary servitude
2. New Law: Expanded Human Trafficking Act (RA
10364)
Under the new law, the acts have been expanded to include
not only the offering but also the act of receiving. The means
have also been expanded to include even when deceit was not
employed. The bottom line remains the same and that is
exploitation.
ACTS OF HUMAN TRAFFICKING & PENALTY
1. Acts of human trafficking under Sec.4 (penalty 20
years and fine P1M to P2M; if Qualified, penalty is
Life and fine P2M to P5M)
When is it qualified?
Penalty: Life
1. When a minor for example is the victim, it is
automatically qualified. The means employed in order
to traffic does not matter.
2. When the act of trafficking is committed over a period
of more than 60 days, the crime is Qualified.
Example: If the prostitute is being hired and kept for over 60
days, it becomes qualified human trafficking where the penalty
would be life imprisonment.
ACTS PROMOTING HUMAN TRAFFICKING under Sec. 5
Penalty: 15 years and fine P500k to P1M
Who are those who promote:
1. May be the provider of the building where the
trafficking is committed.
2. Persons who in any manner assisted or promoted the
human trafficking.
You can see that there is no conspiracy because even if these
acts are interrelated and with knowledge of each other’s
criminal acts, they have different liabilities and so conspiracy is
not applied here.
CAUSING THE PUBLICATION OF HUMAN TRAFFICKING
under Sec. 7
Penalty: 6 years and fine P500k to P1M
Who can incur this crime:
3. Media Practitioners
a. Under the old law, the media is prohibited
from publishing the identity of the victim and
the accused.
b. Under the new law, the confidentiality rule
has changed. The confidentiality now only
applies to the identity of the victim. They may
now publish the name and even the picture
of the accused.
If a media reporter makes known to the public the identity of
the victim, that media reporter can suffer the penalty of 6 years
and fine.
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USE OF TRAFFICKED PERSONS under Sec. 11
Refers to the customer of trafficked persons.
Penalty: First Offense - 6 months community service and fine
P50K
Subsequent – 1 year imprisonment and fine P100K.
Prostitution under the RPC and Trafficking Law
RPC Trafficking Law
Prostitute is punished Prostitute is considered a
victim and incurs no criminal
liability.
Customer is not punished Customer incurs criminal
liability.
Under the Human Trafficking law, the customer is penalized
and this is one of the differences between human trafficking
and prostitution under the RPC. Under the RPC, the one who
is punished is the prostitute, while, under the HTL, the
prostitute will not incur criminal liability since she is regarded
as a victim.
Q: Does that mean that the prostitution under the RPC has
been repealed by the HTL?
A: No. They still stand together. If the prostitute is a trafficked
person, which means that she has a manager or a stylist, then
that prostitute is considered a trafficked person and is a victim
who incurs no criminal liability.
If the prostitute, who must be a woman, is a freelancer
because she does not have a manager or a pimp, then she
may not be a considered a victim but a criminal under the
RPC. For the person to be criminally liable, that person must
be a woman.
As amended by RA 10362, accomplices and accessories are
punished and human trafficking is now considered a
transnational crime
ATTEMPTED HUMAN TRAFFICKING
Attempted human trafficking has been expanded to include the
performance of overt acts which do not result in the execution
of the crime by reasons other than spontaneous desistance
and do not result in the execution of the crime. This adopts the
definition of attempted. Not all but certain overt acts have been
performed.
Under the old law, attempted human trafficking does not
include the actual/real definition of attempted. There was still
attempted human trafficking but it merely consists of other sets
of acts. Now, aside from those acts, it already includes any
other acts like hiring.
Example: If you were in the stage of hiring but before
completing that, you were caught, it was not considered as an
attempted human trafficking under the old law. Under the new
law, it is already considered as an attempted human trafficking.
In human trafficking, affidavits of desistance will not cause the
dismissal of the case. The prosecutors are directed to oppose
and manifest objections. Any act involving the means provided
in this Act or any attempt thereof for the purpose of securing
and Affidavit of Desistance from the complainant shall be
punished.
It will not cause the dismissal of the case because the victims
tend to develop a Stockholm Syndrome.
STOCKHOLM SYNDROME – when the victim is kept under
the wings of the trafficker for a long period of time, they will
develop this syndrome wherein the victim will have the
tendency to protect the trafficker because of the feeling of
affinity towards the trafficker. He/she feels that he/she is
dependent to the trafficker.
Prescriptive Period: 10 years
20 years if syndicated or large scale or against a child
The prescriptive period shall commence to run from the day of
release, or in the case of a child victim, from the age of
majority, and shall be interrupted by the filing of the complaint
and shall commence to run again when the proceedings
terminate without the accused being convicted or acquitted.
Note: Syndicated – more than 3 accused
Large Scale – more than 3 victims
Example: Even if a child was exploited in prostitution since
year 2000, she was only released in 2018, the prescriptive
period will start from day of release of the victim, which is
2018.
Double Jeopardy
Q: Can we file cases for violation of other penal laws as well as
human trafficking for the same act? Will there be double
jeopardy if several cases are filed for one act and one of which
constitutes human trafficking?
A: In People v. Lalli, Dec. 2011, the accused was convicted
for Illegal Recruitment and for Human Trafficking. There is NO
double jeopardy as long as the elements of the crimes are not
the same. In this case, the woman was recruited in
Zamboanga and was taken to Malaysia. Upon arriving, she
was employed in a bar to do prostitution. She was eventually
rescued. The prosecutors filed cases of illegal recruitment
because the recruiter did not have a license from POEA, and
human trafficking. Both cases were filed for the same act of
recruiting.
SC said that the two crimes had different elements although it
involved the same act. There may be prosecutions under
different laws although there was only one act involved. There
is no double jeopardy.
Note: Illegal recruitment – you recruit without a license
Human trafficking – different means as provided under
the law and for the purpose of exploitation.
Q: Can Police Officers use entrapment without violating the law
against the use of trafficking victims?
A: Sec. 11 of HTL says that if you use a trafficked person, you
are in fact committing a crime. In fact you are the one
committing the crime.
Q: How can you entrap if that itself is a crime?
A: People v. Casio
The police officers did not go to the extent of using. There was
a time when the police officers will really act as decoys wherein
they will use the prostitute. In this case, the two police officers
were met by the trafficker who offered the “chicks”. Eventually,
they arrested Casio. SC said that the entrapment was a
legitimate operation provided that there is no use.
Remember: The acts punished have been expanded. It is not
necessary that you hire, offer or recruit, it is enough that you
harbour, or you received. The purpose may be sexual
exploitation, forced labor, involuntary servitude or any other
acts to exploit.
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OTHER KINDS OF HUMAN TRAFFICKING
Trafficking of organs. It was made possible before because the
DOH allowed non-relatives and compensation to donors. It was
in 2008 when DOH issued a circular that only relatives can
donate.
Adoption of minors may constitute as trafficking if the purpose
is exploitation and for a consideration. The brokers as well will
incur criminal liability.
JUVENILE JUSTICE AND WELFARE ACT
(RA 9344, as amended by RA 10630)
RA 9344 – Juvenile Justice and Welfare Act; Amended by
RA 10630
Declaration of State Policy (Sec. 2, RA 9344)
(f) The State shall apply the principles of restorative justice in
all its laws, policies and programs applicable to children in
conflict with the law.
(d) Pursuant to Article 40 of the United Nations Convention on
the Rights of the Child, the State recognizes the right of every
child alleged as, accused of, adjudged, or recognized as
having infringed the penal law to be treated in a manner
consistent with the promotion of the child's sense of dignity and
worth, taking into account the child's age and desirability of
promoting his/her reintegration.
The State shall adopt measures for dealing with such children
without resorting to judicial proceedings, providing that human
rights and legal safeguards are fully respected
The most significant provision in RA 9344 is the age of liability
for a minor.
Who is a minor?
One who is below 18. However, there are different categories.
15y/o below Over 15y/o to 18y/o above
below 18y/o
No criminal Age of conditional Age of criminal
liability. liability. liability
*will not incur
criminal liability if
they did not act
with discernment.
If they suffer mental/physical defect
Determine what kind of defect, if the defect is that they are
deaf/mute, it will only constitute as ordinary mitigating.
If the mental defect will not deprive him of his mental faculties,
it will only be an ordinary mitigating.
If he is totally deprived of his mental faculties, it will then be
totally exempting.
Under the Juvenile Justice, the minority will have to be
considered right away unlike in a mitigating circumstance or
exempting circumstance under the RPC. Under the RPC, it will
only be taken in to consideration during the imposition of the
penalty or during the sentencing and after trial. Under the JJ
Law, it will be considered right away to benefit the accused.
Fiscal: By virtue of the minority, all crimes committed by minors
are bailable because of the one degree privileged mitigating
circumstance.
The law says that sentences of minor will only be suspended if
upon sentencing, the accused is still a minor. An exception to
such rule is when the penalty is life, reclusion perpetua or
death because in those cases, there will be no suspension of
sentence. What is referred here is the suspension of sentence
which can only come after the hearing. The minority will be
taken in to consideration in the sentencing which lowers the
penalty by one degree. For the mean time, the penalty will also
be suspended. You cannot sentence a person who is a minor.
Declarador v. Gubaton (no longer applicable)
SC said that you can only suspend the sentence if the
sentence is not reclusion perpetua, life imprisonment or death.
But this has already been abandoned.
People v. Richard Sarcia, Sept. 10, 2009
Even if the penalty is RP, LP or death, it will still be suspended
because RA 9344 provides for such rule and it is beneficial to
the accused.
Once the accused is arrested, the minor will already be entitled
to the benefits of being minor like posting of bail because it is
already anticipated that because of the minority, it is always
one degree lower. It is always bailable even if the minor
committed the most heinous crime.
Life Imprisonment is pegged at 30 years so the one degree
lower there is lower than 30 years. Normally, it is the court who
will set the penalty.
What do you mean by non-bailable?
You have to refer to the 3 categories of bail under the Rule 114
of the ROC. (As a matter of right, as a matter of discretion,
prohibited)
When bail is a matter of discretion, we call it non-bailable. For
example, kidnapping. Although it is called non-bailable, it does
not necessarily mean that you cannot pose bail. It means that
you have to petition the court.
Note: A minor can still be prosecuted even during his minority
but it is the sentencing that is suspended. The trial will not be
suspended unlike in insanity. When the person is insane at the
time of the trial, the trial will be suspended provided that he
was sane at the time of the commission of the crime. In case of
a minor, if the child reaches the age of majority, then he may
already serve the sentence.
DIVERSION
Diversion means to divert or to detour. It can erase the
criminal liability if found to be successful.
Example: A minor committed a crime. If he is not criminally
liable because of his minority (15 years below or between the
ages of 15 and 18 and acted w/o discernment), you cannot
hold him liable so you conduct an intervention because even if
he is not criminally liable, the State still has to do something. In
intervention, the State may assess the child’s environment and
do something to help the child.
If the child is over 15 and below 18, if he acted with
discernment, he can incur a criminal liability. Note that there
are two categories of crime, whether the penalty of the crime
exceeds or does not exceed 6 years.
Penalty is:
6 yrs below – case not filed immediately; diversion
6 yrs & 1 day up – diversion upon order of court
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If the penalty does not exceed 6 years – you do not file the
case in court but proceed with the diversion program. If the
program is successful, the case will not be filed. But if the
program is unsuccessful, the case will then be filed in court.
Types of Diversion:
1. Court Ordered – penalty exceeds 6 years
2. Diversion under the law
In the case of crimes committed which carries with it a penalty
of 6 years below, diversion does not have to be court-ordered.
STATUS OFFENSES
With the amendment of RA 9344, the status offenses has been
expanded. Under the old law, status offenses were limited to
curfew and etc. Other offenses are now covered under the
amending law.
Sec. 11. Sec 57 of RA 9344 is amended to read as follows:
SEC. 57. Status Offenses. – Any conduct not considered an
offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed
by a child."
SEC. 57-A. Violations of Local Ordinances. – Ordinances
enacted by local governments concerning juvenile status
offenses such as, but not limited to, curfew violations, truancy,
parental disobedience, anti-smoking and anti-drinking laws, as
well as light offenses and misdemeanors against public order
or safety such as, but not limited to, disorderly conduct, public
scandal, harassment, drunkenness, public intoxication, criminal
nuisance, vandalism, gambling, mendicancy, littering, public
urination, and trespassing, shall be for the protection of
children.
No penalty shall be imposed on children for said violations, and
they shall instead be brought to their residence or to any
barangay official at the barangay hall to be released to the
custody of their parents. Appropriate intervention programs
shall be provided for in such ordinances. The child shall also
be recorded as a ‘child at risk’ and not as a ‘child in conflict
with the law’. The ordinance shall also provide for intervention
programs, such as counseling, attendance in group activities
for children, and for the parents, attendance in parenting
education seminars."
Fiscal: The offenses enumerated are already beyond status
offenses because the original idea of a status offense is that
you make an act criminal only just because the doer is a minor.
Technically speaking, status offenses is discriminatory against
children. The purpose of these measures is not to punish but to
protect. In such cases where there is no penalty, there will be
an intervention.
BAHAY PAG-ASA
Bahay Pag-asa – refers to a 24-hour child-caring institution
established, funded and managed by local government units
(LGUs) and licensed and/or accredited nongovernment
organizations (NGOs) providing short-term residential care for
children in conflict with the law who are above fifteen (15) but
below eighteen (18) years of age who are awaiting court
disposition of their cases or transfer to other agencies or
jurisdiction.
Part of the features of a ‘Bahay Pag-asa’ is an intensive
juvenile intervention and support center.
Fiscal: Under the new law, we have a Bahay Pag-asa. The
minors committed here can be as low as 12 years old. These
minors do not incur criminal liability but if the crimes they
committed are heinous, they will be committed for intervention.
The bahay pag-asa should have like an “ICU” Intensive
Juvenile Intervention and Support Center.
Kinds of Diversion Programs (Sec. 31, RA 9344, not
amended)
1. At the Barangay Level
2. At the level of the law enforcement officer and the
prosecution
3. At the level of the court
(a) At the level of the Punong Barangay:
(1) Restitution of property;
(2) Reparation of the damage caused;
(3) Indemnification for consequential
damages;
(4) Written or oral apology;
(5) Care, guidance and supervision orders;
(6) Counseling for the child in conflict with
the law and the child's family;
(7)Attendance in trainings, seminars and
lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict
resolution skills;
(iii) values formation; and
(iv) other skills which will aid the
child in dealing with situations
which can lead to repetition of the
offense;
(8) Participation in available community-
based programs, including community
service; or
(9) Participation in education, vocation and
life skills programs.
This is the essence of restorative justice. In restorative justice,
there is an effort to heal not only the accused but the victim as
well. Here, both parties may be asked to meet each other and
talk. At the same time, the offender should be made to realize
that what he did was wrong and for the offender to apologize
for it.
Rosal Hubilla vs People, GR No. 176102 (Nov. 26, 2014)
Section 40. Return of the Child in Conflict with the Law to
Court.– If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have
not been fulfilled, or if the child in conflict with the law has
wilfully failed to comply with the conditions of his/her
disposition or rehabilitation program, the child in conflict with
the law shall be brought before the court for execution of
judgment.
If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with
this Act, to order execution of sentence, or to extend the
suspended sentence for a certain specified period or until the
child reaches the maximum age of twenty-one (21) years.
Fiscal: If diversion is not fulfilled, the CICL shall then be
brought for execution and judgment. He will now be made to
face the consequences of his acts.
PP v. Sarcia, 2009
CICL’s enjoy suspension of sentence until they reach 21 y/o.
Fiscal: Normally, in diversion, the counsel for the accused will
file the motion upon the advice of the social worker. The court
may act on motion or motu proprio. This is only applicable if
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the penalty exceeds 6 years. If it is below 6 years, the
prosecutor may order the diversion.
When the crime is heinous, the court has the discretion to
issue an order for diversion. Diversion is mandatory if the
penalty is 6 years below. If it exceeds 6 years, it becomes
discretionary because a court order is required.
RA 9165 Comprehensive Dangerous Drugs Act, amended
by 10640. Approved: July 15, 2014, amending Sec. 21, RA
9165
Its predecessor, RA 6425, had lower penalties and allowed
plea bargaining.
Definitions:
Dangerous Drugs. – Include those listed in the Schedules
annexed to the 1961 Single Convention on Narcotic Drugs, as
amended by the 1972 Protocol, and in the Schedules annexed
to the 1971 Single Convention on Psychotropic Substances as
enumerated in the attached annex which is an integral part of
this Act.
Controlled Precursors and Essential Chemicals. – Include
those listed in Tables I and II of the 1988 UN Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances as enumerated in the attached annex, which is an
integral part of this Act.
There is another category where it does not involve the
dangerous drug itself but the components or ingredients to
make dangerous drugs.
Acts punished:
1. Importation, (Sec. 4)
2. Sale, transport, administration, dispensation,
delivery (Sec. 5)
3. Maintenance of den, dive, resort (Sec.6)
4. Employees and visitors of den, dive, resort (Sec.
7)
Manufacture
5. Illegal chemical diversion
Example: Use of acetone for the purpose of making
illegal drugs.
6. Manufacture or delivery of equipment
7. Illegal possession of dangerous drugs (Secs. 11 &
13)
8. Illegal possession of paraphernalia (Secs. 12 &
14)
9. Illegal use of drugs
10. Penalty for first offender – rehab for 6 months.
11. Cultivation or culture of plans
12. Illegal prescription
The list is not exclusive. There are other crimes under the law.
Example: A Police officer who does not properly testify. You
may refer to Sec. 91 and 92 of RA 9165
Sale, transport, administration, dispensation, delivery
(Sec. 5)
There must be:
1. Buyer
2. Seller
3. Corpus Delicti – the shabu itself.
Note: Without the corpus delicti, there can be no prosecution of
the crime.
PP v. Mantalaba, GR No. 186227, July 20, 2011
Elements of sale of drugs: (1) the identity of the buyer and the
seller, the object and the consideration; and (2) the delivery of
the thing sold and the payment therefor is necessary.
A buy-bust operation is not invalidated by mere non-
coordination with the PDEA.
People v. Lacbanes
Lack of prior surveillance is not fatal.
Non-compliance by the apprehending/buy-bust team with
Section 21 is not fatal as long as there is justifiable ground
therefor, and as long as the integrity and the evidentiary value
of the confiscated/seized items are properly preserved by the
apprehending officer/team.
In one case, the police conducted a buy-bust operation. The
police officer placed shabu in his left pocket and after arresting
the accused, he proceeded with the Search Incidental to a
Lawful Arrest (SITA) and after the search, he was able to
confiscate another packet of shabu and placed it in his right
pocket. During the trial, he was asked how many packets of
shabu was he able to confiscate and the police officer said that
there was two but then he made a mistake as to which pocket
did he place the different packets of shabu. SC acquitted the
accused because the police officer was not able to preserve
the integrity of the evidence since there was no marking.
Note: The buy-bust money is not indispensible. What is
important is that there is proof of a transaction. What is
important is the object or the corpus delicti.
Fiscal: Sale is not the only transaction prohibited, even the
delivery is prohibited under the same section. If the sale may
not be proven, there could still be the crime of delivery under
Sec. 5.
Illegal possession of dangerous drugs (Secs. 11 & 13)
Possession is not only actual. But may be constructive. When
the crime involves possession (any kind), if what is punished is
possession, it must be distinguished.
Kinds of possession:
1. Actual
2. Constructive
Actual Possession – the accused was really in possession of
the illegal item.
Constructive possession – when the drug is under the
dominion and control of the accused or he has the right to
exercise such dominion or control over the place where it is
found. Exclusive possession or control of the place is not
necessary. (PP v. Tira, May 28, 2004)
Note: This is mala prohibita so good faith is not a defense but
in order for there to be possession in the legal sense, whether
actual or constructive, there must be an animus possidendi.
Animus possidendi as an element – free and conscious
awareness of being in possession of a drug. (Lack of
knowledge)
Conspiracy
There may be conspiracy or an attempt involving drugs. But
Sec. 26 of RA 9165 only refers to certain acts.
In Sec. 26, conspiracy may refer to selling, delivery, transport,
importation, manufacture of drugs, but not for possession.
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Note: Conspiracy is not the crime itself. Here the crime is
under Sec. 5 but the means to commit the crime is through
Sec. 26.
These are the acts where there can be a conspiracy or an
attempt. Conspiracy to possess is not found on the list. It is not
explicitly provided under Sec. 26 so do not use Sec. 26 when
you are confronted with a problem involving conspiracy in
relation to possession.
PP v. Tira, May 28, 2004
In one case, the SC held that there can be conspiracy to
possess. In this case, the husband was subject to a search
warrant. When the search warrant was served, the husband
was not there but the wife was charged for actual possession
and the husband was charged for constructive possession.
They were held to be in conspiracy because they both knew
about it and were keeping it.
Under the precious law, RA 6425, SC convicted both spouses
for possession, stating “The appellants had actual and
exclusive possession and control and dominion over the
house, including the room where the drugs were found by the
policemen. She had full access to the room, including the
space under the bed.”
Pimentel Case
On constitutionality of drug testing SC said that the law cannot
amend a constitutional provision regarding the qualifications of
candidates. (President, V-Pres., Senators)
On whether random testing may be performed on candidates
for senators and whether they can be performed on
respondents under preliminary investigation.
SC said that is violative of the constitution because it violates
the right under the equal protection clause since there was no
valid reason for the classification.
Note: If he was arrested specifically for the use of illegal drugs,
one may not be charged without drug testing. In this instance,
there may be drug testing because you cannot charge the
person of such offense if he will not test positive. If he was
arrested for another offense like selling, there is no need for
drug testing. One can be charged under Sec. 15 if there is no
other crime committed.
Sec. 21 as amended by RA 10640
This talks about the inventory, marking and the taking of
photograph of the confiscated materials. When there are
dangerous drugs confiscated, there must be an inventory.
Procedure:
1. Marking – to preserve the integrity and evidentiary
vale of the dangerous drugs
2. Inventory of the seized items
3. Taking of photographs
4. Witnessed by:
a. Elected public official (not necessarily from the
same place), AND
b. Representative from the prosecutor’s office (not
necessarily the prosecutor); OR
c. of the media (any member)
If the search is by warrant and there is no occupant in the
house, you must have at least 2 witnesses who must be of
good standing must come from the same locality/community.
Where to conduct the inventory:
Search warrant operation – should be conducted at the place
where the search warrant was served
Not a search warrant operation – inventory may be conducted
at the nearest police station or office.
The apprehending team having initial custody and control of
the dangerous drugs, controlled precursors and essential
chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation,
conduct a physical inventory of the seized items and
photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, with an elected
public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies
of the inventory and be given a copy thereof:
Provided, That the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or
at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of
these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures and custody over said
items.
ANTI-VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN (RA 9262)
Effectivity
Took effect on March 8, 2004
“Violence against women and their children”
Refers to any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
Fiscal: The child need not be a common child, provided that
he/she is the child of the woman. It cannot be the child of the
man.
Committed Against
1. Wife and her child
2. Former wife and her child
3. Woman with whom he has or had:
a. Sexual or dating relationship and her child
b. Common child and her child(who may not be
common to both)
Can VAWC be committed by a female?
Yes, because it says “any person.” If it is a relationship
between two females, there can be VAWC.
Can VAWC be committed against a male?
Yes, but only if the male is a child.
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Acts constituting VAWC
A. “Physical violence” refers to acts that include bodily or
physical harm;
B. “Sexual violence” refers to an act which is sexual in
nature;
C. “Psychological violence” refers to acts or omissions
causing or likely to cause mental or emotional suffering of
the victim;
D. “Economic abuse” refers to acts that make or attempt to
make a woman financially dependent.
Fiscal: Under Persons and Family Relations, the obligation to
financially support each other refers only to spouses. If there is
a common law relationship or boyfriend-girlfriend relationship,
the woman, even if she has a child with the man, cannot
demand economic support. In this case, only the child can
demand.
If a woman has the right to demand economic support, it must
be in accordance with her rights in Persons and Family
Relations. While she may civilly demand for support, failure to
give will not amount to a crime unless the purpose is to make
her financially dependent. Not all failure to give support
constitute economic abuse.
Majority of economic abuse cases were filed by girlfriends of
foreigners or wives of OFWs who are not contended with the
amount. Unless the objective is to make the woman financially
dependent, there is no criminal liability. The reason for this is to
prevent abuses. The purpose of the law is not to make women
dependent, rather, so that they are not discriminated.
Salient Features
Economic abuse – defined as an act that makes or attempts to
make a woman financially dependent (the law is enacted to
empower women and should not be used as a tool by women
to extort from men)
Under Section 5
 S5e – purpose or effect is to control her acts or restrict
her movement
 S5i – must cause her emotional anguish
Fiscal: Unlike “economic abuse” where there is that element
that it should restrict her movement, that is not required for
“emotional anguish.”
An OFW husband who is earning P200,000/month sends her
wife P50, 000/month. They don’t have children and they have a
house. There is no use for much money, but she wants
P150,000. Failure to give such amount will not cause her
emotional anguish which will give rise to criminal liability.
Problem
Juan and Juana were former sweethearts. Juana sought to
collect an indebtedness from Juan. In the course of the
conversation, Juana confronted Juan about a rumor he was
spreading about her, and slapped him. Juan retaliated and
inflicted injuries on her. Did Juan commit VAWC or merely
Slight Physical Injuries punished by RPC?
Ans: The word “former” does not matter because the law says
“woman with whom he has or had sexual or dating
relationship.” Even if the purpose is to collect indebtedness,
there is still VAWC.
Updates: VAWC RA 9261
Debalos v. RTC, G.R. No. 193960, Jan. 7, 2013
Notably, while it is required that the offender has or had a
sexual or dating relationship with the offended woman, for RA
9262 to be applicable, it is not indispensable that the act of
violence be a consequence of such relationship.
It is immaterial whether the relationship had ceased for as long
as there is a sufficient evidence showing the past or present
existence of such relationship between the offender and the
victim when the physical harm was committed.
Garcia v. Drilon
Not a violation of the equal protection clause
A husband questioned the constitutionality of this law for
violating the equal protection clause. SC said that it is not
unconstitutional because the traditional structure in society is
that women are discriminated in certain areas. The objective of
the law is not to raise the status of the woman, but to make
them equals with men.
It is supported by data that there are more women who are
battered compared to men. Men are also physically stronger.
In equal protection clause, there may be class legislation if
there is a reason and it is germane to the purpose of the law.
Not an invalid delegation of judicial power
Garcia also questioned the law for giving the barangay captain
the authority to issue the Barangay Protection Order which is
tantamount to invalid delegation of judicial power. SC said that
it is not an invalid delegation of judicial power because in the
first place, what was delegated is not a judicial power. In BPO,
the barangay does not receive evidence and make an
adjudication as to the merits. The purpose is merely to assure
the peace and order and protect the life of a woman who
urgently requires protection from harm. BPO only relates to
physical harm, it does not relate to whether she is entitled to
support which is for the court to decide. It will only prohibit a
man from further inflicting injuries on the woman.
SC said that VAWC is not unconstitutional.
Confidentiality
SECTION 44. All records pertaining to cases of violence
against women and their children including those in the
barangay shall be confidential and all public officers and
employees and public or private clinics to hospitals shall
respect the right to privacy of the victim. Whoever publishes or
causes to be published, in any format, the name, address,
telephone number, school, business address, employer, or
other identifying information of a victim or an immediate family
member, without the latter's consent, shall be liable to the
contempt power of the court.
Any person who violates this provision shall suffer the penalty
of one (1) year imprisonment and a fine of not more than Five
Hundred Thousand pesos (P500,000.00).
Fiscal: In SC decisions under this law, even if there are no
minors involved, the parties are not named.
AAA v. BBB, GR. No. 212448, Jan. 11, 2018
Extra-territoriality
May Philippine courts exercise jurisdiction over an offense
constituting psychological violence under RA 9262 committed
through marital infidelity, when the alleged illicit relationship
occurred or is occurring outside the country? Yes.
Fiscal: For example, a husband is an OFW in Qatar and has a
girlfriend/live-in partner there. Unlike in a bigamy case when
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there can be no criminal prosecution filed against a husband
who contracted a subsequent marriage abroad, VAWC can be
filed against him.
Protection Orders
BPO – issued by the Punong Barangay where the woman is
residing.
Fiscal: The Punong Barangay has 24 hours to act on it. When
a woman is battered and she fears for her life, she cannot right
away go to the court and ask for a TPO because that will take
time. It can be enforced by the Punong Barangay by having the
man ejected from the house.
TPO and PPO – enforceable anywhere in the Philippines
What if he is the owner of the house? What if the owner of
the man is the parents of the man?
It depends.
BPO and TPO
The man will be ejected. This is only true in the case of BPO
and TPO, being temporary in nature.
PPO
When the ejectment will already result in ownership, like in
PPO, which is permanent in nature as will deprive him of his
own property, the prevention of the husband to come to the
house will not hold anymore. There has to be an arrangement
wherein it is the husband who will find another place and rent it
for the wife to stay, in order that he can come home.
A Punong Barangay, Barangay Kagawad or the court hearing
an application for a protection order shall not order, direct,
force or in any way unduly influence the applicant to
compromise or abandon any of the reliefs sought in the
application for protection under this Act. Section 7 of the
Family Courts Act of 1997 and Sections 410, 411, 412 and 413
of the Local Government Code of 1991 shall not apply in
proceedings where relief is sought under this Act.
Leave
SECTION 43. Entitled to Leave. – Victims under this Act shall
be entitled to take a paid leave of absence up to ten (10) days
in addition to other paid leaves under the Labor Code and Civil
Service Rules and Regulations, extendible when the necessity
arises as specified in the protection order.
Any employer who shall prejudice the right of the person under
this section shall be penalized in accordance with the
provisions of the Labor Code and Civil Service Rules and
Regulations. Likewise, an employer who shall prejudice any
person for assisting a co-employee who is a victim under this
Act shall likewise be liable for discrimination.
Battered Woman Syndrome
Refers to scientifically defined pattern of psychological and
behavioral symptoms found in women living in battering
relationship as a result of cumulative abuse.
Fiscal: It will have an effect of a justifying circumstance. The
exact definition is found in the Genosa case, even if decided
before RA 9262 because the SC here made a very thorough
and scientific discussion on BWS.
PP v. Genosa, GR 135981, Jan. 5, 2004
The first case wherein the justifying circumstance of BWS or
Battered Woman Syndrome was thoroughly testified to by
experts and discussed in the ruling.
BWS has 3 phases:
1. The tension-building phase
Minor batterings, verbal or slight physical abuse occurs. The
victim either pacifies the batterer or stays out of his way;
2. Acute battering phase
Characterized by brutality, destructiveness or death. The
victim realizes that she cannot reason with him and resistance
would only exacerbate her condition;
3. Tranquil Period
Batterer may show a tender and nurturing behavior.
Fiscal: To constitute BWS, there must be at least two cycles.
One cycle consists of three phases. Meaning, the abuse must
be repeated.
Woman as accused (justifying circumstance) vs Woman
as victim (VAWC)
If the woman is the accused and she would like to avail of the
BWS as justifying circumstance, she must prove at least two
cycles.
If she is the victim of physical abuse, no need to prove the
cycles for her to file a VAWC case. No need for habituality or a
repeat of the abuse.
Requisites for BWS as a defense
1. Cycle of violence – “each of the phases of the cycle of
violence must be proven to have characterized at least
two battering episodes”
2. The final acute episode preceding the killing of the
batterer must have produced in the battered person’s
mind an actual fear of an imminent harm from her batter
and an honest belief that she needed to use force to save
her life.
3. At the time of the killing, the batterer must have posed
probable—not necessarily immediate and actual—grave
harm to the woman, based on the history of violence.
PP v. Genosa
Here, the accused was charged with Parricide. She interposed
the defense of BWS.
SC convicted the accused. BWS was not considered as
justifying. There was no unlawful aggression at the time of the
killing, the essential element of self-defense was lacking.
BWS was only considered as ordinary mitigating of
“psychological paralysis with diminished will power” under
Pars. 9 and 1 of Art. 13, RPC.
Another ordinary mitigating, passion and obfuscation arising
from the beating she suffered despite her being 8 months
pregnant, was considered in her favor.
Note however that Genosa was decided BEFORE the passage
of RA 9262. Under Art. 26 of the law, unlawful aggression is
NOT required anymore. Amendments that are favorable to the
accused would have retroactive effect.
Fiscal: To avail of BWS as a justifying circumstance, no need
to prove the elements of self-defense. No need to prove that
there is unlawful aggression or that the means employed are
not reasonable.
For example, if the husband came home late and drunk,
immediately went to sleep, then the wife killed him. Under
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Genosa, she would be liable. However, under Sec. 26, she will
no longer incur criminal liability.
The BWS need not be imminent as long as she still has such
condition. It should be testified to by a psychiatrist.
If it is the child of the woman who is under attack, there is
VAWC. However, to constitute Battered Woman Syndrome,
the condition must refer to the woman. In Genosa, it seems
that the battery must be directed towards the woman, not the
child.
What if it is the child who kills? If he is a minor, it will only be a
privileged mitigating circumstance, not justifying. If not a minor,
he can raise other circumstances like incomplete self-defense
which is one degree lower.
Custody of children
SECTION 28. Custody of Children—The woman victim of
violence shall be entitled to the custody and support of her
child/children. Children below seven (7) years old older but
with mental or physical disabilities shall automatically be given
to the mother, with right to support, unless the court finds
compelling reasons to order otherwise.
A victim who is suffering from battered woman syndrome shall
not be disqualified from having custody of her children. In no
case shall custody of minor children be given to the perpetrator
of a woman who is suffering from Battered woman syndrome.
Fiscal: The preference of the custody of children will be to the
mother even if she is suffering from BWS.
Barangay officials, law enforcement officials and even the
judges, cannot settle VAWC cases. Before the enactment of
VAWC, people will just settle them for being domestic
problems. Police used to shy away from these cases because
whenever the woman files, then later on reconciles with the
husband, a case will be filed against the police. However,
under VAWC Law, the responders, public officials, barangay
officials, court should not attempt to settle VAWC cases. In
fact, there is a penalty that can be incurred if there is
settlement.
However, if relatives attempt to settle, there is no penalty for
that. It is a right’s based prosecution which means that they
cannot be compelled to file a case. Provided that the initiative
did not come from public officials.
ANTI-CARNAPPING
(RA 6539, as amended by RA 10883)
Carnapping is the taking with intent to gain of a motor vehicle
belonging to another, without the latter’s consent, OR by
means of violence or intimidation, OR by use of force upon
things
Fiscal: Even if that is just an electric bike, motorcycle, or any
motor vehicle on land that requires registration in the LTO or
local government, if there is taking with intent to gain, that is
covered under carnapping. It may be committed in the concept
of theft or robbery.
People v. Bustinera, GR 148233, June 8, 2004
When there is taking of a motorized land vehicle, there is
carnapping. This is regardless of the fact that qualified theft
also punishes the same. The Anti-carnapping law is a later law
and is a specific law. Thus, it should prevail.
Unfortunately, while the penalty for qualified theft was lowered
with the amendment under RA 10951, the penalty for
carnapping was increased with the amendment in RA 10883.
In Bustinera, the accused was charged in an information
alleging qualified theft, but he was sentenced to carnapping.
Penalties
 Without violence or intimidation or force upon things (in
the concept of theft) – 20-30 years
 With violence or force (in the concept of robbery) – 30 to
40 years
 Owner, driver or occupant is raped or killed – life
imprisonment. This means forever, but for purposes of
parole, the penalty is limited to 30 years.
The crime of concealment of carnapping is also punished
under Sec. 4 of RA 10883. This is now being punished
because carnapped vehicles are being sold by secondhand
dealers. The one who did not participate in the taking will not
be liable for the carnapping. However, he may still be held
liable for fencing. The same is true for theft and robbery when
there is no evidence that he participated in the taking. Fencing
carries with it a higher penalty.
There is a prima facie presumption that if you have in your
possession something stolen that you took it. However, since it
is only prima facie, there must be independent evidence that
you took it. Otherwise, you cannot be made liable for the
robbery.
If somebody saw you entered the house and you are not in
possession, you cannot be made liable because it will create
reasonable doubt. However, if you have it in your possession,
there is already the presumption which is strengthened by a
circumstantial evidence.
ANTI-FENCING LAW (PD 1612)
Fencing
The act of a person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in any other manner
deal in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived from
the proceeds of the crime of robbery or theft.
Mere possession of the thing is prima facie evidence of
fencing. The burden of proof upon the fence to overcome such
presumption.
ILLEGAL NUMBER GAMES (RA 9287)
Fiscal: There are many laws on gambling such as game fowl or
under PD 1602 committed by means of gambling by cards, by
mechanical means such as video karera, by dice, mahjong
tiles, hantak, etc. It covers possession of gambling
paraphernalia. If you are in possession of masiao tip sheet,
you can be held under PD 1602, but you cannot be held liable
under such law if you are betting.
Unfortunately, PD 1602 does not cover number combinations
(aside from possession of gambling paraphernalia). Thus,
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Congress passed RA 9286 which covers masiao, swertres and
jueteng which involve number combinations.
Acts punished
a. Bettor – 30-90 days
b. Personnel/staff –6 years and 1 day to 8 years (6y1d to 8y)
c. House or vehicle owner – same
d. Collector or agent – 8 years and 1 day to 10 years (8y1d to
10y)
e. Coordinator, supervisor – 10 years and 1 day to 12 years
(10y1d to 12y)
f. Operator, manager – 12 years and 1 day to 14 years
(12y1d to 14y)
Possessing gambling paraphernalia is not a crime.
Fiscal: Under this law, there is no conspiracy. The act of one is
not the act of all. Different acts, different crimes, and different
penalties. There was an attempt to make a law or an ordinance
to cover online gambling since this is not covered under PD
1602.
BOUNCING CHECKS LAW (BP 22)
Passed on April 3, 1979
Acts penalized
a. The making or drawing and issuing of a check to apply on
account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to
stop payment.
Fiscal: “Check” – it does not matter whether the check is
postdated or on date.
b. The making or drawing and issuing of a check by a
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.
Fiscal: Even if the check is dated March 1, it is not only
required that the funds should be covered only up to March 1.
It should cover 90 days after that date before it becomes stale
and the liability is extinguished. It does not matter whether
deceit has been employed or not. What matters is that there is
evidence to prove that the check belongs to you. If the one
who transacted the check is not the owner, there is no BP 22.
There may be estafa.
For BP 22, it must be the owner or the one who signed the
check who should transact. Even if the owner really signed the
check but he will change his signature, that will be a defense
on his part because he can deny that it was not his signature.
However, not all the time that it will be successful. If it will be
proven that it was really him who signed and he just changed
his signature, he can still be held liable. If he received
something in exchange of the check, it will be evidence against
him.
Vaca v. CA
Fine is the preferred penalty in BP 22 cases
The penalty provided under BP 22 is fine or imprisonment. The
SC enjoined courts not to implement the penalty of
imprisonment but only the penalty of fine. This is not judicial
legislation because the court never attempted to change the
penalty. Imprisonment as a penalty is still there, but it is the
court’s discretion what penalty to implement as it is provided by
law.
After the ruling in this case, SC issued a SC Circular. It
became like an order or directive from the SC requiring judges
not to implement the penalty of imprisonment, but only fine.
Notice of dishonour must be received personally
In BP 22 cases, there must be notice of dishonor. Otherwise,
there can be no ripened cause of action. The notice of
dishonor must be received personally. There must be proof of
receipt by the offender himself. It cannot be presumed. There
must be evidence that even if the notice was received by the
Security Guard or the Secretary, it eventually came into the
hands of the offender. By “personal” it is not the same as
“personal service.”
In fact, it can be done through LBC. What is important is that
there must be receipt of the notice of dishonor in writing. If it is
made through registered mail, it is very unreliable. Aside from
the receipt, you also have to present the return card which
never returns or at best, is returned after 3 months or so.
As long as the crime has not yet prescribed, you can still give a
notice of dishonor.
Can you still file a case even if the check already became
stale?
Not anymore. Before the lapse of 90 days, the check must be
presented for payment. If there are extensions granted, that
can result in the staling of the check.
Civil Liability
Gosiaco v. Ching and Casta, GR 173827, April 16, 2009
The civil liability attaching to the signatory arises from the
wrongful act of signing the check despite the insufficiency of
funds in the account, while the civil liability attaching to the
corporation is itself the very obligation covered by the check or
the consideration for its execution. Yet these civil liabilities are
mistaken to be indistinct. The confusion is traceable to the
singularity of the amount of each.
In the BP 22 case, the court should determine whether or not
the signatory had signed the check with the knowledge of
insufficiency of funds or credit in the bank, while in the civil
case the trial court should ascertain whether or not the
obligation itself is valid and demandable. The litigation itself is
valid and demandable. The litigation of both questions could,
in theory, proceed independently and simultaneously without
being ultimately conclusive on one or the other.
Fiscal: Under BP 22, the person who would be liable is the
issuer. If the check is transacted by someone other than the
issuer, the person who transacted the check could be liable for
estafa, not BP 22.
In the case of company checks, the signatory of the checks
usually do not benefit from the proceeds of the checks. For
example, these are used for parole or payment of goods and
the checks bounced. However, the law is clear that the only
once to be held liable are the officers who actually signed the
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check. Officers who may have benefitted but did not sign the
checks will not incur criminal obligation.
In this case, the owner of the company is A. The president, B,
and treasurer, C, signed the check. A is not an authorized
signatory of the check even if he is the owner of the company.
A transacted with X so that the latter will invest in the
company. B and C had nothing to do with the transaction. X
gave A a check worth 10M. In exchange, A gave X 2 checks
signed by B and C—10M and 2M representing the Return of
Investment. The 10M check given by X was pocketed by A.
Later on, when X presented the checks for payment, both
checks bounced.
Can X file a criminal case against A under BP 22? No,
because A is not the issuer of the check.
Under the Rules of Court and the RPC, if there is a criminal
liability, there is also a civil liability. In fact, you can consolidate
them in one case.
B and C were convicted because they issued the check. Being
criminally liable, can they also be made civilly liable? Here, the
SC said that they cannot be held civilly liable.
Can A be included in the criminal case since B and C cannot
be civilly liable? No, because there is no conspiracy in BP 22.
What will happen to A? He is the only one civilly liable. We
have a case wherein the one who is criminally liable, cannot
be held civilly liable. While the one who is civilly liable, cannot
be held criminally liable.
Estafa and BP 22: 1 act, 2 crimes
Rodriguez v. Ponferrada, GR Nos. 1555531-34, July 29,
2005
The crimes of estafa and violation of BP 22 are different and
distinct from each other.What the Rules of Court prohibits is
the reservation to file the corresponding civil action. The
criminal action shall be deemed to include the corresponding
civil action. In the instant case, the criminal action for estafa
was filed prior to the criminal case for violation of BP 22. The
fact that the Rules do not allow the reservation of civil actions
in BP 22 cases cannot deprive private complainant of the right
to protect her interests in the criminal action for estafa.
Nothing in the current law or rules on BP 22 vests the
jurisdiction of the corresponding civil case exclusively in the
court trying the BP 22 criminal case.
Fiscal: There can be prosecution under both. There is no
double jeopardy because the elements are not the same. For
one act, there can be no crimes. In the case wherein there
was buying of one car, but 24 checks were issued. There will
be 24 cases of BP 22, but there will only be one case for
estafa.
ANTI-GRAFT AND CORRUPT PRACTICES ACT
(RA 3019)
Approved August 17, 1960, Cognizable before the RTC or
Sandiganbayan
The Ombudsman
Created under RA 6770
Fiscal: The Ombudsman is now the main investigator for
crimes involving 3019.
Cases
1. Criminal case
2. Administrative
This will be imposed by the Ombudsman provided that the act
was committed in the performance of his public function.
Otherwise, the Ombudsman will not have jurisdiction.
3. Request for Assistance
RA 3019
Any offense committed in relation to the performance of public
functions of a public official.
Fiscal: When we say “graft and corrupt practices,” even if it is
provided under a special penal law, it is inherently immoral
therefore mala inse. However, there are provisions under the
law which are considered malum prohibitum, in which case,
good faith shall not be a defense.
Go v. Sandiganbayan, GR 172602, Sept. 3, 2007, citing
Luciano v. Estrella, GR L-31622, Aug. 31, 1970
Section 3(g) partakes the nature of malum prohibitum; it is
the commission of that act as defined by law, not the character
or effect thereof, that determines whether or not the provision
has been violated. Malice or criminal intent is completely
immaterial.
Section 3(g), however applies restrictively only to public
officers entering into a contract on behalf of the government
manifestly or grossly disadvantageous to the government.”
Corrupt Practices
(a) Persuading, inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations
duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit
such violation or offense.
(b) Directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction
between the Government and any other part, wherein the
public officer in his official capacity has to intervene under the
law.
(c) Directly or indirectly requesting or receiving any gift, present
or other pecuniary or material benefit, for himself or for
another, from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will secure or
obtain, any Government permit or license, in consideration for
the help given or to be given, without prejudice to Section
thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending official
business with him during the pendency thereof or within one
year after its termination.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses
or permits or other concessions.
Fiscal: Unlike other provisions which are very specific, (e) is
broad because it says “any undue injury” or “any unwarranted
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benefits.” It means that whoever benefits or whoever is injured.
Whether the government or another party is injured, it is a
crime.
In one case, the SC said that to constitute a crime, it is not
enough that there is partiality, bad faith or negligence. There
must be manifest partiality, evident bad faith or gross
inexcusable negligence.
(f) Neglecting or refusing, after due demand or request, without
sufficient justification, to act within a reasonable time on any
matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose
of favoring his own interest or giving undue advantage in favor
of or discriminating against any other interested party.
Fiscal: When the public writes a letter under the Anti-Red Tape
Law (ARTA), that official is supposed to respond within 15
days or more if there is an investigation to be done, but there
must be a response. Otherwise, it is tantamount to a crime.
ARTA will only give rise to criminal liability. However, under
this paragraph, it can give rise to both administrative and
criminal liability.
(g) Entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary interest
in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from
having any interest.
(i) Directly or indirectly becoming interested, for personal gain,
or having a material interest in any transaction or act requiring
the approval of a board, panel or group of which he is a
member, and which exercises discretion in such approval,
even if he votes against the same or does not participate in the
action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
(j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for or
not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who
is not so qualified or entitled.
(k) Divulging valuable information of a confidential character,
acquired by his office or by him on account of his official
position to unauthorized persons, or releasing such information
in advance of its authorized release date.
Fiscal: This is very crucial now considering that there is the
FOI. There is an executive order by the President saying that
all public documents in the executive department must be
furnished. However, you have to distinguish because if it is of a
confidential character such as if it involves a case involving a
minor. That can give rise to a crime under RA 3019 or the law
which provides for its confidentiality. If the latter does not give
a penalty, RA 3019 can serve as a fall-back provision.
While the law is directed at public officials, it also requires
private officials to comply therewith. They can also incur
criminal liability if they violate certain prohibitions.
Prohibition on private individuals
(a) For those having family or close personal relation with
any public official to capitalize or exploit or take advantage of
such family or close personal relation by directly or indirectly
requesting or receiving any present, gift or material or
pecuniary advantage from any other person having some
business, transaction, application, request or contract with the
government, in which such public official has to intervene.
Family relation shall include the spouse or relatives by
consanguinity or affinity in the third civil degree.The word
"close personal relation" shall include close personal
friendship, social and fraternal connections, and professional
employment all giving rise to intimacy which assures free
access to such public officer.
Prohibition on certain relatives
It shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the
House of Representatives, to intervene, directly or indirectly, in
any business, transaction, contract or application with the
Government: Provided, That this section shall not apply to any
person who, prior to the assumption of office of any of the
above officials to whom he is related, has been already dealing
with the Government along the same line of business, nor to
any transaction, contract or application already existing or
pending at the time of such assumption of public office, nor to
any application filed by him the approval of which is not
discretionary on the part of the official or officials concerned
but depends upon compliance with requisites provided by law,
or rules or regulations issued pursuant to law, nor to any act
lawfully performed in an official capacity or in the exercise of a
profession.
Fiscal: The President will be immune. Only the relative within
the third civil degree will be liable.
SALN
Section 7. Statement of assets and liabilities. Every public
officer, within thirty days after the approval of this Act or after
assuming office, and within the month of January of every
other year thereafter, as well as upon the expiration of his term
of office, or upon his resignation or separation from office, shall
prepare and file with the office of the corresponding
Department Head, or in the case of a Head of Department or
chief of an independent office, with the Office of the President,
or in the case of members of the Congress and the officials
and employees thereof, with the Office of the Secretary of the
corresponding House, a true detailed and sworn statement of
assets and liabilities, including a statement of the amounts and
sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next
preceding calendar year: Provided, That public officers
assuming office less than two months before the end of the
calendar year, may file their statements in the following months
of January.
Fiscal: A public officer is required to file his SALN after the end
of the year.
Unexplained wealth
Section 8. Dismissal due to unexplained wealth. If in
accordance with the provisions of Republic Act Numbered One
thousand three hundred seventy-nine, a public official has
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been found to have acquired during his incumbency, whether
in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his
salary and to his other lawful income, that fact shall be a
ground for dismissal or removal. Properties in the name of the
spouse and unmarried children of such public official may be
taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank
deposits shall be taken into consideration in the enforcement of
this section, notwithstanding any provision of law to the
contrary.
Fiscal: If the unexplained wealth exceeds 50 Million, there can
also be a case for plunder.
Suspension and loss of benefits
Section 13. Suspension and loss of benefits. Any public officer
against whom any criminal prosecution under a valid
information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be
suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits under
any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed
to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
Fiscal: Suspension here refers to the criminal, not the
administrative case.
Types of suspensions
Note that in one crime, it is possible that there are three types
of suspensions that can be imposed, to wit:
1. Preventive suspension in the administrative case
When there is a violation of 3019, there is a preventive
suspension for the administrative case which cannot exceed 6
months. In the admin, we have the preventive suspension and
suspension as a penalty. Once the case is filed, preventive
suspension.
2. Suspension as penalty in the administrative case
As a penalty, it may exceed 6 months. Once the case is
decided, there can be another suspension which is a penalty.
3. Preventive suspension in the criminal case
There is also preventive suspension under the criminal case
which will only be imposed once there is already a criminal
case filed in court. Unlike the preventive suspension in the
admin case which is imposed right away even before
preliminary investigation, criminal preventive suspension
comes after preliminary investigation or the filing of the
information. When a case is filed with the Sandiganbayan, he
will not yet be suspended. He can only be suspended after the
information is proven to be valid.
Some defense lawyers will file a motion to quash once the
information is filed. This will hold the issuance of the warrant of
arrest. You have to question the validity of the information to
hold the suspension because once there is an arraignment,
that means that the information is valid or that even if it is
invalid, it’s validity was not questioned.
The preventive suspension under the criminal case will only be
under 3019. If the charges are not for 3019, like robbery or
extortion under the RPC, there can be no preventive
suspension for the criminal case. However, if you file robbery
under 3(e), since it states “any undue injury,” there can be
preventive suspension.
Aguinaldo Doctrine
The Aguinaldo doctrine only refers to the administrative case.
Even if you are elected twenty times, the criminal liability will
not be extinguished. In fact, even if you already retired from
public service, the criminal liability will not be extinguished. It
will not be extinguished by the simple expedient of separating
yourself from public service.
Exception
Section 14. Exception. Unsolicited gifts or presents of small or
insignificant value offered or given as a mere ordinary token of
gratitude or friendship according to local customs or usage,
shall be excepted from the provisions of this Act.
Nothing in this Act shall be interpreted to prejudice or prohibit
the practice of any profession, lawful trade or occupation by
any private person or by any public officer who under the law
may legitimately practice his profession, trade or occupation,
during his incumbency, except where the practice of such
profession, trade or occupation involves conspiracy with any
other person or public official to commit any of the violations
penalized in this Act.
Fiscal: Receiving small and insignificant gifts like calendars will
not make you liable. There are public officials who may be
authorized to practice a profession. For instance, one can be a
Fiscal and a Professor of USC at the same time. If USC will
give gifts and bonuses, there is no crime because that is given
in relation to the profession. A vice mayor can also practice as
a lawyer. He can receive Attorney’s fees in relation to his
profession, other than being a public official.
Flores v. Layosa, GR 154714, Aug. 12, 2004
Once a court determines that the information charging a public
officer with an offense under R.A. No. 3019 or Title 7, Book II
of the Revised Penal Code, or any other offense involving
fraud upon government or public funds or property is valid, it is
bound to issue an order of preventive suspension of the
accused public officer as a matter of course.
The order of suspension pendente lite, while mandatory in
nature, is by no means automatic or self-operative. Before
such suspension is imposed, a determination as to the validity
of the information must first be made in a pre-suspension
hearing. There is no hard and fast rule as to the conduct of
such hearing, as the Court has previously explained in several
cases.
Fiscal: Even if the information is already filed in court, the court
will only issue the suspension if there is a motion filed. It is not
automatic or self-executing. It is mandatory in the sense that it
is not discretionary in the court.
Preliminary Investigation
Under RA 3019, the exclusive jurisdiction to conduct
Preliminary Investigation is with the Ombudsman. But, not all
crimes involving public officials are under 3019. Like extortion
which is under the RPC. It can be filed before other bodies like
the Prosecutor’s office. It has concurrent jurisdiction with the
Ombudsman.
Where should it be filed? It will now depend on the rank and
the salary grade of the official. If the official has a salary grade
of 27 or more, then it should be filed with the Sandiganbayan.
It has its own set of Prosecutors because the Ombudsman
does not always prosecute. The Ombudsman usually does
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preliminary investigation or administrative cases. For criminal
cases, they only conduct Preliminary Investigation. The Office
of the Special Prosecutor which is also part of the Ombudsman
will prosecute.
If Salary Grade 26 or below, it could be filed with the regular
courts—MTC or RTC. The one who will prosecute will be the
Ombudsman or the Ombudsman will deputize the prosecutor if
the case is under 3019. If not 3019, the Prosecutor’s office will
conduct the PI and also prosecute. No need of deputation from
the Ombudsman.
Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto, GR 130817, Aug. 22, 2001
Sec. 11, RA 3019 provides that all offenses prescribe in “15
years.”
Since R.A. No. 3019, as amended, is a special law, the
applicable rule in the computation of the prescriptive period is
Act No. 3326. Prescription shall begin to run from the day of
the commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and
institution of judicial proceedings. The prescription shall be
interrupted when proceedings are instituted against the guilty
person and shall begin to run again if the proceedings are
dismissed for reasons not constituting double jeopardy.
For violations of RA No. 3019 committed prior to 1986 Edsa
Revolution, the government could not have known of the
violations at the time the transactions were made. No person
would have questioned their legality. The prescriptive period
commenced from the discovery in 1992 after an exhaustive
investigation by the Presidential Ad Hoc Committee on Behest
Loans.
Probation
Colinares v. People, GR 182748, Dec. 13, 2011
Colinares was convicted by the trial court for frustrated
homicide and sentenced to a maximum of prision mayor. On
appeal, the appellate court found him guilty only for attempted
homicide and sentenced him to prision correctional. Can he
apply for probation?
ANTI-TORTURE LAW (RA 9745)
Took effect in 2009
“Torture”- an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted:
a) To obtain from him/ a 3rd person information or a
confession;
b) To punish him for an act he or a third person has
committed or is suspected of having committed;
c) To intimidate or coerce him or a third person;
d) Or for any reason based on discrimination of any
kind,
When such pain or suffering inflicted by or at the instigation of
or with the consent or acquiescence of a person in authority or
agent of a person in authority.
Section 13. Who are Criminally Liable. - Any person who
actually participated Or induced another in the commission of
torture or other cruel, inhuman and degrading treatment or
punishment or who cooperated in the execution of the act of
torture or other cruel, inhuman and degrading treatment or
punishment by previous or simultaneous acts shall be liable as
principal
Any superior military, police or law enforcement officer or
senior government official who issued an order to any lower
ranking personnel to commit torture for whatever purpose shall
be held equally liable as principals.
The immediate commanding officer of the unit concerned of
the AFP or the immediate senior public official of the PNP and
other law enforcement agencies shall be held liable as a
principal to the crime of torture or other cruel or inhuman and
degrading treatment or punishment for any act or omission, or
negligence committed by him/her that shall have led, assisted,
abetted or allowed, whether directly or indirectly, the
commission thereof by his/her subordinates. If he/she has
knowledge of or, owing to the circumstances at the time,
should have known that acts of torture or other cruel, inhuman
and degrading treatment or punishment shall be committed, is
being committed, or has been committed by his/her
subordinates or by others within his/her area of responsibility
and, despite such knowledge, did not take preventive or
corrective action either before, during or immediately after its
commission, when he/she has the authority to prevent or
investigate allegations of torture or other cruel, inhuman and
degrading treatment or punishment but failed to prevent or
investigate allegations of such act, whether deliberately or due
to negligence shall also be liable as principals.
Any public officer or employee shall be liable as an accessory
if he/she has knowledge that torture or other cruel, inhuman
and degrading treatment or punishment is being committed
and without having participated therein, either as principal or
accomplice, takes part subsequent to its commission in any of
the following manner:
(a) By themselves profiting from or assisting the
offender to profit from the effects of the act of torture
or other cruel, inhuman and degrading treatment or
punishment;
(b) By concealing the act of torture or other cruel,
inhuman and degrading treatment or punishment
and/or destroying the effects or instruments thereof in
order to prevent its discovery; or(c) By harboring,
concealing or assisting m the escape of the principal/s
in the act of torture or other cruel, inhuman and
degrading treatment or punishment: Provided, That
the accessory acts are done with the abuse of the
official's public functions.
- Private persons can be liable for Torture under RA
9745 if they are in conspiracy with the public official.
“Other cruel, inhuman and degrading treatment or
punishment (CID)” refers to a deliberate and aggravated
treatment or punishment not enumerated under Sec. 4 of this
Act, inflicted by a person in authority or agent of a person in
authority against a person under his/her custody, which attains
a level of severity causing suffering, gross humiliation or
debasement to the latter.
 CID is apart from torture because there may be acts
which are not technically Torture. Not all acts that are
cruel will result to Torture regardless the law punishes
not only Torture but also cruel, inhuman and degrading
treatment or punishment.
 They are all punished provided that it is deliberate.
Examples of physical torture:
 Systematic beating, head banging, punching, kicking,
striking with truncheon or rifle butt or other similar
objects, and jumping on the stomach;
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 Food deprivation or forcible feeding with spoiled food,
animal or human excreta
 Rubbing of pepper or other chemical substances on
mucous membranes, or acids or spices directly on the
wound(s);
 The submersion of the head in water or water polluted
with excrement, urine, vomit and/or blood until the
brink of suffocation
- This is the crime that does not
prescribe. Even if the official is
already retired or became a
civilian, it does not prescribe.
Examples of mental torture:
(1) Blindfolding;
(2) Threatening a person(s) or his/her relative(s) with bodily
harm, execution or other wrongful acts;
(3) Confinement in solitary cells or secret detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a “show trial”, public display or
public humiliation of a detainee or prisoner;
(6) Causing unscheduled transfer of a person deprived of
liberty from one place to another, creating the belief that
he/she shall be summarily executed
(7) Maltreating a member/s of a person’s family;
(8) Causing the torture sessions to be witnessed by the
person’s family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person naked,
parading him/her in public places, shaving the victim’s
head or putting marks on his/her body against his/her will;
(11) Deliberately prohibiting the victim to communicate with any
member of his/her family
 The infliction must be deliberate. Torture must be
deliberately inflicted.
 In certain prisons, they have suspension of dalaw
but that can be a security purposes. If the
prohibiting of dalaw is for security purposes it will
not constitute torture.
 For it to be torture, the purpose must be any of the
three. If the purpose is other than the three, even if
there is that act but there is no purpose, then there
will be no Torture.
Prohibited detention - Secret detention places solitary
confinement, incommunicado or other similar forms of
detention, where torture may be carried out with impunity.
the PNP and the AFP and other LEAs shall make an updated
list of all detention centres under their jurisdiction with the
corresponding data not he detainees. This list shall be made
available to the public at all times, with a copy of the complete
list available at the national headquarters of the PNP and the
AFP. A copy of the complete list shall likewise be submitted by
the PNP, AFP, and all other law enforcement agencies to the
CHR, such list to be periodically updated within the first 5 days
of every month at the minimum.
The CHR shall have the jurisdiction to go around and visit
detention places to check if there has been any violations.
Applicability of the Exclusionary Rule; exception.
Any confession, admission or statement obtained as a result of
torture shall be inadmissible in evidence in any proceedings,
except if the same is used as evidence against a person or
persons accused of committing torture.
There is only selective admissibility, in a sense that the
confession will not be used against the person who made the
confession but may be used against the person who obtained
the information by reason of torture. It can only be used for the
prosecution of the torturer under this law.
WHO ARE CRIMINALLY LIABLE?
Any person who actually participated or induced another in the
commission of torture or other cruel, inhuman and degrading
treatment or punishment or who cooperated in the execution of
the act of torture or other cruel, inhuman and degrading
treatment or punishment by previous or simultaneous acts
shall be liable as principal. Hence, if they did not participate,
they may not be held criminally liable because participation is a
requirement except for a principal by inducement.
Any superior military, police or law enforcement officer or
senior government official who issued an order to any lower
raking personnel to commit torture for whatever purpose shall
be held equally liable as principals. What about the superiors
who did not order the torture? They shall not be held as
principals because they are not included as criminally liable
under the law. But that is only applicable in this special law on
torture because there is another law that punished the superior
even if he has not taken part in it.
Those who benefited from he crime or concealed the effects of
the crime are punished as accessories.
Torture as a separate and independent crime.
Torture as a crime shall not absorb or shall not be absorbed by
any other crime or felony committed as a consequence, or as a
means in the conduct or commission thereof. In which case,
torture shall be treated as a separate and independent criminal
act whose penalties shall be imposable without prejudice to
any other criminal liability provided for by domestic and
international laws.
Exclusion from the coverage of Special Amnesty Law.
In order not to depreciate the crime of torture, persons who
have committed any act of torture shall not benefit from any
special amnesty law or similar measures that will have the
effect of exempting them from any criminal proceedings and
sanctions.
Applicability of Refouler.
No person shall be expelled, returned, or extradited to another
State where there are substantial grounds to believe that such
person shall be in danger of being subjected to torture. For the
purposes of determining whether such grounds exist, the
Secretary of DFA and the Secretary of DOJ, in coordination
with he Chairperson of the CHR, shall take into account all
relevant considerations including the existence in the
requesting State of a consistent pattern of gross, flagrant or
mass violations of human rights.
Applicability of the RPC.
The provisions of the RPC insofar as they are applicable shall
be suppletory to this Act. Moreover, if the commission of
Crimes Against Persons and Crimes Against Personal Liberty
and Security of the RPC is attended by any of the acts
constituting torture and other cruel, inhuman and degrading
treatment or punishment as defined herein, the penalty to be
imposed shall be in its maximum period.
QUESTION:
1. Can a superior officer escape liability under this law if he
was not aware of the torture perpetrated by his
subordinates? YES, because in order to be liable under
the Torture Law, to be a principal, he must have
participated, induced, ordered or benefitted from it, in
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which case he will be an accessory. Which means that this
can be a defense under the Torture Law. He is not liable
under RA 9745. But he could be liable under IHRL and
IHL if he could have prevented it from happening but did
not, or if he failed to conduct an investigation, prosecute or
punish the perpetrators pursuant to the principle we call as
the Command Responsibility for the militaries or Superior
Liability for civilians such as police officers. Mere feign of
ignorance should not exculpate the superior under the
IHL.
1. The police caught a man who was involved in a terroristic
activity. Investigation showed that he was part of a group
and that his comrades were holding several women and
children hostage. There is a need to rescue the hostages
but the suspect would not divulge their location. Is it okay
to use torture on him in order to save the lives of the
hostages? No, because torture is always prohibited.
Torture is non-derogable and can never be justified by any
state of emergency.
IHL vs. IHRL
IHL (International Humanitarian Law) is the body of laws
that govern the conduct of war, a “collection of treaties and
acceptable practices which govern the conduct of war, the
status, treatment, rights and obligations of belligerent as well
as neutral and allied States, and of institutions and individuals
involved int he armed conflict, whether as military personnel,
health and relief providers, members of the media or as
civilians.”
IHL applies only during an armed conflict, whether internal or
international.
RA 9851, a domestic law regarding IHL does not prescribe.
(Section 11)
ARMED CONFLICT
Armed conflict means any use of force or armed violence
between States or a protracted armed violence between
States or protracted armed violence between government
authorities and organised armed groups or between such
groups within a State.
Armed conflict may be international, between 2 or more States,
including belligerent occupation; or non-international, between
governmental authorities and organised armed groups or
between such groups within a State. It does not cover internal
disturbances or tensions such as riots, isolated and sporadic
acts of violence or other acts of a similar nature. (Ocampo v.
Abando, GR No. 176830, Feb. 11, 2014)
So the case of the Maute Group against the Philippine military
forces is considered an internal armed conflict. During those
times, IHL applies regardless of Martial Law.
However, government conflict with the NPAs shall not be
considered as internal armed conflict because it is not a war.
Armed conflict involves death and destruction, and these could
be acceptable or legitimate under IHl.
But IHRL apple at all times, even during an armed conflict.
Thus, killing a combatant involved in a n armed conflict is
allowed, but killing him inside the children’s schools or civilian
places would be a violation of IHRL. The balancing (or
proportionality) test should be applied.
2 components of IHL:
1. Laws of war or armed conflict (or LOA. governed by The
Hague Conventions)
2. Laws for the protection of victims of war (also commonly
termed as IHL, governed by the Geneva Conventions)
The Philippines law on IHL is RA 9851. Being a relatively new
law and inspired by international jurisprudence, interpretations
of its provisions maybe in the light of such international
jurisprudence.
Fundamental Rules on IHL:
1. Belligerent States or combatants cannot use method and
weapons of warfare that are prohibited or restricted
(poisonous gases, bacteriological substances);
2. Attacks must be listed to military objectives;
3. Torture, CID, corporal punishment are not allowed;
4. Civilians, hors de combat, enemies who surrender shall be
treated humanely and afforded treatment;
5. Relief and medical providers must be protected.
Section 4 of RA 9851
In case of non-international armed conflict, serious violations of
Art. 3, Geneva Conventions, any of the following acts
committed against persons taking no active part in the
hostilities, including members of the armed forces who have
laid down their arms and hors he combat:
1. Violence to life and persons;
2. Committing outrages upon personal dignity;
3. Taking hostages; and
4. The passing of sentences and carrying out of executions
(ELK) without previous judgment pronounces by a court,
affording all judicial guarantees which are generally
recognised as indispensable.
The effect of the Rome Statute
On November 1, 2011, the Rome Statute of the International
Criminal Court became binding on the Philippines and its
government with the ratification by the Philippine Senate in
August of that year.
A person may be liable under the Rome Statute for:
a. Genocide
b. Crimes Against Humanity
c. War crimes
d. Acts of Aggression. (TO TAKE EFFECT IN 2017)
Article 20, Rome Statute on the Ne bis in Idem: “No person
who has been tried by another country for conduct also
proscribed under Articles 6, 7, or 8 shall be tried by the ICC
with respect to the same conduct unless the proceedings in the
other court:
(a) Were for the purpose of shielding the person
concerned from criminal responsibility for crimes within the
jurisdiction of the Court; or
(b) Otherwise were not conducted independently or
impartially in accordance with the norms of due
process recognized by international law and were conducted in
a manner which, in the circumstances, was
inconsistent with an intent to bring the person concerned to justice.
Note that when a person is already prosecuted under RA 9851,
he can no longer be prosecuted before the ICC because ICC
can only acquire jurisdiction if the Philippine courts take
jurisdiction and here the applicable law is 9851.
Section 10, RA 9851
A superior shall be criminally responsible as a principal for
such crimes committed by subordinates under his/her effective
command and control, or effective authority and control as the
case may be, as a result of his/her failure to properly exercise
control over such subordinates, where:
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(a) That superior either knew or, owing to the
circumstances at the time, should have known that the
subordinates were committing or about to commit such
crimes;
(b) That superior failed to take all necessary and
reasonable measures within his/her power to prevent or
repress their commission or to submit the matter to the
competent authorities for investigation and
prosecution.
The superiors need not actually know of the crime as long as
they’re in a position to have known of the act and did not do
anything about it, they are liable. That is why when there is a
case against an erring policeman, the very first person to
investigate is the superior.
Liability of superiors for acts of subordinates
“Individual criminal responsibility”, Section 8, RA 9851
“Command responsibility” necessitates a chain of command.
(Yamashita case)
“Effective command and control” or “effective authority and
control” means the material ability to prevent and punish the
commission of offenses by subordinates.
“Superior” means:
1. a military commander or a person effectively acting as a
military commander: or
2. any other superior, in as much as the crimes arose from
activities within the effective authority and control of that
superior.
Are crimes under RA 9851 absorbed in Rebellion?
Acts committed in violation in violation of RA 9851, even in the
context of armed conflict of a non-international character and in
view of the declarations of the CCP and the NDF, cannot be
deemed to be acts in connection with or in furtherance of
rebellion. Hence, they are not absorbed.
(Obiter of SC Justice Leonen in Ocampo v. Abando, GR No.
176830, 185587, 185636, 190005, Feb. 11, 2014)
IHL and the rules and principles contained in the Geneva
Conventions are largely regarded in the international sphere as
having the character of general or customary international law
given the fundamental nature of the rules and “because they
constitute in transgressible principles of international
customary law”
Genocide - means any of the following acts with intent to
destroy, in whole or in part, a national, ethnic, racial, religious,
social, or any other similar stable and permanent group (not
political or enemies of the State). Here it is not necessary that
there are actual killings, as long as there is intention to
extinguish or obliterate a particular group. e.g. there is a
command of forced ligation or vasectomy of the Badjao group
of people.
Crimes Against Humanity - means any of the acts
enumerated in the law when committed as part of a
widespread or systematic attack directed against any civilian
population, with knowledge or the attack.
These crimes may now be prosecuted domestically and
may be punished under RA 9851.
RA 10353: The Anti-Enforced or Involuntary
Disappearance Act
(compare this with arbitrary detention which is also committed
by State Agents)
Agents of the State refer to persons who, by direct provision
of the law, popular election or appointment by competent
authority, shall take part int he performance of public functions
in the government or shall perform in the government or in any
of its branches public duties as an employee, agent or
subordinate official, or any rank or class.
These State agents punished under this Act need not be police
officers or an officer who holds a person under his custody,
they can also be elected officials, unlike in Arbitrary detention.
Enforced or Involuntary disappearance refers to the arrest,
detention, abduction, or any other form of deprivation of liberty
committed by agents of the State or by persons, or groups of
persons acting with the authorization, support or acquiescence
of the State, followed by refusal to acknowledge the
depreciation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which places such
person outside the protection of the law.
So in the case of that Korean brought to Camp Krame, if there
was a refusal to acknowledge that the Korean was brought to
Camp Krame, there is violation under this Act.
Section 5.
An "Order of Battle" or any order of similar nature, official or
otherwise, from a superior officer or a public authority causing
the commission of enforced or involuntary disappearance is
unlawful and cannot be invoked as a justifying or exempting
circumstance.
Any person receiving such an order shall have the right to
disobey it.
Liability of the Commanding Officer or Superior.
The immediate commanding officer of the unit concerned of
the AFP or the immediate senior official of the PNP and other
LEAs shall be held liable as a principal to the crime of enforced
or involuntary disappearance for acts committed by him that
shall have led, assisted, abetted, or allowed, whether directly
or indirectly, the commission thereof by his subordinates.
If such CO has knowledge of or should have known that EID
is being committed, or has been committed by subordinates or
by others within the officer’s AOR and did not take preventive
or coercive action either before, during, or immediately after its
commission, when he has the authority to prevent or
investigate allegations of EID but failed to prevent or
investigate such allegations, whether deliberately or due to
negligence, shall also be held liable as principal.
Section 16.
Government officials and personnel who are found to be
perpetrators of or participants in any manner in the commission
of enforced or involuntary disappearance as a result of a
preliminary investigation conducted for that purpose shall be
preventively suspended or summarily dismissed from the
service, depending on the strength of the evidence so
presented and gathered in the said preliminary investigation or
as may be recommended by the investigating authority.
Section 17. Civil Liability. –The act of enforced or involuntary
disappearance shall render its perpetrators and the State
agencies which organized, acquiesced in or tolerated such
disappearance liable under civil law.
So this provision constitutes an express consent by the State
to be held civilly liable.
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Section 18. Independent Liability. –The criminal liability of committed.

the offender under this Act shall be independent of or without
prejudice to the prosecution and conviction of the said offender But here comes DeLima with a salary grade of more than 27,
for any violation of Republic Act No. 7438, otherwise known as charged with the violation under 9165 which specifically states
"An Act Defining Certain Rights of Person Arrested, Detained that any violation under this law shall always be prosecuted
or Under Custodial Investigation as well as the Duties of the with the RTC. And so, even if her salary grade is more than 27
Arresting, Detaining, and Investigating Officers, and Providing the case shall be under the jurisdiction of the RTC. But if she is
Penalties for Violations Thereof’; Republic Act No. 9745, charged for example of another crime like Qualified Bribery, it
otherwise known as "An Act Penalizing Torture and Other will always go to the Sandiganbayan.
Cruel, Inhuman and Degrading Treatment or Punishment, and
Prescribing Penalties Therefor"; and applicable provisions of But if the law itself punishing the act says that you can only file
the Revised Penal Code. this in this court, then it should be filed in this court. For drugs,
RA 9165, it says it can only be prosecuted before the RTC.
Section 20. Exemption from Prosecution. – Any offender That’s why instead of the case going to Sandiganbayan, it
who volunteers information that leads to the discovery of the should go back to the RTC because it’s a drug case. That’s RA
victim of enforced or involuntary disappearance or the 3019 in relation to drugs.
prosecution of the offenders without the victim being found
shall be exempt from any criminal and/or civil liability under this ANTI-MONEY LAUNDERING ACT (RA 9160)
Act: Provided, That said offender does not appear to be the
most guilty.
ANTI-MONEY LAUNDERING ACT (AMLA)
Section 21. Continuing Offense. – An act constituting
enforced or involuntary disappearance shall be considered a When we say anti-money laundering, it means that there is
continuing offense as long as the perpetrators continue to dirty money, and we “launder” to make it clean. The “launder”
conceal the fate and whereabouts of the disappeared person is actually the bank. We go to a transaction to cleanse the
and such circumstances have not been determined with money. How do we determine if there is dirty money? We
certainty. determine it as so if it proceeds from a predicate crime
(practically all crimes in the Philippines).
Section 22. Statue of Limitations Exemption. – The
prosecution of persons responsible for enforced or involuntary Predicate Crimes:
disappearance shall not prescribe unless the victim surfaces
alive. In which case, the prescriptive period shall be twenty-five 1. Kidnapping for ransom;
(25) years from the date of such reappearance. 2. RA 9165;
3. RA 3019;
Section 23. Special Amnesty Law Exclusion. – Persons who 4. Plunder;
are changed with and/or guilty of the act of enforced or 5. Robbery and extortion;
involuntary disappearance shall not benefit from any special 6. Jueteng and Masiao under PD 1602;
amnesty law or other similar executive measures that shall 7. Piracy;
exempt them from any penal proceedings or sanctions. 8. Qualified Theft;
9. Swindling;
Section 24. State Protection – The State, through its 10. Smuggling;
appropriate agencies, shall ensure the safety of all persons 11. Electronic Commerce Act violations;
involved in the search, investigation and prosecution of 12. Hijacking; destructive arson and murder;
enforced or involuntary disappearance including, but not 13. Terrorism and conspiracy to commit terrorism;
limited to, the victims, their families, complainants, witnesses, 14. Financing of terrorism;
legal counsel and representatives of human rights 15. Bribery and Corruption;
organizations and media. They shall likewise be protected from 16. Frauds and Illegal Exactions and Transactions;
any intimidation or reprisal. 17. Malversation;
18. Forgeries and Counterfeiting;
19. Trafficking in Persons;
SIDE NOTE: DISCUSSION ON THE CASE OF DELIMA 20. Violations of the Forestry Code;
De Lima has a salary grade of 30 or 31, and she was charged 21. Violations of the Fisheries Code;
of a crime under the Dangerous Drugs Law and as discussed 22. Violations of the PH Mining Act of 1995;
earlier we said that if a crime is punished under RA 3019, the 23. Violations of the Wildlife Act;
one who will conduct the Preliminary Investigation is exclusive 24. Violations of the Caves Management Act;
to the Ombudsman but if it relates to other crimes, the other 25. Carnapping;
prosecuting agencies of the government may conduct that 26. Violations of the Firearms Law;
preliminary investigation. Since the charges against DeLima 27. Anti-Fencing;
was for drugs and not under RA 3019, therefore the DOJ can 28. Migrant Workers and Overseas Filipinos Act;
conduct the PI. 29. Violations of the Intellectual Property Code;
30. Violations of the Anti-Photo and Video Voyeurism Act;
But note here that once a case in flied in court, it does not 31. Violations of the Anti-Child Pornography Act;
matter anymore on whether the crime is committed and 32. Child Abuse;
punishable under RA 3019 or not because once filed the filing 33. Fraudulent practices under SEC; and
will not depend anymore on the crime committed but rather on 34. Felonies or offenses of a similar nature that are
the salary grade. Thus, regardless of the crime, if the salary punishable in other countries.
grade is more than 27 it should be heard by the
Sandiganbayan, if 26 below it should go to the regular courts
whether RTC or MTC depending on the penalty of the crimes

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Of the enumeration of predicate crimes (including enumeration
of the covered persons) made by Congress, there is one that
they forgot to include: money coming from the casinos.
So, it happened that in the case involving Bank of Bangladesh,
the money was not laundered through the banks, insurance
companies, or what have you, but through the casinos – at a
loss! It was transacted through the casino at a loss. He would
play and lose at the casino, and the casino wouldn’t mind
because there is always gain on the part of the casino. What
was important was that even if it was at a loss, when it came
out it was already clean. And when it was already clean, it was
coursed through RCBC, and he can now get it from RCBC
because it’s clean coming from the casino.
How committed:
By doing any of the following, knowing that any monetary
instrument or property involves, or relates to the proceeds of
any unlawful activity:
(a) transacts said monetary instrument or property;
(b) converts, transfers, disposes of, moves, acquires,
possesses or uses said monetary instrument or property;
(c) conceals or disguises the true nature, source, location,
disposition, movement or ownership of or rights with
respect to said monetary instrument or property;
(d) attempts or conspires to commit money laundering
offenses referred to in paragraphs (a), (b) or (c);
(e) aids, abets, assists in or counsels the commission of the
money laundering offenses referred to in paragraphs (a),
(b) or (c) above; and
(f) performs or fails to perform any act as a result of which he
facilitates the offense of money laundering referred to in
paragraphs (a), (b) or (c) above.
Money laundering is also committed by any covered person
who, knowing that a covered or suspicious transaction is
required under this Act to be reported to the Anti-Money
Laundering Council (AMLC), fails to do so.
These acts can only be committed by certain covered persons.
The following covered persons have a duty under AMLA – the
duty to make a report to the AMLC when there is a suspicious
transaction. For example, your money in the bank is usually
only P5,000.00 maximum of P10,000.00, then you suddenly
have a P5M deposit. Automatically, especially if you’re a public
official, the report will be sent to AMLC and you will be
investigated. But it doesn’t always mean that you are doing
something illegal, because for all we know you might have just
sold a parcel of land or won the lottery, but there will be like an
“alarm signal” that will alert AMLC.
Now, AMLA makes it clear that lawyers and accountants are
not covered. Why? Because of the privileged communication
rule. They could not be required to report to the AMLC any
suspicious transactions involving their clients. So, if you are the
lawyer, and your client used to give you only P20,000.00. Now,
he is in the business of buying islands. You, as the lawyer and
even if there is a suspicious transaction, are not required to
report that transaction.
Covered Persons:
Covered persons shall exclude lawyers and accountants
(authorized to practice in the Philippines) acting as
independent legal professionals in relation to information
concerning their clients or where disclosure of information
would compromise client confidences or the attorney-client.
(6) company service providers: (i) acting as a formation agent
of juridical persons; (ii) acting as director or corporate secretary
of a company, a partner of a partnership, or a similar position;
(iii) providing a registered office, business address or
accommodation, correspondence or administrative address for
acting as a nominee shareholder for another person; and (7)
persons: (i) managing of client money, securities or assets; (ii)
management of bank, savings or securities accounts; (iii)
organization of contributions for the creation, operation or
management of companies; and (iv) creation, operation or
management of juridical persons or arrangements, and buying
and selling business entities.
It has been said that the way to hurt these AMLA violators is
not to imprison them but to forfeit the dirty money.
Civil Forfeiture
Upon determination by the AMLC that probable cause exists
that any monetary instrument or property is in any way related
to an unlawful activity as defined in Section 3(i) or a money
laundering offense under Section 4 hereof, the AMLC shall file
with the appropriate court through the Office of the Solicitor
General, a verified ex parte petition for forfeiture, and the Rules
of Court on Civil Forfeiture shall apply.
Forfeiture is done by the AMLC by petition to the Court of
Appeals. Like in the Binay case, the court will first issue a
freeze order so that like Binay, he cannot anymore withdraw
from his 200 accounts because they were frozen.
Who are members of the AMLC? It shall be composed of the
Governor of the Bangko Sentral ng Pilipinas as chairman, the
Commissioner of the Insurance Commission and the Chairman
of the Securities and Exchange Commission as members.
(And practically all agencies that has regulatory powers over
financial businesses)
ANTI-CATTLE RUSTLING LAW (PD 533)
Large cattle shall include the cow, carabao, horse, mule, ass,
or other domesticated member of the bovine family.
Cattle rustling is the taking away by any means, method or
scheme, without the consent of the owner/raiser, of any of the
above-mentioned animals whether or not for profit or gain, or
whether committed with or without violence against or
intimidation of any person or force upon things. It includes the
killing of large cattle, or taking its meat or hide without the
consent of the owner/raiser.
In cattle rustling, intent to gain is not required. But in fencing
and carnapping, it is required. There was a question in the Bar
some two or so years ago:
Case Study
Out of anger that his crops were damaged by the neighbor’s
cow, Juan killed the cow. He then gave the meat to his friends,
who cooked the meat. Upon their invitation, he partook of the
cooked beef. Is this malicious mischief or theft?
Was there cattle rustling? Yes, because the existence of intent
to gain does not matter. The mere fact that there was killing of
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cattle without the consent of the owner/raiser constitutes cattle
rustling.
Presumption of Cattle Rustling
Section 7. Every person having in his possession, control or
custody of large cattle shall, upon demand by competent
authorities, exhibit the documents prescribed 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.
So, you must have the papers, otherwise, you are presumed to
be in the “illegal possession of cattle.” Cattles are to be
registered. They have numbers as they are marked (Pig is not
a member of the bovine family). See Section 3.
Duties
Section 3. Duty of owner/raiser to register. The owner/raiser
shall, before the large cattle belonging to him shall attain the
age of six months, register the same with the office of the
city/municipal treasurer where such large cattle are raised. The
city/municipality concerned may impose and collect the fees
authorized by existing laws for such registration and the
issuance of a certificate of ownership to the owner/raiser.
Failure to register the cattle, there are penalties imposed by
the law but not the same as taking the cow. These are aside
from penalties that are monetary in nature imposed by the
municipalities/cities under their own ordinances. If you do not
register, there is already a presumption that you are a cattle
rustler.
Pil-ey v. People, GR No. 154941, July 9, 2007
 Elements: (1) large cattle is taken; (2) it belongs to
another; (3) the taking is done without the consent of
the owner or raiser; (4) the taking is done by any
means, method or scheme; (5) the taking is done with
or without intent to gain; and (6) the taking is
accomplished with or without violence or intimidation
against persons or force upon things.
 Considering that the gravamen of the crime is the
taking or killing of large cattle or taking its meat or
hide without the consent of the owner/raiser,
conviction for the same need only be supported by
the fact of taking without the cattle owner’s consent.
Permits and Clearances
Section 5. Permit to buy and sell large cattle. No person or
entity shall engage in the business of buy and sell of large
cattle without first securing a permit from the Provincial
Commander of the province where it shall conduct such
business and the city/municipal treasurer of the place of
residence of such person or entity. The permit shall only be
valid in such province.
Section 6. Clearance for shipment of large cattle. Any
person or entity desiring to ship or transport large cattle, its
hides, or meat, from one province to another shall secure a
permit for such purpose from the Provincial Commander of the
province where the large cattle is registered. Before issuance
of the permit herein prescribed, the Provincial Commander
shall require the submission of the certificate of ownership as
prescribed in Section 3 hereof, a certification from the
Provincial Veterinarian to the effect that such large cattle, hides
or meat are free from any disease; and such other documents
or records as may be necessary. Shipment of large cattle, its
hides or meat from one city/municipality to another within the
same province may be done upon securing permit from the
city/municipal treasurer of the place of origin.
SOME OTHER POINTS FOR MOCK BAR:
I suggest you read Canturia because this is now more or less
the rule. But it’s Robbery with Rape, not Robbery with
Homicide and Rape.
When the rape and homicide co-exist in the commission of the
robbery, Robbery and Homicide shall apply because Article
294 paragraph 1 is Robbery with Homicide. The rape is to be
considered as aggravating.
If the rape is done today, tomorrow, and day after tomorrow,
there will be three rapes. If it is done in the same day twice,
separately, then it will still be two counts. Two counts of Rape.
Because these are distinguishable distinct rapes. However, in
one case, the girl was raped several times for each day. She
could not remember how many times. She was made like a
sex slave. SC said maybe because it could not be determined
anymore, we will look at the criminal intent – which is to abuse
her. So for one day, it was counted only as one.
What if there is rape committed by many modes of commission
– sexual abuse and sexual intercourse? That’s only one rape.
But if committed hours apart, then they are now distinguishable
and they are counted separately. It is only if it is done together
that the court now looks at the intent, which may lead us to
conclude that there is only one count of rape.
Regarding the exam relating to Treachery: Treachery, as a
general rule, is aggravating only in crimes against persons not
against property. But there is an exception in the case of
robbery with homicide, because it is classified as a crime
against property. But even if it is so, treachery can still be
appreciated as aggravating.
Question: How about reaching into the house but you did not
really enter the house, like you reach in with your hand and
take something. Is that theft? Yes. The breaking of the window
should be made for the purpose of entrance. That is true only
in robbery in an inhabited place, because if it is, let us say, a
warehouse – it is not inhabited. It is just a bodega with no
people living there. Then, without entering, you broke the wall,
and took something, maybe like a receptacle or something
else. You broke the wall not to enter the place, but to get
something. This is uninhabited place. This time, it will be
robbery.
There’s a difference because in inhabited, the breaking of the
wall/door must be for the purpose of entrance. But in
uninhabited, provided that there is a breaking of door, wall,
window, etc., it is automatically robbery even if it’s not for the
purpose of entering. So if it’s inhabited and you entered without
breaking anything, that will be theft.
Now, if you entered through the door and you heard the owner
coming out, then you broke the wall in order to exit, that will not
be robbery because the breaking must be for the purpose of
entering.
Entrance with the use of craft or disguise: i.e., masquerading
as an employee of Sky Cable or VECO and the owner let you
in (it’s not against the will of the owner), and you stole
something, that is robbery.
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Entered through the door with the use of a key: the key was a
false key, robbery. If through the door with the use of a key, not
a false key, genuine but you got it because you stole it from the
owner, robbery. A genuine key that is lost, stolen or etc. will
become a false key.

Question: Three people gang raped a victim. Each of them

raped. How many counts of rape? Three. Who is liable for the
three rapes? All of them by reason of the conspiracy. What if it
was only A who raped the victim thrice? There are still three
counts of rape.

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