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Elements and Notes in Criminal Law Book II by RENE CALLANTA TITLE NINE CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
Crimes against liberty 1. 2. 3. 4. 5. 6. 7. 8. Kidnapping and serious illegal detention (Art. 267); Slight illegal detention (Art. 268); Unlawful arrest (Art. 269); Kidnapping and failure to return a minor (Art. 270); Inducing a minor to abandon his home (Art. 271); Slavery (Art. 272); Exploitation of child labor (Art. 273); Services rendered under compulsion in payment of debts (Art. 274).
Crimes against security 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Abandonment of persons in danger and abandonment of one's own victim (Art. 275); Abandoning a minor (Art. 276); Abandonment of minor by person entrusted with his custody; indifference of parents (Art. 277); Exploitation of minors (Art. 278); Trespass to dwelling (Art. 280); Other forms of trespass (Art. 281); Grave threats (Art. 282); Light threats (Art. 283); Other light threats (Art. 285); Grave coercions (Art. 286); Light coercions (Art. 287); Other similar coercions (Art. 288); Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Art. 289); Discovering secrets through seizure of correspondence (Art. 290); Revealing secrets with abus of office (Art. 291); Revealing of industrial secrets (Art. 292).
Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION
ELEMENTS: 1.Offender is a private individual 2.He kidnaps or detains another, or in any other manner deprives the latter of his liberty 3.The act of detention or kidnapping must be illegal
4. That in the commission of the offense, any of the following circumstances are present
(becomes serious) a. b. that the kidnapping/detention lasts for more than 3 days that it is committed simulating public authority
c. that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made, or that the person kidnapped or detained is a minor (except if parent is the offender), female or a public officer
Note: When death penalty is imposed: a. If kidnapping is committed for the purpose of extorting ransom either from the victim or from any other person even if none of the aforementioned are present in the commission of the offense (even if none of the circumstances are present) b. When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts The essence of the offense is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. There must be indubitable proof that the actual intent of the malefactor was to deprive the offended party of liberty. The restraint however need not be permanent. (People vs. Godoy, 250 SCRA 676). Ortega Notes:
When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. Illustration: If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention. In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another. When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another. The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. But if a person is transported not for ransom, the crime can be illegal detention. Usually, the offended party is brought to a place other than his own, to detain him there. When one thinks of kidnapping, it is not only that of transporting one person from one place to another. One also has to think of the criminal intent. Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
Serious illegal detention – If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion – If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to take home the woman from class. But while the woman is in his car, he drove the woman to a far place and told the woman to marry him. On the way, the offender had repeatedly touched the private parts of the woman. It was held that the act of the offender of touching the private parts of the woman could not be considered as lewd designs because he was willing to marry the offended party. The Supreme Court ruled that when it is a suitor who could possibly marry the woman, merely kissing the woman or touching her private parts to “compel” her to agree to the marriage, such cannot be characterized as lewd design. It is considered merely as the “passion of a lover”. But if the man is already married, you cannot consider that as legitimate but immoral and definitely amounts to lewd design. If a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion. Illustration: Tom Cruz invited Nicole Chizmacks for a snack. They drove along Roxas Boulevard, along the Coastal Road and to Cavite. The woman was already crying and wanted to be brought home. Tom imposed the condition that Nicole should first marry him. Nicole found this as, simply, a mission impossible. The crime committed in this case is grave coercion. But if after they drove to Cavite, the suitor placed the woman in a house and would not let her out until she agrees to marry him, the crime would be serious illegal detention. If the victim is a woman or a public officer, the detention is always serious – no matter how short the period of detention is. Distinction between illegal detention and arbitrary detention Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives another of his liberty. Arbitrary detention is committed by a public officer who detains a person without legal grounds. The penalty for kidnapping is higher than for forcible abduction. This is wrong because if the offender knew about this, he would perform lascivious acts upon the woman and be charged only for forcible abduction instead of kidnapping or illegal detention. He thereby benefits from this absurdity, which arose when Congress amended Article 267, increasing the penalty thereof, without amending Article 342 on forcible abduction. Article 267 has been modified by Republic Act No. 7659 in the following respects: (1) (2) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. This amendment brings about a composite crime of kidnapping with homicide when it is the victim of the kidnapping who was killed, or dies as a consequence of the detention and, thus, only one penalty is imposed which is death. Article 48, on complex crimes, does not govern in this case. But Article 48 will govern if any other person is killed aside, because the provision specifically refers to “victim”. Accordingly, the rulings in cases of People v. Parulan, People v. Ging Sam, and other similar cases where the
If the victim was raped. the offended party was raped. thus. In a way. the Supreme Court stressed that the crime is serious illegal detention if the purpose was to deprive the offended party of her liberty. In People v. be it right or wrong. and if the victim was raped. Also. This is so because there is no complex crime of serious illegal detention with rape since the illegal detention was not a necessary means to the commission of rape. It does not matter whether the purpose of the kidnapping was to kill the victim or not. And if in the course of the illegal detention. and each of the other rapes would constitute distinct counts of rape. or died as a consequence of the kidnapping or detention. (People vs. 131 SCRA 1. the amendment depreciated the seriousness of the rape because no matter how many times the victim was raped. as long as the victim was killed. the complex crime of forcible abduction with rape would be committed. This would not be the consequence if rape were a separate crime from kidnapping because each act of rape would be a distinct count. there is deprivation of liberty but not for any for the purposes enumerated above. The law classifies . Bacalso. If the deprivation of liberty is to take away the victim to satisfy the lewd design of the offender. the offender should not have taken the victim with lewd designs as otherwise the crime would be forcible abduction. If the seizure or deprivation of liberty is only to compel the victim to perform an act. there will only be one kidnapping with rape. 7659 making rape a qualifying circumstance in the crime of kidnapping and serious illegal detention.172 Elements and Notes in Criminal Law Book II by RENE CALLANTA accused were convicted for the complex crimes of kidnapping with murder have become academic. In People v. the same is regarded as a single indivisible offense as in fact the law punishes such acts with only a single penalty. the crime committed would only be grave coercion. It is for the purpose of extorting ransom from the victim or from any other person. decided on October 29. There is no more separate crime of kidnapping and murder if the victim was kidnapped not for the purpose of killing her. covers all forms of killing whether in the nature of murder or otherwise. This was the ruling in the case of People v. regardless of the number of times that the victim was raped. 1993. In the penultimate paragraph of Article 267. 4. the inquiry would. Palattao notes: When the person is deprived of his liberty or is seized and forcibly taken to another place. 3. If the taking was forcible abduction. If the seizure is only to facilitate the killing of the victim the crime committed would either be homicide or murder and the crime of kidnapping is absorbed. this brings about the composite crime of kidnapping with rape. In the composite crime of kidnapping with homicide. Astorga. 283 SCRA 420). Lactao. 2. If the seizure of the victim is solely to deprive him of his liberty. when the victim of the kidnapping and serious illegal detention was subjected to torture and sustained physical injuries. Being a composite crime. With the amendment by Republic Act No. not a complex crime. the term “homicide” is used in the generic sense and. the crime would only be forcible abduction. a separate crime of rape would be committed. Bernal. Article 48 on complex crimes may not apply when serious illegal detention and rape are committed by the same offender. the appellants were held guilty of separate crimes of serious illegal detention and of multiple rapes. be what is the purpose of the offender in taking him or her away: 1. The offender will be charged for the composite crime of serious illegal detention with rape as a single indivisible offense. there would only be one crime of forcible abduction with rape. and the woman was raped several times. a composite crime of kidnapping with physical injuries is committed. the crime is illegal detention. However for the crime to be kidnapping with rape. the jurisprudence is superseded to the effect that the rape should be a distinct crime.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
the crime committed by the offender as serious illegal detention even if none of the circumstances to make it serious is present in the commission of the crime. In this particular mode of committing the crime of serious illegal detention, demand for ransom is an indispensable element. (People vs. Bustamante, G. R. No. 66427, Dec. 4, 1991) SANDOVAL Notes: If the victim was not kidnapped or taken away but was restrained and deprived of his liberty, like in the case of a hostage incident where the accused, who was one of the occupants of the house, grabbed a child, poked a knife on the latter’s neck, called for media people and demanded a vehicle from the authorities which he could use in escaping, as it turned out that there was an unserved arrest warrant against him, the proper charge is Serious Illegal Detention (without kidnapping anymore) but likewise under Article 267 of the Revised Penal Code. Where after taking the victim with her car, the accused called the house of the victim asking for ransom but upon going to their safehouse saw several police cars chasing them, prompting them to kill their victim inside the car, there were two crime committed – Kidnapping for Ransom and Murder, not a complex crime of Kidnapping with Murder as she was not taken or carried away to be killed, killing being an afterthought . (People vs. Evanoria, 209 SCRA 577).
Article 268 SLIGHT ILLEGAL DETENTION
ELEMENTS: 1. Offender is a private person 2. He kidnaps or detains another or in any other maner deprives him pof his liberty / furnished place for the perpetuation of the crime 3. That the act of detention or kidnapping must be illegal
4. That the crime is committed without the attendant of any of the circumstances enumerated in Art 267 Note: Privileged mitigating circumstances: If the offender: a. voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention b. c. without having attained the purpose intended and before the institution of criminal proceedings against him
One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender. When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious. If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
One who furnishes the place where the offended party is being held generally acts as an accomplice. But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death. What is ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. The definition of ransom under the Lindberg law of the U.S. has been adopted in our jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor and releases the latter only upon the payment of the debt, such payment of the debt, which was made a condition for the release is ransom, under this article. In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken away with hands tied behind his back and was not heard from for six years. Supreme Court reversed the trial court ruling that the men accused were guilty of kidnapping with murder. The crime is only slight illegal detention under Article 268, aggravated by a band, since none of the circumstances in Article 267 has been proved beyond a reasonable doubt. The fact that the victim has been missing for six years raises a presumption of death, but from this disputable presumption of death, it should not be further presumed that the persons who were last seen with the absentee is responsible for his disappearance.
Article 269 UNLAWFUL ARREST
ELEMENTS: 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is not authorized by law or there is no reasonable ground therefor Notes: 1. Offender is any person, so either a public officer or private individual The offender in this article can be a private individual or public officer. In the latter case, the offender, being a public officer, has the authority to arrest and detain a person, but the arrest is made without legal grounds. For him to be punished under this article, the public officer must make the arrest and detention without authority to do so; or without acting in his official capacity.
This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.
Refers to warrantless arrests
If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. Note that this felony may also be committed by public officers.
In art 125, the detention is for some legal ground while here, the detention is not authorized by law
In art 125, the crime pertains to failure to deliver the person to the proper judicial authority within the prescribed period while here, the arrest is not authorized by law
Article 270 KIDNAPPING AND FAILURE TO RETURN A MINOR
ELEMENTS: 1. That the offender is entrusted with the custody of a minor person (whether over or under 7 but less than 18 yrs old) 2. That he deliberately fails to restore the said minor to his parents
If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. In People v. Generosa, it was held that deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). In People v. Mendoza, where a minor child was taken by the accused without the knowledge and consent of his parents, it was held that the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270.
Article 271 INDUCING A MINOR TO ABANDON HIS HOME
ELEMENTS: 1. That the minor (whether over or under 7) is living in the home of his parents or guardians or the person entrusted with his custody 2. Notes: The inducement must be actually done with malice and a determined will to cause damage. (People vs. Paalam, C.A., O.G. 8267-8268). But where the victims abandoned their respective homes out of an irresponsible spirit of restlessness and adventure, the crime is not committed. 1. 2. Minor should not leave his home of his own free will Mitigating if by father or mother That the offender induces a minor to abandon such home
. That the offender purchases. Article 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT ELEMENTS: 1. 3. That the purpose of the offender is to enslave such human being. 2. That the offender retains a minor in his service. no crime is committed. the offender purchases and sells the same. 2. the crime is white slave trade under Article 341. Slavery is the treatment of a human being as a mere property. That it is against the will of the minor. 2. Article 273 EXPLOITION OF CHILD LABOR ELEMENTS: 1. This arises when the custody of the minor is awarded by the court to one of them after they have separated. the penalty is higher This is distinguished from illegal detention by the purpose.176 Elements and Notes in Criminal Law Book II by RENE CALLANTA The article also punishes the father or mother who commits the act penalized under the law. That it is against the debtor’s will. guardian or person entrusted with the custody of such minor. either as household servant or farm laborer. kidnaps or detains a human being. Sells. Involuntary servitude or service. Article 272 SLAVERY ELEMENTS: 1. If the minor agrees to serve the accused. 3. no distinction is made whether the offended is a minor or an adult. In this article. Note: Qualifying circumstance – if the purpose of the offender is to assign the offended party to some immoral traffic (prostitution). If the purpose of the kidnapping or detention is to enslave the offended party. slavery is committed. The person is reduced to the level of an ordinary animal. The other parent who induces the minor to abandon his home is covered by this article. stripped of dignity and human rights. The crime is slavery if the offender is not engaged in the business of prostitution. That it is under the pretext of reimbursing himself of a debt incurred by an ascendant. That the offender compels a debtor to work for him. That the purpose is to require or enforce the payment of a debt. even if the service is rendered to pay an ascendant’s alleged debt. If he is. a mere chattel with material value capable of pecuniary estimation and for which reason.
As long as the victim was injured because of the accident caused by the offender. If what happened was an accident at first. 4. The accused fails to render assistance. That place is not inhabited. you will be liable under Article 275. unless such omission shall constitute a more serious offense Elements a. there would be no liability pursuant to Article 12 (4) of the RPC – damnum absque injuria. the offender is liable only when he can render such assistance without detriment to himself.177 Elements and Notes in Criminal Law Book II by RENE CALLANTA CRIMES AGAINST SECURITY Article 275 ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONE’S OWN VICTIM Acts punishable: 1. Notes: 1. deliberate. 2. By failing to render assistance to any person whom the offender finds in an inhabited place wounded or in danger of dying. unless such omission shall constitute a more serious offense. Here. But if you abandon your victim. That the child is under seven years of age. The accused found there a person wounded or in danger of dying. the offender must have abandoned the child with deliberate intent. d. 3. the character of the place is immaterial. the place may still be uninhabited if possibility of receiving assistance is remote. b. abandonment will not bring about this crime. when he can render such assistance without detriment to himself. That he has no intent to kill the child when the latter is abandoned. By failing to help or render assistance to another whom the offender has accidentally wounded or injured 3. permanent In order to hold one criminally liable under this article. Even if there are many houses around. or by failing to take him to a safe place Under the first act. there is an obligation to render assistance only if he is found in an uninhabited place. 2. Where the person is already wounded and already in danger of dying. By failing to deliver a child. the offender would be liable for abandonment if he would not render assistance to the victim. If the mortally wounded. That the offender has the custody of a child. dying person is found in a place not uninhabited in legal contemplation. . under 7 whom the offender has found abandoned. An uninhabited place is determined by possibility of person receiving assistance from another. to the authorities or to his family. That he abandons such child. The purpose of the offender must solely be avoidance of the obligation of taking care of the minor. The accused can render assistance without detriment to himself. c. Conscious. Article 276 ABANDONING A MINOR ELEMENTS: 1.
By delivering a child under 16 gratuitously to any person following any of the callings enumerated in par 2 or to any habitual vagrant or beggar. or if the one who entrusted such child to the offender is absent. b. If the life of the minor was in danger because of the abandonment Article 277 ABANDONMENT OF MINOR BY PERSON CUSTODY. That he delivers said minor to a public institution or other persons. guardian. teacher or person entrusted in any capacity with the care of such child . That he neglects his children by not giving them education. the offender being an ascendant. or wild-animal tamer or circus manager or engaged in a similar calling 3. physical strength or contortion. When the death of the minor resulted from such abandonment b. That his station in life requires such education and his financial condition permits it. That the one who entrusted such child to the offender has not consented to such act. “Indifference of parents” – while they are financially capable of supporting the needs of their children.178 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. By neglecting his (offender’s) children by not giving them education which their station in life requires and financial condition permits Elements: a. Article 278 EXPLOITATION OF MINORS Acts punished: 1. By causing any boy or girl under 16 to perform any dangerous feat of balancing. 2. diver. Qualifying circumstances: a. they deliberately neglect to support the educational requirements of these children through plain irresponsibility caused by wrong social values. c. gymnast. INDIFFERENCE OF PARENTS Acts punished: ENTRUSTED WITH HIS 1. rope-walker. in the absence of that one. By employing children under 16 who are not the children or descendants of the offender in exhibitions of acrobat. That the offender has charged of the rearing or education of a minor. the offender being any person 2. That the offender is a parent. the proper authorities have not consented to it. b. the offender being engaged in any of said callings 4. By delivering a minor to a public institution or other persons w/o consent of the one who entrusted such minor to the care of the offender or. By employing any descendant under 12 in dangerous exhibitions enumerated in the next preceding paragraph. c. without the consent of the proper authorities Elements: a.
If the minor so employed would suffer some injuries as a result of a violation of Article 278. 1. That the offender is a private person. It is not necessary that it be the permanent dwelling of the person. guardians. It is not necessary that there be a breaking. As long as the employment is inimical – even though there is no physical risk – and detrimental to the child’s interest – against moral. unless the minor is less than 12 years old. Qualifying circumstance: if the offense is committed by means of violence or intimidation. 7610 (Special Protection of Children against Child Abuse. the penalty is higher. But the exploitation will be dealt with by Republic Act No.179 Elements and Notes in Criminal Law Book II by RENE CALLANTA 5. 7610. Because if the employer is an ascendant. At this age. Exploitation and Discrimination Act). 3. Notes: Dwelling – This is the place that a person inhabits. not 16 years old as in the Revised Penal Code. and mental development of the minor – the establishment will be closed. But remember Republic Act No. ADDITIONAL PENALTIES FOR OTHER OFFENSES: (279) Article 280 QUALIFIED TRESPASS TO DWELLING ELEMENTS: 1. hence. 2. It also includes a room where one resides as a boarder. That he enters the dwelling of another. curators or teachers to follow any person engaged in any of the callings mentioned in par 2 or to accompany any habitual vagrant or beggar. rope-walker. the crime is not committed. even though working for him is not against the will of the minor. a person’s room in a hotel may be considered a dwelling. The offender is engaged in a kind of business that would place the life or limb of the minor in danger. the minor is still growing. diver or wild-animal trainer or circus manager or to any habitual vagrant of beggar is made in consideration of any price. Nature of the Business – This involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. If the employer is an ascendant. By inducing any child under 16 to abandon the home of its ascendants. intellectual. that is presumed to be against the will of the occupant (example. entry through a window). . Article 279 provides that there would be additional criminal liability for the resulting felony. the age is lowered to 12 years. compensation or promise. the crime is committed. It applies to minors below 18 years old. So. physical. Article 278 has no application if minor is 16 years old and above. the penalty is higher 2. That such entrance is against the latter’s will. the law regards that he would look after the welfare and protection of the child. There must be an opposition to the entry of the accused If the entry is made by a way not intended for entry. Age – Must be below 16 years. the offender being any person Note: Qualifying Circumstance – if the delivery of the child to any person following any of the callings of acrobat. It includes the dependencies which have interior communication with the house. Below that age.
Violence or intimidation must. after having surreptitiously entered such dwelling. and (3) refusing to leave the dwelling when so requested by the owner thereof. But if the violence is employed immediately after the entrance without the consent of the owner of the house. (U. be anterior or coetaneous with the entrance and must not be posterior. 4. Mesina. the occupants or a third person b. then his entry shall now be considered to have been made without the express consent of the owner. 42 Phil. if the possession has been delivered to another by reason of contract or by a mere tolerance. Implied prohibition is present considering the situation – late at night and everyone’s asleep or entrance was made through the window “Against the will” -. or if there was no injury. Tayag. (People vs. prohibited or the prohibition is presumed. such as the existence of enmity or strained relations between the accused and the occupant. So. 75 Phil. If the purpose is shown. Our Supreme Court followed this view in People v. May be committed even by the owner (as against the actual occupant) Even if the house belonged to the accused. trespass is committed. violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 – (1) entering the dwelling against the will of the owner without judicial order. His ownership is no authority for him to place the law in his hands. trespass is committed. this is the crime If the purpose in entering the dwelling is not shown. purpose is to render some service to humanity or justice . Fraudulent entrance may constitute trespass. entrance is for the purpose of preventing harm to himself. the trespass yielding to the more serious crime. When there is no overt act of the crime intended to be committed. unjust vexation. (People vs. If there is also violence or intimidation. for as long as it is closed. provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made. vs. physical injuries. 21 Phil. the prohibition is presumed especially if the entry was done at the late hour of the night or at an unholy hour of the day. 615) 3. Not applicable to: a. it may be absorbed in the crime as in robbery with force upon things. breaking the door or glass of a window or door constitutes acts of violence. Prohibition is not necessary when violence or intimidation is employed by the offender On violence.180 Elements and Notes in Criminal Law Book II by RENE CALLANTA Lack of permission to enter a dwelling does not amount to prohibition. proof of prohibition to enter is no longer necessary. 69) Even if the door is not locked. 7. S. either expressly or impliedly. it is not necessary that the entry should be preceded by an express prohibition. 5. But if the purpose is not shown and while inside the dwelling he was found by the occupants. (2) searching papers or other effects found in such dwelling without the previous consent of the owner thereof.This means that the entrance is. In such a case. So. if he refuses to leave. 476) Distinction between qualified trespass to dwelling and violation of domicile Unlike qualified trespass to dwelling. his being the owner would not authorize him to enter the house against the will of the lawful occupant. Cuello Calon opines that violence may be committed not only against persons but also against things. 6. one who enters a building is not presumed to be trespasser until the owner tells him to leave the building. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. the crime committed will be trespass to dwelling and frustrated homicide. however. To prove that an entry is against the will of the occupant. De Peralta. one of whom was injured by him. Almeda.
By making such threat without the offender attaining his purpose 3. 2. That the prohibition to enter be manifest. even though not unlawful and the offender (Note: threat is with condition) Elements a. 8. a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will. 2. or upon that of the latter’s family. That the offender attains his purpose. 3. b. That the trespasser has not secured the permission of the owner or the caretaker thereof. That the entrance is made while either of them is uninhabited. honor or property that of his family of any wrong amounting to a crime and demanding money or imposing any other condition. or upon that of the latter’s family. That the offender enters the closed premises or the fenced estate of another. That there is a demand for money or that any other condition is imposed. of any wrong. even though not unlawful. Rule 113 of the Rules of Court. That the offender threatens another person with the infliction upon the latter’s person. That the offender threatens another person with the infliction upon the latter’s person. but the intention to kill came to his mind when he was being arrested by the occupants thereof. of any wrong. the threat not being subject to a condition (Note: threat is without condition) Elements a. By threatening another with the infliction upon his person. c. Medina case: when the accused entered the dwelling through the window. the crime of trespass to dwelling is a separate and distinct offense from frustrated homicide Article 281 OTHER FORMS OF TRESPASS ELEMENTS: 1. That such wrong amounts to a crime. THREATS and COERCIONS Article 282 GRAVE THREATS Acts punishable: 1. honor or property. honor or property or that of his family of any wrong amounting to a crime. place is a café. honor or property. tavern etc while open Pursuant to Section 6. By threatening another with the infliction upon his person. d. .181 Elements and Notes in Criminal Law Book II by RENE CALLANTA c. b. 4. he had no intent to kill any person inside. That such wrong amounts to a crime.
it is direct and personal. the crime is only other light threats under Article 285. thereby also taking rights to his person . The case falls under Article 282. hence. therefore. Art 284 bond for good behavior may be imposed (only in these offenses) Ortega Notes: Threat is a declaration of an intention or determination to injure another by the commission upon his person. anxiety and insecurity in the mind of the offended party. The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition. In coercion. in threat. That the threat is not subject to a condition Notes: Intimidation is an indispensable element in the crime of threat. But if the purpose is not attained. There is no condition involved. whether lawful or not. there is intent to gain. Frustrated – if not received by the person being threatened 3. honor or property or upon that of his family of some wrong which may or may not amount to a crime: (1) (2) Grave threats – when the wrong threatened to be inflicted amounts to a crime. It is done by threatening to commit the crime upon the person. the wrong or harm done is future and conditional. the intimidation is actual and immediate. the intimidation is future and conditional. it may be through an intermediary. Aggravating circumstances: if made in writing or thru a middleman 2. As to nature of intimidation – In robbery. The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation. In threat. honor or property. As to subject matter – Robbery refers to personal property. in threats. Distinction between threat and coercion: The essence of coercion is violence or intimidation. 1. But even if the harm intended is in the nature of a crime. and the offender shall have attained his purpose. intent to gain is not an essential element. threat may refer to the person. The very essence of threat is to sow fear. Light threats – if it does not amount to a crime. there is no futurity in the harm or wrong done. characterized by moral pressure that produces disquietude or alarm. the intimidation is personal. the issuer of the threat did not pursue the act. The case falls under Article 283. Distinction between threat and robbery: (1) (2) (3) (4) (5) As to intimidation – In robbery. In robbery. if made orally and in the heat of anger and after the oral threat. To constitute grave threats. So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. the penalty lower by two degrees is imposed. the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate. There is a promise of some future harm or injury. in threats. It is. the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. As to intent to gain – In robbery. honor and property of the offended party.182 Elements and Notes in Criminal Law Book II by RENE CALLANTA c.
If the sentenced prisoner fails to give the bond. There is intimidation done under a demand. Article 284 BOND FOR GOOD BEHAVIOR The law imposes the penalty of bond for good behavior only in case of grave and light threats. Person orally threatens another with harm not constituting a felony. That the offender makes a threat to commit a wrong. the harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed. that he has not attained his purpose In order to convict a person of the crime of light threats. . which is penalized under Article 356. or draw weapon in a quarrel unless in selfdefense.183 Elements and Notes in Criminal Law Book II by RENE CALLANTA by the opposition or resistance which the victim might offer. 2. without persisting in the idea involved in the threat. he will be banished by way of destierro to prevent him from carrying out his threat. Article 285 OTHER LIGHT THREATS ELEMENTS: 1. For example. he shall be detained for a period not exceeding six months if the crime for which he was convicted is classified as grave felony or for a period not exceeding thirty days if convicted for a light felony. In the heat of anger. even though not unlawful 4. Subsequent acts did not persist. person orally threatens another with some harm constituting a crime. Person shall threaten another with a weapon. the crime will be one of libel. 3. If the offender can not post the bond. 2. even though lawful. That there is a demand for money or that other condition is imposed. Article 283 LIGHT THREATS ELEMENTS: 1. in threat. Bond to keep peace under Article 35 is applicable to all cases and is treated as a distinct penalty. 3. That the offender has attained his purpose or. Bond of good behavior means the posting of bond on the part of the accused in order to guarantee that he will not molest the offended party. the danger to the victim is not instantly imminent nor the gain of the culprit immediate. It is in the nature of an additional penalty. That the wrong does not constitute a crime. If there is such a threat to make a slanderous or libelous publication against the offended party. Question & Answer Blackmailing constitutes what crime? It is a crime of light threat under Article 283 if there is no threat to publish any libelous or slanderous matter against the offended party. a person threatens to expose the affairs of married man if the latter does not give him money.
The violence employed in grave coercion must be immediate. actual. by means of violence. 2. Whether it is grave or light threats. or. there is no demand for money and the threat made is not planned or done with deliberate intent. Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime. No person shall take the law into his own hands. The intimidation is a means of committing robbery with violence or intimidation of persons. this is robbery and not grave coercion. that the restraint shall not be made under authority of law or in the exercise of any lawful right. even though some sort of violence or intimidation is employed. However. the crime is committed even in the absence of the person to whom the threat is directed. In the absence of actual or imminent force or violence. If the act prohibited was illegal. 2. threats or intimidation. whether it be right or wrong. by means of violence. That a person prevented another from doing something OR not to do something against his will. Illustration: If a man compels another to show the contents of the latter’s pockets. if some injuries are inflicted. Illustration: Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor. Acts punished 1. It may only give rise to threat or physical injuries. threats or intimidation. Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. be it right or wrong. That the person that restrained the will and liberty by another had not the authority of law or the right to do so. Preventing another. from doing something not prohibited by law. or (2) compel him to do something he does not want to do. the act of preventing by force must be made at the time the offended party was doing or was about to do the act to be prevented. If a person prohibits another to do an act because the act is a crime. the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. in other words. and takes the wallet. That the prevention or compulsion be effected by violence. of force as would produce intimidation and control the will. The physical violence is exerted to (1) prevent a person from doing something he wants to do. Article 286 GRAVE COERCIONS ELEMENTS: 1. when made in the heat of anger or which is a product of a spur of the moment are generally considered as light threats. The essence of coercion is an attack on individual liberty.184 Elements and Notes in Criminal Law Book II by RENE CALLANTA In the crime of light threats. whether it be wrong or not. . even if the obligation is long over due. In grave coercion. 3. in case of grave coercion where the offended party is being compelled to do something against his will. Compelling another. it would not give rise to grave coercion. coercion is not committed. he is not liable for grave coercion. So threats which would otherwise qualify as grave threats. or imminent. to do something against his will.
it is unjust vexation. 4. Article 288 OTHER SIMILAR COERCIONS ELEMENTS OF NO. So long as stoning is not serious and it is intended to annoy. It is distinguished from grave coercion under the first paragraph by the absence of violence. the will that moves it is the hand of the offender. but which unjustifiably annoys or vexes an innocent person amounts to light coercion. That he or such firm or corporation has employed laborers or employees. The essence of the crimes is the attack on individual liberty. not of men. although not productive of some physical or material harm would.185 Elements and Notes in Criminal Law Book II by RENE CALLANTA Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore – it approximates violence. 201 SCAR 405. 3. while the hand of the complainant sign. unjustifiably annoy or vex an innocent person. directly or indirectly. That the seizure of the thing be accomplished by means of violence or a display of material force producing intimidation. not of her own will. In Lee v. That the offender must be a creditor. 1 Forcing or compelling. 1. in the eyes of the law. the complainant ceases to exits as an independent personality and the person who employs force or intimidation is. any act committed without violence. According to the court. agent or officer of any association or corporation. Illustration: Persons stoning someone else’s house. the one acting. Article 287 LIGHT COERCIONS ELEMENTS: 1. it was held that neither the crime of threats nor coercion is committed although the accused. The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws. it was voluntary. a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed. That the offender is any person. . CA. UNJUST VEXATION In unjust vexation. and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him. It is different when a complainant refuses absolutely to act such an extent that she becomes a mere automaton and acts mechanically only. however. In this situation. As a punishable act. 2. but still. the complainant may have acted reluctantly and with hesitation. 2. That the purpose of the offender is to apply the same to the payment of the debt. It disturbs the peace of mind. unjust vexation should include any human conduct which. That he seizes anything belonging to his debtor.
2. wages of laborers must be paid in legal tender. Not applicable to parents with respect to minor children . 1. 248 of the Labor Code. registered labor DISCOVERY AND REVELATION OF SECRETS Article 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE ELEMENTS: 1. vouchers. or any other forms alleged to represent legal tender. That such employee or laborer does not expressly request that he be paid by means of tokens or objects. in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work 2. AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS ELEMENTS: 1. coupons. That offender is informed of the contents or the papers or letters seized. 2 Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines. Article 289 FORMATION. it is unlawful to pay the wages of the laborers in the form of promissory notes. 602. That he forces or compels. That the purpose is to discover the secrets of such another person. 3. or knowingly permits to be forced or compelled. unless expressly requested by such laborer or employee. That he seizes the papers or letters of another. 3. That the offender is a private individual or even a public officer not in the exercise of his official function. Under the Republic Act No. That the offender employs violence or threats. Accordingly. The act violates the privacy of communication. That those tokens or objects are other than the legal tender currency to the Philippines. Peaceful picketing is part of the freedom of speech and is not covered by this article. known as the Minimum Wage Law. 4. Preventing employees or laborers from joining any organization is punished under Art. any of his or its laborers or employees to purchase merchandise or commodities of any kind from his or from said firm or corporation. That the purpose is to organize. tokens. Notes: This is a crime against the security of one’s papers and effects. ELEMENTS OF NO. maintain or prevent coalitions of capital or labor. That the offender pays the wages due a laborer or employee employed by him by means of tokens or objects. directly or indirectly. strike of laborers or lockout of employees. 1. The purpose must be to discover its effects.186 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. MAINTENANCE. 2.
employee or servant shall always be liable. If. or persons entrusted with the custody of minors placed under their care or custody. the penalty is higher Distinction from estafa. the act should be considered as unjust vexation. If the matter pertains to the business of the employer or master. That he learns the secrets of his principal or master in such capacity. 40 OG. The ruling held that the wife should have applied for a search warrant. 5. 3. a spouse who rummaged and found love letters of husband to mistress does not commit this crime. Article 292 REVELATION OF INDUSTRIAL SECRETS ELEMENTS: 1. That the offender is a manager. but only to cause damage to another’s. That the prejudice is caused to the owner. 2. Contents need not be secret but purpose prevails According to Ortega. Article 291 REVEALING SECRETS WITH ABUSE OF OFFICE ELEMENTS: 1. the purpose was not to defraud. citing People v. In a case decided by the Supreme Court. That the offender reveals such secrets. damage to property. That the offender is a person in charge. employee or workman of a manufacturing or industrial establishment. The essence of this crime is that the offender learned of the secret in the course of his employment. That he reveals such secrets. An employee. 2. 3. 2. it would merit the qualification of damage to property. 35. Singh. If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want. 4. CA. damage is necessary and the agent. Suppl. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned. it would be estafa.187 Elements and Notes in Criminal Law Book II by RENE CALLANTA The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents. Reason: no one has a right to the personal privacy of another. on the other hand. and unjust vexation: If the act had been executed with intent of gain. it is not necessary that the offender should actually discover the contents of the letter. manager. but the letters are inadmissible in evidence because of unreasonable search and seizure. Reyes. or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. The teachers or other persons entrusted with the care and education of minors are included in the exceptions. employee or servant. Circumstances qualifying the offense: when the offender reveals contents of such papers or letters of another to a 3rd person. . 3. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter. and to the spouses with respect to the papers or letters of either of them. guardians. believes otherwise.
Altering boundaries or landmarks (Art. 2. 23. Execution of deeds by means of violence or intimidation (Art. 17. 312). 325). 304). Robbery in an inhabited place or in a private building (Art. 11. Fraudulent insolvency (Art. Removal. Other forms of arson (Art. 311).188 Elements and Notes in Criminal Law Book II by RENE CALLANTA A business secret must not be known to other business entities or persons. 302). 5. Swindling (Art. TITLE TEN CRIMES AGAINST PROPERTY Crimes against property 1. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret. 294). 7. Other deceits (Art. known and used by and must belong to one person or entity exclusively. 318). 15. 308). 326). Aiding and abetting a band of brigands (Art. 18. 14. 321). 22. Swindling a minor (Art. 12. Other forms of swindling (Art. Crimes involving destruction (Art. 314). 297). 25. 313). Arson of property of small value (Art. 299). 16. 323). 20. 8. Possession of picklocks or similar tools (Art. 319). 310). 320). 315). Qualified theft (Art. a discovery within the contemplation of Article 292. much less. Robbery in an inhabited house or public building or edifice devoted to worship (Art. 4. 19. 307). 6. 21. 306). 324). Theft of the property of the National Library and National Museum (Art. 298). Burning one’s own property as means to commit arson (Art. Destructive arson (Art. It is a matter to be discovered. Robbery with violence against or intimidation of persons (Art. 13. sale or pledge of mortgaged property (Art. 3. Setting fire to property exclusively owned by the offender (Art. Occupation of real property or usurpation of real rights in property (Art. . 317). 316). Theft (Art. 9. 24. Attempted and frustrated robbery committed under certain circumstances (Art. 10. Brigandage (Art.
G. 3. Taking of personal property – must be unlawful. 1667) . 50 O. even though the intent to gain is present in the taking. or using force upon anything. C. 330). NO. 27. S. or force upon anything. Rapuela. G. That there is unlawful taking of that property. Damage and obstruction to means of communication (Art. by means of violence against. 29 Phil. with intent to gain. Article 293 ROBBERY IN GENERAL ELEMENTS: 1. 1990) Suppose the property is res nullus or without an owner? The crime of robbery or theft cannot be committed if the property is without an owner for the simple reason that no one can be prejudiced by the taking of the personal property. 327). Kho Choc. and 4. Belonging to another – person from whom property was taken need not be the owner. (U. A. Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon things. Name of the real owner is not essential so long as the personal property taken does not belong to the accused except if crime is robbery with homicide The owner of the property may be held liable for robbery where he forcible takes the property from the possession of the bailee with intent to charge the latter with its value. or intimidation of any person. 29. 1. vs. Special case of malicious mischief (Art. 86) In the absence of any explanation as to how one has come into possession of stolen effects belonging to a person wounded and treacherously killed. R. That there be personal property belonging to another. 3. 328). 2. 28. (People vs. 331). Notes: Robbery – This is the taking or personal property belonging to another. if given in trust – estafa The taking of the property must be coupled with the intention to permanently deprive the offended party of his possession of the things taken. the possessor must necessarily be considered the author of the aggression and death of the victim as well as of the robbery committed. 2. (People vs. 85178.189 Elements and Notes in Criminal Law Book II by RENE CALLANTA 26. Albao. public monuments or paintings (Art.. That the taking must be with intent to gain. March 15. Malicious mischief (Art. Destroying or damaging statues. legal possession is sufficient The property must be personal property and cannot refer to real property. That there is violence against or intimidation of any person.
28 Phil. As to robbery with violence or intimidation – from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same. 4. 2. the taking is done with intent to gain. In both crimes. intentional mutilation or any of the serious physical injuries in par 1 and 2 of art 263. When there’s no intent to gain but there is violence in the taking – grave coercion 8. G. Adorno. 567) 12. whereas in theft. In robbery. vs. However. General rule: violence or intimidation must be present before the “taking” is complete 10. the taking is done simply without the knowledge and consent of the owner. rape.. C. S. the taking of the property is robbery complexed with any of these crimes under art 294. Grave threats No intent to gain Intimidation. et al.190 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. The use of force here must refer to the force employed upon things in order to gain entrance into a building or a house. compared. 360) 7. As to robbery with force upon things – thing must be taken out of the building Intent to gain – presumed from unlawful taking Intent to gain may be presumed from the unlawful taking of another’s property. when one takes a property under the claim of ownership or title. 6. the personal property of another. Manluco. A. Both robbery and theft involve unlawful taking or asportation as an element. Both involve personal property belonging to another. When both violence or intimidation and force upon things concur – it is robbery with violence Robbery and Theft. not upon the thing 9. (U. Use of force upon things – entrance to the building by means described in arts 299 and 302 (offender must enter) The other kind of robbery is one that is committed with the use of force upon anything in order to take with intent to gain. even if taking is already complete when violence was used by the offender 11. 1. the taking is not considered to be with intent to gain. (People vs. 40 O. 3. promises some future harm or injury Grave coercion None Intimidation (effect) is immediate and offended party is compelled to do something against his will (w/n right or Robbery with violence Intent to gain Immediate harm . Except: when violence results in – homicide. the taking is done either with the use of violence or intimidation of person or the employment of force upon things. the unlawful taking is complete 5. Violence or intimidation must be against the person of the offended party.
of a motor vehicle belonging to another without the latter’s consent. et al.. imbecile. with intent to gain. hear. 107 SCRA 118) Article 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON Acts punished as robbery with violence against or intimidation of persons By reason or on occasion of the robbery. eye. (Izon. use of any such member. SPI – insane. or by using force upon things. Any vehicle which is motorized using the streets which are public. therefore. robbery accompanied with rape or intentional mutilation. smell.191 Elements and Notes in Criminal Law Book II by RENE CALLANTA wrong) Robbery Bribery X didn’t commit crime but is intimidated to X has committed a crime and gives deprive him of his property money as way to avoid arrest or prosecution Deprived of money thru force or intimidation Giving of money is in one sense voluntary Neither Transaction is voluntary and mutual Ex. for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. robbery because (a) intent to gain and (b) immediate harm ANTI – CARNAPPING ACT ( RA # 6539 ) “Carnapping” is the taking. or by means of violence against or intimidation of persons. special complex crimes (specific penalties prescribed) robbery with homicide – . incapacitated for work habitually engaged in 4. not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. homicide 2. leg. the stealing of which comes within its penal sanction. impotent or blind 3. A tricycle which is not included in the enumeration of exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law. vs. the same comes within the protection of the law. or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the work for > 90 days. defendant demands payment of P2. > 30 days 5. arm. People. hand. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution – SPI/deformity. foot. If the vehicle uses the streets with or without the required license. SPI – lost the use of speech. the following are committed: 1.00 with threats of arrest and prosecution. Any kind of robbery with less serious physical injuries or slight physical injuries Notes: 1.
The term “homicide” is used in the generic sense. policemen came.192 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. on the occasion or by reason of the robbery. The fact that there are multiple killings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law. the crime is Robbery with Homicide. So. but because he fears that said policeman may beat him to the draw. This is not a complex crime as understood under Article 48. If death results or even accompanies a robbery. regardless of the persons killed. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latter’s action of arresting or trying to arrest the robbers. whether the killing committed by reason or on occasion thereof is intentional or accidental. that is. don’t think that those who sustained physical injuries may separately prosecute the offender for physical injuries. or even if on such robbery the person killed was done by treachery or any of the qualifying circumstances. the crime will only be one (1) count of robbery with homicide. C and D robbed a bank. and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense. the crime will be robbery with homicide provided that the robbery is consummated. When they were about to flee. first shoots the policeman fatally and only after when the latter lies dead. In short. As long as the criminal objective or plan is to rob. does he get the gun – the crime is still considered Robbery with Homicide. there is no crime of robbery with parricide. B. but a single indivisible crime. The original criminal design of the culprit must be Robbery and the Homicide is perpetrated with a view to the consummation of the Robbery. the remaining robbers shall be charged also with Robbery with Homicide. Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide. 165 SCRA 490). Pecato. . Thus. This is a special complex crime because the specific penalty is provided in the law. Tolentino. any kind of killing by reason of or on the occasion of a robbery will bring about the crime of robbery with homicide even if the person killed is less than three days old. and they traded shots with them. ( Pp vs. This is a crime against property. the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. or even if the person killed is the mother or father of the killer. (People vs. Problem: A. if original design is robbery and homicide is committed – robbery with homicide even though homicide precedes the robbery by an appreciable time. robbery with murder. If original design is not robbery but robbery was committed after homicide as an afterthought – 2 separate offenses. Robbery with Homicide was committed. and therefore. the killing occurring on the occasion thereof. If. As long as there is only one (1) robbery. If one of the robbers was the one killed. robbery was the real motive. the crime is still Robbery with Homicide. the offense is Robbery with Homicide. As long as the criminal intent is to rob. you contend not with the killing but with the robbery. Still robbery with homicide – if the person killed was an innocent bystander and not the person robbed and if death supervened by mere accident. robbery with infanticide – any and all forms of killing is referred to as homicide. c. somebody is killed. and there are also physical injuries inflicted by reason or on the occasion of the robbery. but also with robbery with murder. 151 scra 14 ) As long as there was killing when Robbery was taking place. If one of the policemen was killed. as a member of the “agaw-armas” gang whose plan and design is to rob a policeman of his service revolver. b.
One of the robbers was the one killed. He need not also be in the place of the robbery. as long as the taking was done at one time. therefore. 183 SCRA 747. In People v. that “one robbery” does not mean there is only one taking. in the course of the struggle in a house where the robbery was being committed. All the killings are merged in the composite integrated whole that is robbery with homicide so long as the killings were by reason or on occasion of the robbery. one of the robbers stepped on a child less than three days old. That there were several killings done would only aggravate the commission of the crime of robbery with homicide. if the killing in a robbery is committed with treachery. If there were killings done to different boarders during the robbery being committed in a boarder’s quarter. a band of robbers entered a compound. With more reason. The crime was held to be robbery with homicide. one of the offenders placed his firearm on the table. they were only impelled by one criminal intent to rob. In entering through the window. The crime is not robbery with infanticide because there is no such crime. you will still designate the crime as robbery with homicide. The charge should be for robbery with homicide only because the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294. As long as there is only one robbery. the offender took away property belonging to different owners. there were different boarders who were offended parties in the robbery. whether the person killed is connected with the robbery or not. and in one place. In another case. It is enough that the homicide was committed by reason of the robbery or on the occasion thereof. When two or more persons are killed during the robbery.193 Elements and Notes in Criminal Law Book II by RENE CALLANTA Illustration: The robbers enter the house. As a result. They robbed each of the quarters. Within the compound. Illustration: Robbers decided to commit robbery in a house. Illustration: . impelled by the same criminal intent to gain. there would only be one count of robbery. it was held that there is no crime of robbery with multiple homicides. Illustration: On the occasion of a robbery. it is immaterial who gets killed. that would only be part of a single robbery. however. Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers. The Supreme Court held that there was only one count of robbery because when they decided and determined to rob the compound. Note. the firearm fell on the floor and discharged. It will still be robbery with homicide. one of the robbers bumped the table. Thus. the treachery will be considered a generic aggravating circumstance because of the homicide. they are only impelled by one criminal intent to rob and there will only be one case of robbery. you only have one crime of robbery with homicide. do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house. Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence. Even though the killing may have resulted from negligence. you do not separate the homicide as one of the product of criminal negligence. the owner of the place tried to wrest the arm of the robber. There is only one count of robbery. such should be appreciated as an aggravating circumstance. Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons. which turned out to be a boarding house. if in a robbery. there were quarters of the laborers. which is actually a sugar mill. In one case. Quiñones. In robbery with homicide as a single indivisible offense. It refers to any kind of death. The word homicide as used in defining robbery with homicide is used in the generic sense. If there were homicide or death committed. A person several meters away was the one who got killed. regardless of the persons killed. While they were ransacking the place.
the crime would be not robbery with homicide because the primary criminal intent is to kill. there will be two crimes: one for the killing and one for the taking of the property after the victim was killed. It is immaterial that death supervened as a mere accident as long as the homicide was produced by reason or on the occasion of the robbery. It must be conclusively shown that the homicide was committed for the purpose of robbing the victim.194 Elements and Notes in Criminal Law Book II by RENE CALLANTA There are two robbers who broke into a house and carried away some valuables. then Article 294 should be ignored and the general provision of the law should be applied. such as the provision of Article 48. Hernandez. Remember also that intent to rob must be proved. the crimes committed are homicide and theft.” Robbery and homicide are separate offenses when the homicide is not committed “on the occasion” or “by reason” of the robbery. Would that bring about the crime of robbery with homicide? Yes. In People v. For robbery with homicide to exist. The offender must have the intent to take personal property before the killing. that the culprits committed two separate crimes of homicide or murder (qualified by abuse of superior strength) and theft. It is important here that the intent to commit robbery must precede the taking of human life in robbery with homicide. that is. So. homicide must be committed by reason or on the occasion of the robbery. then there are will be two separate crimes. Illustration: If a person had an enemy and killed him and after killing him. However. not for the purpose of committing robbery. as when the robbery resulted only in the commission of frustrated homicide. appellants had not thought of robbery prior to the killing. Even if the robbery was already consummated. and the idea of taking the money and other personal property of the victims was conceived by the culprits only after the killing. After they left such house these two robbers decided to cut or divide the loot already so that they can go of them. The thought of taking the victim’s wristwatch was conceived only after the killing and throwing of the victim in the canal. if the elements of the crime of robbery with violence employed against persons. . This is robbery with homicide. Where the victims were killed. If robbery is proved but the homicide is not proven. on the occasion of the robbery. it was held in People v. Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter. But there must be an allegation as to the robbery not only as to the intention to rob. Appellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the killing. the storeowner. 184 SCRA 409. the homicide must be committed “in the course or because of the robbery. If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed. a septuagenarian. saw that he had a beautiful ring and took this. In People v. because it is only the result which matters. Domingo. fail to meet the requirements of Article 294. the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery. 184 SCRA 409. Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead. It was held that the crime committed was robbery with homicide. If the motive is to kill and the taking is committed thereafter. The victims were killed first then their money was taken the money from their dead bodies. suffered a stroke due to the extreme fear which directly caused his death when the robbers pointed their guns at him. So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him. the accused should be convicted of robbery only and the penalty shall not be based under paragraph 1 but on paragraph 5 of the same article. without reference to the circumstances or causes or persons intervening in the commission of the crime which must be considered. since only intimidation or violence was employed and it did not result in any of the situations mentioned in paragraphs 1 to 4. Domingo.
has attempted or tried to prevent the killing. where there exists a direct relation. the court will impose a separate penalty for each of the homicide that is established by the evidence. The killing on the occasion of robbery may come in different forms. 37 Phil. 95) robbery with rape – d. 87 SCRA 130) Robbery with homicide need not be committed inside a building. Macalalad. (People vs. like when the victim is killed because he happens to know the person of the offender. The criminal liability of the person or persons who took no part in the commission of the rape which accompanied the robbery is the same as the robber or robbers who actually committed the rape unless the robber or robbers claiming innocence of the rape had endeavored to prevent the commission of the rape. What constitutes the crime as robbery with homicide is the killing of a person on the occasion or by reason of the taking of personal property belonging to another with intent to gain. (People vs. rape should be considered as aggravating only and the crime is still robbery with homicide Article 48 is not applicable to this crime because robbery is not a necessary means for the commission of rape. Tiongco. 4) Or it may be resorted to by the offender to facilitate his escape after the commission of the robbery. Prosecution of the crime need not be by offended party – fiscal can sign the information. f. In People vs. (1907). e.195 Elements and Notes in Criminal Law Book II by RENE CALLANTA If the robbery is not proven but the homicide is established. 61 Phil. 318) It is important to remember that the special complex crime of robbery with homicide is committed. . (People vs. which deals with crimes against property. all those who took part in the commission of the robbery are guilty as principals in the crime of robbery with homicide unless it appears that the principal claiming innocence in the killing. an intimate connection between the robbery and the killing. or whether both crimes were committed at the same time. 9 Phil. irrespective of whether the killing be prior or subsequent to the robbery. Puesca. if several homicides are alleged in the information for robbery with homicide. so. 1) It may be done by the offender for the purpose of suppressing evidence. then the accused should be held liable only for homicide and the penalty shall be taken from Article 249. intent to commit robbery must precede rape. When rape and homicide co-exist. Barruga. 3) The killing may also result from the offender’s defense of his possession of the stolen goods. The burden of proving the attempt to prevent others from killing the victim rests on the co-principal of the crime who makes such assertion or claim. and all of these homicides are proven beyond reasonable doubt. Neither is rape necessary to commit robbery. The same principle has been applied by the Supreme Court where the crime committed is robbery accompanied by rape. or 2) when the killing is done in order to prevent or remove any opposition which the victim may put up as regards the taking of his personal belongings. the Supreme Court ruled that whenever homicide is committed as a consequence or on the occasion of a robbery.
If the offender married the offended woman. In People v. two distinct crimes – rape and robbery were committed – not robbery with rape. when complainant went out of her room about 1:30 a. the criminal intent to gain must precede the intent to rape. although the offenders plan was to get the victim’s money. But if the accused tried to rape the offended party and because of resistance. that would not erase the crime of rape. Even under the present amendment which classifies rape as a crime against person. and the man who had grabbed her brought her to a motel. If the woman. even though the robber may have married the woman raped. he failed to consummate the act. They persisted in satisfying their lust. rape her and kill her. The Revised Penal Code does not differentiate whether rape was committed before. and that after alighting from the taxi. This is because the crime is against property which is a single indivisible offense. it was held that if the original criminal design of the accused was to commit rape and after committing the rape. 183 SCRA 493. poked an icepick on her neck . Thus. one of the accused grabbed her. but in the actual execution of the crime. It was held that two distinct crimes were committed: rape with homicide and theft. Angeles. The rape accompanies the robbery. They would have forgotten about their intent to rob if not for the accidental touching of the victim’s ring and wristwatch. and dragged her out of the house and was made to board a taxi. It is enough that the robbery accompanied the rape. to urinate. The taking of the victim’s valuables turned out to be an afterthought. If during the robbery. If the two (2) crimes were separated both by time and place. during or after the robbery. since it will be a separate charge and the offended woman pardoned the offender. there is no complex crime of Robbery with Rape. There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa. The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery. (People vs. In the latter. The rape is not erased. So. the crime remains robbery with rape. there is only a crime of robbery with rape if both the robbery and the rape are consummated. In this case where rape and not homicide is committed. she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi. by express provision of law. If the rape is attempted. the accused committed robbery because the opportunity presented itself.196 Elements and Notes in Criminal Law Book II by RENE CALLANTA This is another form of violence or intimidation upon person. robbery with rape is committed. Robbery must not be a mere accident or afterthought. which is a crime against property. the change has no legal effect on the provision of Article 294 since the special complex crime of robbery with rape is considered. the two (2) companions left her. who was raped on the occasion of the robbery. In People v. two crimes are committed: attempted rape and theft. and before boarding. pardoned the rapist who is one of the robbers. 222 SCRA 451). The offender would still be prosecuted for the crime of robbery with rape.m. If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed . as long as the rape is consummated. The Rape committed cannot be complexed with Robbery. a single crime notwithstanding that there is a plurality of crimes committed. The intention must be to commit robbery and even if the rape is committed before the robbery. one for robbery and one for the attempted rape. the crimes would be separate. the thoughts of depriving the victim of her valuables was relegated to the background and the offender’s prurient desires surfaced. the crime committed is not a crime against chastity but a crime against property. attempted rape were committed. that would bring about a bar to the prosecution of the attempted rape. where by means of force and intimidation he was able to have sex with her. Pardon by the offended party will not alter the criminal liability of the offender because in robbery with rape. that would extinguish the criminal liability because the rape is the subject of a separate prosecution. that is. the crimes committed are Robbery and Forcible Abduction with Rape. 195 SCRA 295. Flores. and then he snatched the vanity case from her hands when she ran away. Dinola.
the physical injuries must always be serious. the crime committed would only be robbery. 1951) g. where the taking is without violence or intimidation and the same is complete. 26. there would be a separate charge for the less serious physical injuries. C. But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263. Nov. The intimidation must be present at the time of the taking before it is completed. the owner of the house chased them and the robbers fought back. R. A. No. even though the physical injuries were inflicted upon one of the robbers themselves. there is no crime of robbery with less serious or slight injuries. and they fought back and somebody was killed. the crime will still be robbery with serious physical injuries. S. . Hence. So. 21 Phil 161) On robbery with physical injuries To be considered as such. and only upon persons who are not responsible in the commission of the robbery. But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body. If the taking is completed without intimidation and it is employed by the offender only to prevent the owner from recovering his stolen property. The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated. theft and less serious or slight physical injuries. the crime would still be robbery with homicide. 6342-R. and even though it had been inflicted after the robbery was already consummated. There will only be one count of accusation. If the physical injuries are only less serious or slight. If only less serious physical injuries were inflicted. the offender is liable for two crimes. Villarino. But if the less serious physical injuries were committed after the robbery was already consummated. they are absorbed in the robbery. it is necessary that violence must be employed by the offender in order that the taking may be considered as robbery. namely. In Article 299. The crime becomes merely robbery. the accused is guilty of two distinct crimes: rape and unjust vexation. there will be separate crimes: one for robbery and one for less serious physical injuries. The same is true in the case of slight physical injuries. two crimes are committed by the offender: theft and grave threat. it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 30 days that the law requires such physical injuries to have been inflicted in the course of the execution of the robbery. If violence is employed against the offended party in order to deprive him of his personal property and the violence resulted to the infliction of less serious or slight physical injuries. vs. the owner or members of the family of the owner chased them. Illustration: After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed. robbery with intimidation – acts done by the accused which by their own nature or by reason of the circumstances inspire fear in the person against whom they are directed In the taking of personal property. But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed. It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery. the violence employed on the victim which resulted to his injuries will not convert the taking of his personal property to robbery.197 Elements and Notes in Criminal Law Book II by RENE CALLANTA consent to the sexual intercourse. G. he suffers less serious or slight physical injuries in the hands of the offender. (People vs. (U. but the victim pursued the offender in order to recover the personal property taken and by the reason thereof. the crime would still be robbery with serious physical injuries. Barroga. In such a case.
Robbery with homicide. You only have one count of robbery and another count for the serious physical injuries inflicted. It will not qualify the crime to a higher degree of penalty. it will not give rise to the crime of robbery with serious physical injuries. CA). If it was inflicted when the thieves/robbers are already dividing the spoils. robbery with intentional mutilation and robbery with rape are not qualified by band or uninhabited place. there will only be one crime of robbery with homicide because all of these – killing. as in the case of rape and intentional mutilation. the crime will only be robbery and a separate charge for the serious physical injuries because when it is a deformity that is caused. you will not have only one robbery but you will have a complex crime of robbery with homicide and robbery with force upon things (see Napolis v. or got insane. Astor. or intentional mutilation committed by the offender during the robbery. Otherwise. and the arson would only be an aggravating circumstance.are contemplated by law as the violence or intimidation which characterizes the taking as on of robbery. they quarreled. robbery with force upon things was also committed. These aggravating circumstances only qualify robbery with physical injuries under subdivision 2. You charge the offenders of robbery with homicide. it cannot be considered as inflicted in the course of execution of the robbery and hence. If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a deformity in his face. it was held that if in a robbery with serious physical injuries. When it is robbery with homicide. This was the ruling in People v. If they quarreled and serious physical injuries rendered one of the robbers impotent. lost the use of any part of his body. serious physical injuries -.198 Elements and Notes in Criminal Law Book II by RENE CALLANTA Illustration: After the robbers fled from the place where the robbery was committed. during or on the occasion or by reason of the robbery. thus. or robbery with intentional mutilation. But if the victims were detained because of the timely arrival of the police. The rape or physical injuries will only be appreciated as aggravating circumstance and is not the subject of a separate prosecution. the detention is absorbed by the crime of robbery and is not a separate crime. The composite crime would only be committed if the primordial intent of the offender is to commit robbery and there is no killing. in that order. On robbery with arson Another innovation of Republic Act No. In People v. rape. blind in both eyes. the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 30 days. the crime would be robbery with homicide. rape. the offenders herded the women and children into an office and detained them to compel the offended party to come out with the money. the crime of serious illegal detention was a necessary means to facilitate the robbery. the law requires that the deformity must have been inflicted upon one who is not a participant in the robbery. Moreover. The crime is still robbery with homicide even though one of the robbers was the one killed by one of them. or robbery with rape. or he lost the use of any of his senses. This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things. If on the occasion of the robbery with homicide. a killing. Salvilla. such that the offenders had no choice but to detain the victims as hostages in exchange for their safe passage. the band or uninhabited place is only a generic aggravating circumstance. must have been inflicted in the course of the execution of the robbery or while the robbery was taking place. the complex crimes of robbery with serious physical injuries and serious illegal detention. 3. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery. they decided to divide the spoils and in the course of the division of the spoils or the loot. the crime will still be robbery with serious physical injuries. . It is essential that robbery precedes the arson. If. because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery. rape or serious physical injuries took place. and 4 of Article 299. They will only call for the imposition of the penalty in the maximum period. They shot it out and one of the robbers was killed.
199 Elements and Notes in Criminal Law Book II by RENE CALLANTA Moreover. or e. highway or alley and the intimidation is made with the use of firearms. since the law requires as a condition to its commission the actual participation of the offender in the execution of the crime. Article 295 QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION Qualifying circumstances in robbery with violence or intimidation of persons. it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294. but not of robbery by the use of force upon things in Articles 299 and 302. on a street. he was a member of the band b. motor vehicle or airship. the conviction of a principal by inducement will only be limited to his criminal liability as a co-conspirator. by a band or c. 4 and 5 of Art 294 is committed: a. Liability for the acts of the other members of the band a. Must be alleged in the information 2. if the robbery was by the use of force upon things and therewith arson was committed. he was present at the commission of a robbery by that band c. In such a case. so that. by attacking a moving train. Art 295 will not apply to: robbery w/ homicide. Their participation in the commission of the crime must be actual. street car. road. he did not attempt to prevent the assault 2. The offender must be principal by direct participation. if any of the offenses defined in subdivisions 3. or d. or in any manner taking the passengers thereof by surprise in the respective conveyances. a principal by inducement cannot be convicted of this crime where the aggravating circumstance of band shall be appreciated against him. Can’t be offset by generic mitigating 3. other members of the band committed an assault d. two distinct crimes are committed. the offender shall be punished by the max period of the proper penalties prescribed in art 294 Notes: 1. So. rape or SPI under par 1 of art 263 Article 296 ROBBERY BY A BAND Notes: Band is defined as consisting of at least four armed malefactors organized with the intention of carrying out any unlawful design. by entering the passenger’s compartments in a train. Conspiracy to commit robbery with homicide – even if less than 4 armed men . 1. in an uninhabited place or b.
That the offender has intent to defraud another. any member who was present at the commission of the robbery and who did not do anything to prevent the killing of the victim on the occasion of the robbery shall be held liable for the crime of robbery with homicide. Article 297 has no application. intent to gain is an indispensable element. Band is a special aggravating circumstance if the robbery results in the infliction of serious physical injuries. Cinco. That the offender compels him to sign. The element of intent to gain or fraudulent intent is what distinguishes this felony from grave coercion. In such a case. in coercion. In the same manner. Consequently. the fear created in the mind of the offended party is not immediate but remote. Conspiracy is presumed when 4 or more armed persons committed robbery 5. Where the homicide is only attempted or frustrated. the crime shall be treated under the provisions of Article 48 on ordinary complex crimes. But in the other circumstances provided under Article 294 particularly paragraphs 3. 194 SCRA 535) 4. Although both crimes share a common element which is the compelling of any person to do something against his will. penalty is the same When the robbery is attempted or frustrated. whether long or short. Unless the others attempted to prevent the assault – guilty of robbery by band only Band is a generic aggravating circumstance in the crime of robbery with homicide or rape.200 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. the penalty prescribed by Article 48 shall be observed. 3. or deliver any public instrument or document. In coercion. there is no intent to gain whereas in this form of robbery. 2. In this type of robbery. 294 has no application because the robbery and the homicide must be both consummated. Conspiracy to commit robbery only but homicide was committed also on the occasion thereof – all members of the band are liable for robbery with homicide Even if the agreement refers only to the robbery. the fear is immediate and not remote. nonetheless. where the attempted or frustrated robbery results in the commission of serious physical injuries. Article 298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION ELEMENTS: 1. That the compulsion is by means of violence or intimidation. Article 297 ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE Notes: 1. where the robbery is committed by a band and a person is killed. . band is a special aggravating circumstance which must be alleged in the information. Art. Whether robbery is attempted or frustrated. nonetheless. Article 297 does not apply. 4 and 5. (People vs. execute. The arms contemplated under this article refers to any deadly weapon and is not limited to firearms.
vs. window. . it is necessary that offender enters the building or where object may be found. Not any kind of force upon things will characterize the taking as one of robbery. etc. the crime will only be theft. Inhabited house – any shelter. ship or vessel constituting the dwelling of one or more person even though temporarily absent – dependencies.S. 2 PHIL 16 ) "Force upon things" has a technical meaning in law. b. Includes dependencies (stairways. corals. even though force may have been employed actually in the taking of the property from within the premises.201 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP ELEMENTS: 1. wall or floor of the aforesaid house or building. 4. NOT INCLUDED – ORCHARD. That once inside the building. etc. d. 2. the offender must have entered the premises where the robbery was committed.S. Notes: In this kind of Robbery. or (b) public buildings. NO ROBBERY In the absence of evidence to show how bandits effected an entrance into the convent which they robbed. c. The act would be treated as Theft. In other words. 2. or (c) edifice devoted to religious worship. LANDS FOR CULTIVATION. 39 Phil. That the entrance was effected by any of the following means: a. The term force upon things has a legal meaning. roof. the force upon things has no reference to personal property but to a house or building which is ordinarily classified as real property. (U. barns. vs. hallways. courts. there can be no conviction under this article. 1. By breaking any wall. 3. Callotes. Through an opening not intended for entrance or egress. or floor or breaking any door or window. 3. 523).) A small store located on the ground floor of a house is a dependency of the house. By using false keys. By using any fictitious name or pretending the exercise of public authority. one has to enter the store which has a door. ( U. The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed. the offender took personal property belonging to another with intent to gain. no violence or intimidation against persons is ever used. NO ENTRY. Important for robbery by use of force upon things. Ventura. It means the employment of force to effect entrance into the house or building by destroying the door. That the offender entered (a) an inhabited house. roof. there being no partition between the store and the house and in going to the main stairway. picklocks or similar tools or. In other words. If no entry was effected.
a vehicle bumped the wall. only Theft. a robbery will be committed if any personal property is taken from within. rented or used by the government (though owned by private persons) though temporarily vacant Not robbery – passing through open door but getting out of a window If accused entered the house through a door. Illustration: The entry was made through a fire escape. and it was while escaping that he broke any wall. 7. At night. Illustration: A found B inside his (A’s) house. what should be considered is the means of entrance and means of taking the personal property from within. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. The wall collapsed. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered. Lamahang – intent to rob being present is necessary Place: house or building. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose. will not give rise to robbery. 8. If the entering were done through the window. not car Public building – every building owned. Even of there is a breaking of wall. 6. but the offender did not enter. that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. even if the window was not broken. The entry will not characterize the taking as one of robbery because it is an opening intended for egress. floor or window. under Article 299 (a). If the offender had already entered when these means were employed. The fire escape was intended for egress. a man entered through that opening without breaking the same. Entrance is necessary – mere insertion of hand is not enough (whole body). or the taking of a sealed. Note that in the crime of robbery with force upon things. anything taken inside. He asked B what the latter was doping there. There was a small opening there. Illustration: On a sari-sari store. . Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress. If by the mere entering. If those means do not come within the definition under the Revised Penal Code. evidence to such effect is necessary Two predicates that will give rise to the crime as robbery: 1. 9. P v. 2. the taking will only give rise to theft. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery. without breaking of any sealed or closed receptacle. By mere entering alone. not to get out but to enter – therefore.202 Elements and Notes in Criminal Law Book II by RENE CALLANTA 5. although it may not be intended for entrance. he has already entered. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A. The entering will not give rise to robbery even if something is taken inside. it would not give rise to robbery with force upon things. Those means must be employed in entering. roof. floor or window after taking personal property inside the house – there is no Robbery committed. that would already qualify the taking of any personal property inside as robbery. locked receptacle to be broken outside the premises. it is immaterial whether the offender stays inside the premises.
the taking from within is only theft. would be Robbery. They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away. Hence. If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house. otherwise. But the ruling is now abandoned because the door is considered useless without the lock. there must be some damage to the door. 11. and not a place devoted to religious . 13.. 14. 16. But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken. What crime was committed? It is only theft because the premises where the simulation of public authority was committed is not an inhabited house. any taking personal property thereat with intent to gain. must be broken and not just opened) Use of picklocks or false keys refers to the entering into the premises – If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken. adopted for commission of robbery Key – stolen not by force. and not to extract personal belongings from the place where it is being kept. Gen. pretending to be police to be able to enter (not pretending after entrance) When the robbery is committed in a house which is inhabited. the cabinet keeps the contents thereof safe. They went inside and broke in . Although that particular door is not included as part of the house. the breaking of the cabinet door would characterize the taking as robbery. smashed. if the door was not damaged but only the lock attached to the door was broken. False keys – genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock Picklocks – specially made. Before. Even if it is not the door that was broken but only the lock. E. Rule: outside door. Theft – if lock is merely removed or door was merely pushed Breaking of the door under Article299 (b) – Originally.203 Elements and Notes in Criminal Law Book II by RENE CALLANTA 10. the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. the interpretation was that in order that there be a breaking of the door in contemplation of law.g. Outside door must be broken. Question & Answer Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door. otherwise. the closed door was opened. or in a public building or in a place devoted to religious worship. and because of that. 15. it’s robbery by violence and intimidation against persons False key – used in opening house and not furniture inside. or that they were NBI agents executing a warrant of arrest. The guard obliged. the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance. the taking inside is considered robbery with force upon things. They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there. the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things. not a public building. 12. and so the occupant opened the door. Exception: inside door in a separate dwelling If in the course of committing the robbery within the premises some interior doors are broken. the taking from inside the room where the door leads to will only give rise to theft. theft (for latter to be robbery.
is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein. locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles. even though there is simulation of public authority in committing the taking or even if he used a fictitious name. ELEMENTS OF ROBBERY WITH FORCE UPON SUBDIVISION (B) OR ART. even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed.204 Elements and Notes in Criminal Law Book II by RENE CALLANTA worship. In the same manner. by the breaking of doors. The place considered uninhabited when it is not used as a dwelling. chests. a. Theft – if box found outside and forced open Article 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND When the robbery with force upon things is committed in an uninhabited place and by a band. under any of the following circumstances. PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Notes: Inhabited house – Any shelter. Offender may be servants or guests A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept. the robbery becomes qualified. 299 1. Where the house is a private building or is uninhabited. ship. cabinet or place where it is kept. Estafa – if box is in the custody of accused 5. When sealed box is taken out for the purpose of breaking it. That the offender takes personal property belonging to another with intent to gain. 3. the crime becomes qualified. where robbery with violence against or intimidation of persons is committed by a band or in an uninhabited place. That the offender is inside a dwelling house. It may refer to a building or a house which is not used as a dwelling. or edifice devoted to religious worship. or b. the crime is only theft. 2. by taking such furniture or objects away to be broken or forced open outside the place of the robbery. their casual absence will not make the place or house uninhabited. or any other kind of locked or sealed furniture or receptacle. it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed. wardrobes. . regardless of the circumstances under which he entered it 2. no need to open – already consummated robbery 4. Notes: 1. Entrance ( no matter how done) If the entering does not characterize the taking inside as one of robbery with force upon things. S. or vessel constituting the dwelling of one or more persons. Ventura. If a house is inhabited and its owners or occupants temporarily left the place to take a short vacation in another place. 523) Article 301 WHAT IS AN INHABITED HOUSE. 39 Phil. vs. public building. (U.
the information must allege that the same was used and occupied as a dwelling (People vs. 302 is applicable. Likewise. False keys – genuine keys stolen from the owner or any other keys other than those intended by the owner for use in the lock forcibly opened . Exception: does not include use of fictitious name or pretending the exercise of public authority 5. The entrance was effected through the use of false keys. Uninhabited place – is an uninhabited building (habitable. Exception: orchards/lands Article 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING ELEMENTS: 1. not any of the 3 places mentioned) Ex. that the entrance by using any fictitious name or pretending the exercise of public authority is not among those mentioned in Article 302 because the place is Uninhabited and therefore without person present. 620). granaries or enclosed places: a. Same manner as 299 except that was entered into was an uninhabited place or a building other than the 3 mentioned in 299. dependencies – are all interior courts. or any sealed or closed furniture or receptacle was broken or e. b. 3. A wall. chest. Notes: 1.205 Elements and Notes in Criminal Law Book II by RENE CALLANTA Public building – Includes every building owned by the government or belonging to a private person but used or rented by the government. 4. that any of the following circumstances was present: a. roof. floor. c. 1. even if the same be broken open elsewhere. 49 Phil. 2. or not an edifice devoted to religious worship. Exception: pigsty A store may or may not be an inhabited place depending upon the circumstances of whether or not it is usually occupied by any person lodging therein at night. Garage – must have 3 requirements. That the offender entered an uninhabited place or a building which was not a dwelling house. A door. which form part of the whole 2. A closed or sealed receptacle was removed. warehouse. wardrobe. although temporarily unoccupied by the same. the penalty depends on the amount taken disregarding the circumstances of whether the robbers are armed or not as in the case in Robbery in Inhabited Place. having an interior entrance connected therewith c. Second kind of robbery with force upon things It must be taken note of. Tubog. picklocks or other similar tools. corrals. Although it may be used as a dwelling to sustain a conviction under Article 299. in this class of Robbery. or outside door or window was broken. That with intent to gain the offender took therefrom personal property belonging to another. freight car. store. not a public building. d. 3. Breaking of padlock (but not door) is only theft 6. 2. otherwise Art. That entrance was effected through an opening not intended for entrance or egress. contiguous to the building b. warehouses.
” It does not include hulled rice. If the cereals. Article 305 FALSE KEYS WHAT CONSTITUTES: 1. it however refers to uninhabited building and its dependencies. The word cereals however must be understood to mean “seedlings” or “semilla. 3. a higher penalty is prescribed by law. or firewood. if the robbery under Article 299 and 302 consists in the taking of cereals. Genuine key stolen from owner. the penalty imposable is lower. Can he be charged of illegal possession of picklocks or similar tools? The answer is NO since the same possession of these tools is already absorbed in the graver crime of robbery. 3. Article 304 ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS ELEMENTS: 1. FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING Under Article 303. etc. 2. While the law uses the term uninhabited place. Possession of false keys here not punishable If key was entrusted and used to steal. It may include palay or unhulled palay. 2. fruits. Any key other than those intended by owner for use in the lock forcibly opened by the offender Notes: 1. Note: Actual use of the same is not necessary The law also prohibits the manufacture or fabrication of such tools. That the offender does not have lawful cause for such possession.206 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 303 ROBBERY OF CEREALS. not robbery (not stolen) BRIGANDAGE Brigandage – This is 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 persons for the . That the offender has in his possession picklocks or similar tools. Picklocks. fruits or firewood were taken outside a building and its dependencies. If the manufacturer or maker or locksmith himself is the offender. 2. Supposing that in the crime of robbery. That such picklocks or similar tools are specially adopted to the commission of robbery. the offender used a picklock to enter a building. the crime committed would only be theft even though the taking was done in an uninhabited place.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence.
Article 306 WHO ARE BRIGANDS
Brigands – more than three armed persons forming a band Elements of brigandage: 1. There are least four armed persons; 2. 3. They formed a band of robbers; The purpose is any of the following: a. b. c. To commit robbery in the highway; To kidnap persons for the purpose of extortion or to obtain ransom; or To attain by means of force and violence any other purpose.
Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them) b. possession of any kind of arms (not just firearm) BRIGANDAGE ROBBERY IN BAND Purposes are given Only to commit robbery, not necessarily in hi-way Mere formation of a band for If the purpose is to commit a part robbery the above purpose Necessary to prove that band actually committed robbery There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage. The primary object on the law on brigandage is to prevent the formation of bands of robbers. Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes. Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appears clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage. It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not pre-determined victims. If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately.
Article 307 AIDING AND ABETTING A BAND OF BRIGANDS
ELEMENTS: 1. That there is a band of brigands.
Elements and Notes in Criminal Law Book II by RENE CALLANTA
2. That the offender knows the band to be of brigands. 3. That the offender does any of the following acts: a. he in any manner aids, abets or protects such band of brigands, or b. he gives them information of the movements of the police or other peace officers of the government or c. He acquires or receives the property taken by such brigands. Notes: PD 532 – brigandage. 1. Seizure of any person for: (a) ransom; (b) extortion or other unlawful purpose; (c) taking away of property by violence or intimidation or force upon things or other unlawful means 2. 3. Committed by any person On any Phil hi-way
Code and highway
Distinction between brigandage under the Revised Penal robbery/brigandage under Presidential Decree No. 532: (1)
Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence. The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage. Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway.
Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code. In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly. The Supreme Court pointed out that the purpose of brigandage “is, inter alia, indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim”. A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants. Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts
Elements and Notes in Criminal Law Book II by RENE CALLANTA
are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.
THEFT Article 308 THEFT
ELEMENTS: 1. That there be taking of personal property. 2. That said property belongs to another. 3. That the taking be done with intent to gain. 4. That the taking be done without the consent of the owner. 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. PERSONS LIABLE: 1. Those who a) with intent to gain b) But without violence against or intimidation of persons nor force upon things c) take personal property of another d) without the latter’s consent The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300) 2. Those who a) having found lost property b) fail to deliver the same to local authorities or its owner Notes: 1. Retention of money/property found is theft. Retention is failure to return (intent to gain) The word “lost” is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475) The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720) 2. Knowledge of owner is not required, knowledge of loss is enough the the the the
It is not necessary that the owner of the lost property be known to accused. What is important is that he knows or has reason to know that property was lost and for this fact alone, it is his duty to turn it over to authorities. If he does otherwise, like, if he sells the thing to another, then crime of theft is committed. 3. Finder in law is liable
a neighbor who shoots and kills a goat which has destroyed his flower plants and thereafter slaughters and eats the meat of the wandering goat is guilty of theft. the control test In the crime of theft. the law makes only of the term “taking” and not “taking away. Longdew.” The non-inclusion of the word “away” is significant because it means that as soon as the culprit takes possession of the things taken by him. 55 SCRA 563) The consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing. No. Naval. His duty is to tell the owner about the treasure. Dino – applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). So. P v. A. (People vs. Otherwise. Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner. Servant using car without permission deemed qualified theft though use was temporary 4. It is enough that he has obtained. complete control and possession of the thing desired. resentment or other evil motive against the owner. Those who a) enter an enclosed estate or a field where b) trespass is forbidden or which belongs to another and. at some particular moment. 46 O. G. therefore must exclude “joyride” . If he appropriates the other half pertaining to the owner of the property. June 4. The property need not be actually taken away by the thief. (People vs. G. (People vs. Jaranilla. adverse to the right of the lawful owner.e. 4. Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could dispose of it at once (though no opportunity to dispose) i. Espiritu – full possession is enough 3. 2641) 2. he is liable for theft as to that share. the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. 9380-R. In malicious mischief. P v. without the consent of its owner c) hunts or fish upon the same or gather fruits. Those who a) after having maliciously damaged the property of another b) remove or make use of the fruits or object of the damage caused by them Theft of damaged property occurs only after the accused has committed the crime of malicious mischief. the crime of theft is already consummated since the law does not require that the thief be able to carry away the thing taken from the owner.210 Elements and Notes in Criminal Law Book II by RENE CALLANTA Hidden Treasure Under Article 438 and 439 of the Civil Code. the offender destroys the property of another because of hatred. R. C. 1953) 3. cereals or other forest or farm products Notes: 1.
Theft: if after custody (only material possession) of object was given to the accused. 441) 2. B. one using a jumper Personal Property Personal property in the crime of theft includes electric current or properties that may have no material or concrete appearance. Reyes) 8.. felonious conversion. inspector misreads meter to earn b. checks.g.211 Elements and Notes in Criminal Law Book II by RENE CALLANTA 5. Gain is not just Php – satisfaction. 11. taking of Php is 9. The test is not whether the subject is corporeal or incorporeal but whether it is incapable of appropriation by another from the owner. and any other commercial documents may be the object of theft because while they may not be of value to the accused. or under a quasicontract or a contract of bailment. use. he cannot be held guilty of theft but of estafa because here. he has both the physical and juridical possession of the property. If in bad faith – theft) 10. while it may not of value to the thief. 6 Phil. Raboy. (U. Selling share of co-partner is not theft The personal property must belong to another. Hence. (L. If offender claims property as his own (in good faith) – not theft (though later found to be untrue. it is actually taken by him (no intent to return) e.g. Koc Song. 12. One who takes away the property pledged by him to another without the latter’s consent. any benefit (e. A joint owner or partner who sells the palay to other persons or a co-owner or co-heir whp appropriates the whole property cannot be guilty of theft since the property cannot be said to belong to another. When possession by the offender is under any of these circumstances and he misappropriates the thing received. 6. Includes electricity and gas a. Reyes. pleasure desired. it is undoubtedly of value to the offended party. It includes the benefit which in any other sense may be derived or expected from the act performed. vs. joyride) Gain means the acquisition of a thing useful for the purpose of life. S. prior to this. 63 Phil. promissory notes. 25 Phil. by contract of bailment Juridical possession of a thing is transferred to another when he receives the thing in trust or on commission or for administration. 369). does not commit theft for the simple reason that he is the owner of the thing taken by him. Actual gain is not necessary (intent to gain necessary) Allege lack of consent in info is important . 1. S. the penalty shall be based on the amount of money represented by the checks or promissory note since. (U. they are without doubt of value to the offended party. theft Salary must be delivered first to employee.g. 7. But it is estafa if juridical possession is transferred e. 1) In such a case. (People vs.
If he is being prosecuted separately. the person who partook of the proceeds is liable for fencing. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another. The place where the theft or robbery was committed was inconsequential. Presumption: A person found in possession of a thing taken in the recent doing of a wrongful act is the taker of the thing and the doer of the whole act. Note: Fish not in fishpond. That the offender hunts or fishes upon the same or gathers fruits. qualified Ortega Notes: Fencing under Presidential Decree No. or dealt with. In view of the clear text of the law. kept. In People v. whereas in theft. 2. 26256. the person is prosecuted as an accessory. an information which does not aver “lack of consent of the owner” would render the allegation insufficient and the information may be quashed for failure to allege an essential element of the crime. For robbery to exist. Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed. Judge de Guzman. One who deposits stolen property in a place where it cannot be found may be deemed to have such property in his possession. it was held that fencing is not a continuing offense. .212 Elements and Notes in Criminal Law Book II by RENE CALLANTA Consent as an element of the crime of theft must be in the concept of consent that is freely given and not one which is inferred from mere lack of opposition on the part of the owner. it is sufficient that consent on the part of the owner is lacking. the information must allege lack of consent. cereals or other forest or farm products. R. No. 1968) Robbery and theft distinguished. Possession is not limited to actual personal custody. 3. The allegation of “lack of consent” is indispensable under the first paragraph of Article 308 since the language or epigraph of the law expressly requires that the (unlawful) taking should be done without the consent of the owner.3. That the hunting or fishing or gathering of products is without the consent of the owner. G. June 26. Where the charge of theft under the first sentence of Article 308. ELEMENTS OF HUNTING. That the offender enters the same. ART. If the participant who profited is being prosecuted with person who robbed. otherwise. 308) 1. People. and 4. ETC. NO. (Pua Yi Kun vs. FISHING OR GATHERING FRUITS. it is necessary that personal property be taken against the will of the owner. 1612 is a distinct crime from theft and robbery. bought. IN ENCLOSED ESTATE (PAR.
Cattle Rustling and Qualified Theft of Large Cattle – The crime of cattle-rustling is defined and punished under Presidential Decree No. The Presidential Decree. This is a malum prohibitum so intent is not material. as the taking by any means. He may be liable for fencing even if he paid the price because of the presumption. But if prosecution is under the Revised Penal Code. the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. however. to that extent. Presidential Decree No. the criminal intent is controlling. February 13. simple cattle-rustling. the minimum penalty shall be imposed under par. the same can no longer be appreciated. the Anti-Cattle Rustling law of 1974. This is explicit from Section 10 of the Presidential Decree. there may be fencing such as when the price is way below ordinary prices. since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling. but merely modified the penalties provided for theft of large cattle and. therefore be only. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle. as an accessory. 1991) PENALTIES FOR QUALIFIED THEFT. the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling. 84 Phil. People. If the property has some value but is not proven with reasonable certainty. 533 is not a special law in the context of Article 10 of the Revised Penal Code. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. This was the ruling in Pamintuan v. 964). the court can impose the penalty which is found favorable to the accused. amended Articles 309 and 310. so long as the taking is without the consent of the owner/breed thereof. the crime should. Where the large cattle was not taken. 533. G. (Cristobal vs. the crime would be estafa under Article 315 (1b). 58 Phil. (People vs. decided on July 11. 309 (People vs. Consequently. (People v. the court is allowed to take judicial knowledge of the value of such property. the crime is not cattle-rustling. of any large cattle. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing. dela Cruz. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner. The presumption does not offend the presumption of innocence in the fundamental law. it is qualified theft of large cattle. 473). even without taking any part thereof. Reyes. People.213 Elements and Notes in Criminal Law Book II by RENE CALLANTA Since Section 5 of Presidential Decree No. it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established. but received by the offender from the owner/overseer thereof. Martinada. Where the large cattle was received by the offender who thereafter misappropriated it. the killing or destruction of large cattle. 1994. court will convict. this may serve as notice. is not a crime of malicious mischief but cattle-rustling. It should only be an aggravating circumstance. Since the intent to gain is not essential. 6 of Art. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. But because the information did not allege the injury. (309) The basis of the penalty is the value of the things stolen. Burden of proof is upon fence to overcome presumption. . When there is notice to person buying. if explanation insufficient or unsatisfactory. 43 O. 3206) When the resulting penalty for the accessory to the crime of theft has no medium period. with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things. does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code. When there is no evidence as to the value of the property stolen. method or scheme.
life and property to the accused with such degree of confidence and that the accused abused the same. guests In the case of abuse of confidence. If the offender acquires the juridical as well as the physical possession of the thing and he misappropriates it. Notes: When the theft is committed by a domestic servant. . If the possession of the offender is not under any of these concepts. the crime committed is estafa. On occasion of calamities and civil disturbance. the student must remember that in qualified theft. “grave abuse” – high degree of confidence e. conversion of the property gives rise to the crime of theft. no confidence.214 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 310 QUALIFIED THEFT THEFT IS QUALIFIED WHEN: 1. or 3. To avoid confusion between theft with abuse of confidence (qualified theft) and estafa with abuse of confidence. motor vehicle b. only the physical or material possession of the thing is transferred. the crime is qualified theft. Abuse of confidence is also an element of estafa. the latter must be “grave” in order to comply with the requirement of the law because abuse of confidence is not enough. or 4. Property stolen is: a. The roomboy is a hotel is embraced within the term “domestic servant. Juridical possession of the thing is acquired when one holds the thing in trust. It may also refer to the nature of the work of the offender which must necessarily involve trust and confidence. the offended party may either be the employer where the offender is working as a household help.” 1. Where only the material possession is transferred. Where both the material and juridical possession is transferred. There must be an allegation in the information that there is a relation between the accused and the offended party wherein the latter confided his security as to his person. where the offender misappropriates a thing after he receives it from the victim. 2. any misappropriation made by the possessor will not result in the commission of any crime.g. When the material and juridical possession of the thing transfers ownership of the property to the possessor. large cattle d. or 2. not qualified theft theft – material possession’ estafa – juridical possession 3. either for theft of estafa. Committed by domestic servant. or a third person as a guest in the house. misappropriation of the property would constitute estafa. fish from fishpond or fishery. or on commission. coconut from plantation e. With grave abuse of confidence. mail matter c. or for administration or under any other obligation involving the duty to deliver or to return the thing received. Abuse of confidence is determined from the trust reposed by the offended party to the offender.
. Motor vehicle not used as PU in kabit system but under K of lease-estafa On carnapping and theft of motor vehicle When the subject is motor vehicle. who thereafter misappropriated the same. the Theft becomes qualified. the crime is estafa. otherwise. That the real property or real rights belong to another. if juridical possession was also yielded. any vehicle which uses the streets. Taking possession of any real property belonging to another by means of violence against or intimidation of persons. motor vehicle in kabit system sold to another-theft. or by using force upon things is penalized as carnapping under Republic Act No. Usurping any real rights in property belonging to another by means of violence against or intimidation of persons. within its protection. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender. People. when accused considered the deed of sale as sham (modus) and he had intent to gain. 226 theft of large cattle Article 311 THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM USURPATION Article 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Acts punished: 1. 6539.. guards. That the offender takes possession of any real property or usurps any real rights in property. 2. 107 SCRA 123) The taking with intent to gain of a motor vehicle belonging to another. or any vehicle which is motorized using the streets. the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. the term motor vehicle includes. his absconding is QT 8. 10. 2. without the latter’s consent. as amended. mail matter – private mail to be QT. Not postmaster – Art. tellers novation theory applies only if there’s a relation industrial partner is not liable for QT (estafa) 7.A.g.215 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. 3. AntiCarnapping Act of 1972. 6539 (An Act Preventing and Penalizing Carnapping). such as a motorized tricycle. Qualified: if done by one who has access to place where stolen property is kept e. 6. ELEMENTS: 1. 5. or by means of violence or intimidation of persons. Under R. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. That violence against or intimidation of persons is used by the offender in occupying real property or usurpation real rights in property. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender. (Izon vs. with or without the required license. 9.
(People v. parricide. if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights. Intruders of lands reserved for socialized housing. murder. Note that violation of Article 312 is punishable only with fine. pre-empting possession by occupying the same. That there is intent to gain. grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender. Alfeche. it is real property.. On squatting According to the Urban Development and Housing Act. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway. where threats are uttered to the owner of real property by one illegally occupying it. the same may be quashed as it does not charge an offense. at most. If a tenant was occupying the property and he was threatened by the offender. The owner would. There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. 83 SCRA 670) The complainant must be the person upon whom violence was employed. In the absence of the intent to gain. if the evidence of the prosecution shows that the accused entered the premises by means of strategy. 3.216 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. So. Judge Alfeche. (People vs. stealth or methods other than the employment of violence. 1992) The possession of the land or real rights must be done by means of violence or intimidation. the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. The main difference is that in robbery. When such eventuality does occur. while in usurpation of real rights. be entitled to civil recourse only. there must be intent to gain. Violence employed results to the death of the offended party. There is only a single crime. Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294. personal property is involved. (Castrodes vs. 211 SCRA 770) Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. but it was the owner who was not in possession of the property who was named as the offended party. 2. the act may constitute Coercion. Cubelo. the latter shall be punished separately for the crime of physical injuries. no crime was committed by the offender. the following are squatters: 1. Article 313 ALTERING BOUNDARIES OR LANDMARKS ELEMENTS: . So. July 23. Hence. then the crime may rightfully be denominated as usurpation of real rights resulting to homicide. Since this is a crime against property. Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. Also the persons who were awarded lots but sold or lease them out. Jr. or infanticide as the case may be.
or any other marks intended to designate the boundaries of the same. the disposal of the merchandise must be done with malice. ELEMENTS OF ESTAFA IN GENERAL: (315) . That there be prejudice to his creditors. 2655) The law does not require the offender to be a merchant. CULPABLE INSOLVENCY Article 314 FRAUDULENT INSOLVENCY (culpable insolvency) ELEMENTS 1. or estates. The property which the offender may abscond which consists of both real and personal property. G. That there be boundary marks or monuments of towns. It is a continuing crime unlike theft. For the Insolvency Law to apply. 45 Phil. Being a public crime. 372) The law on fraudulent insolvency is different from the Insolvency Law. C. That he absconds with his property. SWINDLING AND OTHER DECEITS Estafa is embezzlement under common law. (People vs. that is. The mere circumstance that a person has disposed of his merchandise by removing them from the place where they were kept would necessarily imply fraud.217 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. 2. That the offender is a debtor. But under the present article. there is no requirement that the accused should be adjudged bankrupt or insolvent.” and this refers to anyone who becomes a debtor and performs the acts made punishable by the law. 2. Guzman. It is a well-known crime to lawyers and businessmen. The law says “any person. provinces. To be liable for fraudulent insolvency. he was obligations due and payable. What is required is actual prejudice to the creditor. the criminal act must have been committed after the institution of the insolvency proceedings against the offending debtor. That the offender alters said boundary marks. 40 O. 3. A. it can be prosecuted de officio. Article 315 A. Chong Chuy Lingobo. The intention of the accused alone is not enough. (People vs.
2. is not yet fully or partially paid.1 PAR. It is the altering of the substance. C. That there is a demand made by the offended party to the offender. (The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. for the money. That damage or prejudice is caused to another. 114] ). and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. 101 Phil. [Tubb v. goods or personal property to have been received by the offender in trust. or (b) or means of deceit and 2. The word “onerous” means that the offended party has fully complied with his obligations to pay. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person The concept of damage under this article does not mean actual or real damage. That he alters its substance. or quality. the penalty is dependent on the value of the property. the same. et al. 3.) by abuse of confidence. or on commission or for administration. People. In money market placements. . B. quantity or quality agreed upon. He must acquire both material or physical as well as juridical possession of the thing received. The accused does not receive the goods but delivers a thing under an onerous obligation which is not in accordance with the substance. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER SUBDIVISION NO. It may consist in mere disturbance of the property rights of the offended party. or under any other obligation involving the duty to make delivery of or to return. In the latter case. 3. the damage can be in the form of temporary prejudice or suffering. OF ART. then the crime of estafa is not committed. That money. the unpaid investor should institute against the middleman or dealer. or dental on his part of such receipt. That the accused defrauded another (a. it can be divided into consummated.. or inconvenience capable of pecuniary estimation. the damage must be capable of pecuniary estimation. the offender. However. So. This requirement is important because in estafa.315 1. or for administration. A money market transaction however partakes of the nature of a loan. or on commission. That there be misappropriation or conversion of such money or property by the offender. goods. who is the transferee.218 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. acquires a right over a thing which he may set up even against the owner. (B). That the offender has an onerous obligation to deliver something of value. 2. It is necessary in this kind of estafa. Since estafa is a material crime. that such misappropriation or conversion or dental is to the prejudice of another and 4. if the thing delivered whose substance was altered. or other personal property be received by the offender in trust. In these instances. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315) 1. quantity. attempted or frustrated stages. quality or quantity of the thing delivered which makes the offender liable for the crime of estafa.
219 Elements and Notes in Criminal Law Book II by RENE CALLANTA before the ordinary courts. not ownership b. Failure to account misappropriation after the DEMAND is circumstantial evidence of . and if there is allegation of fraud. 315 = 3 WAYS OF 1. Estafa – not affected by Novation of Contract because it is a public offense e. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH (B). Partners – No estafa of money or property received for the partnership when the business is commercial and profits accrued. (Sesbreno vs. 240 SCRA 606). the proper forum would be the Securities and Exchange Commission.1. 2. thing is received by offender under transactions transferring juridical possession. By converting the thing received. sale on credit by agency when it was to be sold for cash – estafa d. Converting – act of using or disposing of another’s property as if it was one’s own. under PD 115 (Trust Receipts Law) – failure to turn over to the bank the proceeds of the sale of the goods covered by TR – Estafa c. ART. existing obligation to deliver – even if it is not a subject of lawful commerce c. Misappropriating – to take something for one’s own benefit g. 3. i. no agreement as to quality – No estafa if delivery is unsatisfactory 2.. Notes: 1. thing delivered has not been fully or partially paid for – not estafa c. There must be prejudice to another – not necessary that offender should obtain gain There is no estafa through negligence. same thing received must be returned otherwise estafa. by altering the substance b. Unfaithfulness or Abuse of Confidence a. D. Court of Appeals. a simple action for recovery of the amount he had invested. By denying that the thing was received. et al. thing has been devoted for a purpose or use different from that agreed upon h. COMMITTING: SUBDIVISION N0. BUT if property is received for specific purpose and is misappropriated – estafa! j. By misappropriating and converting a. By misappropriating the thing received. Novation must take place before criminal liability was incurred or perhaps prior to the filing of the criminal information in court by state prosecutors f. There is likewise no estafa where the accused did not personally profit or gain from the misappropriation.
That above the signature of the offended party a document is written by the offender without authority to do so. That the paper with the signature of the offended party be in blank. fraudulent means must be made or executed prior to or 2. that is. domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft 3. converting. But contrary to such instructions and wishes. 4. he was induced to part with his money or property because of the false pretense. fraudulent act. If the unauthorized writings were done by a person other than the one to whom the owner of the signature delivered the paper in blank. or fraudulent means. fraudulent act. or causes damage to. 3. the offended party or any third person. 3. the crime committed by the third party is not estafa but falsification. . Note: If the paper with signature in blank was stolen – Falsification if by making it appear that he participated in a transaction when in fact he did not so participate F. the private individual allegedly in conspiracy with him may be held liable for estafa ESTAFA WITH ABUSE OF CONFIDENCE MALVERSATION Offenders are entrusted with funds or property and are continuing offenses Funds: always private Offender: private individual. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315) 1. Estafa m.220 Elements and Notes in Criminal Law Book II by RENE CALLANTA k. 2. or fraudulent means. the owner expects an immediate return of the thing to him – otherwise. In theft. When in the prosecution for malversation the public officer is acquitted. upon delivery of the thing to the offender. misappropriating E. with specific instructions to make entries thereon according to the wishes of the offended party. taking. fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. That the document so written creates a liability of. that there must be a false pretense. That the offended party should have delivered it to offender. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315) 1. Servant. or public officer not accountable Committed by misappropriating. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof l. the accused makes entries in writing which creates liabilities against the owner of the signature. That such false pretense. The offended party leaves a blank paper with his signature to another. denying having received money offenders are entrusted with funds or property and are continuing offenses Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating. The element of this estafa is also abuse of confidence. and it caused damage to the offended party. That the offended party must have relied on the false pretense.
There must be evidence that the pretense of the accused that he possesses power/influence is false The representation that accused possessed influence.221 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. it is indispensable that the element of deceit consisting in the false statement or fraudulent representation of the accused. or weight of anything pertaining to his art or business. no. without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. (Dela Cruz vs. False pretenses or fraudulent acts – executed prior to or simultaneously with delivery of the thing by the complainant 2. 2 of Article 315. Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2) Acts punished under paragraph (a) 1. . no matter how fraudulent and obnoxious it may appear. For the case to prosper against the accused. capacity to pay or goodwill in the business community. business or imaginary transactions. before or at least simultaneously with the delivery of the thing by the offended party. et al. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315) 1. That as a result thereof. Court of Appeals. qualifications. cannot serve as a basis for prosecution under this category of estafa. (Celino vs. be made prior to. agency. or issued a check in payment of an obligation. Using fictitious name. fineness.. Under paragraph (c) Pretending to have bribed any government employee. In the prosecution of estafa under Article 315. or By means of other similar deceits. Court of Appeals. RPC. the offended party suffered damage. property. 265 SCRA 299). That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check. the prosecution must prove two indispensable elements: deceit and damage to another. credit. Falsely pretending to possess power. 2(a). the crime committed is estafa. 3. So. The added requirement that such false statement or fraudulent representation constitutes the very motive or the only reason or cause which induces the offended party to part with the thing while they may be false representation after the delivery of the goods or the thing by the aggrieved party. Under paragraph (b) Altering the quality. influence. 2. Notes: 1. That the offender postdated a check. 163 SCRA 97) Credit means the ability to buy things or merchandise on the basis of one’s character. to deceive and inveigle the complainant into parting with his money must however be false to constitute deceit under No. such false statement or false representation. if it is used to deceive another and the deception is the principal reason for the delivery of the goods which results in damage to the offended party. G. 2.
there is estafa. Rose wants to purchase a bracelet and draws a check without insufficient funds. 1092) If a bouncing check is issued to pay a pre-existing obligation.prima facie evidence of deceit or failure to make good within three days after notice of. dishonor for lack of funds . Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank. (People vs.) (3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph The check must be genuine. The check is drawn to enter into an obligation. 73217-18. 21. 56 PHIL. 5. 22 which does not make any distinction as to whether a bad check is issued in payment of an obligation or to guarantee an obligation. or guaranties. VS. G. The jeweler sells her the bracelet solely because of the consideration in the check.222 Elements and Notes in Criminal Law Book II by RENE CALLANTA Notes: Note that this only applies if – (1) (2) The obligation is not pre-existing. Offender must be able to obtain something from the offended party by means of the check he issues and delivers The check must be issued in payment of an obligation. if the check was issued in payment of a promissory note which had matured and the check was dishonored.31) 2. (Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. If postdating a check issued as mere guarantee/promissory note – no estafa H. the drawer is liable under B. Exception: when the check is issued not in payment of an obligation. If the checks were issued by the defendant and he received money for them. then stopped payment and did not return the money. and he had an intention to stop payment when he issued the check. 1987) 4. For example. Canlas. 1. People. The check in question must be utilized by the offender in order to defraud the offended party. the crime is estafa thru falsification of a commercial document. Sept. If check was issued in payment of pre-existing debt – no estafa It is therefore essential that the check be issued in payment of a simultaneous obligation. (Que vs. O. the crime of estafa is not committed. The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. good faith is a defense. VILLAPANDO. 3. If the check is falsified and is cashed with the bank or exchanged for cash. Blg. It must not be promissory notes. P. So. If the check was issued without any obligation or if there is lack of consideration and the check is subsequently dishonored. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1: BP 22 . there is not estafa since the accused did not obtain anything by means of said check. (PP.
they are immaterial. Hence. In estafa under Article 315 (2) (d). . knowledge by the drawer of insufficient funds is not required. 4. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. When the check was presented after 90 days from date. 22. deceit and damage are material. That the check is dishonored by the drawee bank. 22. 3. That the check is made or drawn and issued to apply on account or for value. 22 is a crime against public interest. That the person who makes or draws and issues the check knows 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. 3. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit. 22: (1) Under both Article 315 (2) (d) and Batas Pambansa Blg. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF SECTION 1: BP 22 1. while in Batas Pambansa Blg. it is the issuance of the check. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency I. (3) (4) When is there prima facie evidence of knowledge of insufficient funds? There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored. Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. while in the latter. ordered the bank to stop payment. 22. 2. (2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. If the check is drawn for a pre-existing obligation. without any valid reason. while in Batas Pambansa Blg. knowledge by the drawer of insufficient funds is reqired. That a person makes or draws and issues any check. there is no double jeopardy. 2. In the estafa under Article 315 (2) (d). there is criminal liability if the check is drawn for non-pre-existing obligation. there is criminal liability only under Batas Pambansa Blg. 2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon. or would have been dishonored for the same reason had not the drawee.223 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. 22. When the maker or drawer -a. Exceptions 1. The gravamen for the former is the deceit employed. Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee.
For criminal liability to attach under Batas Pambansa Blg. none should be made. provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Each act of drawing and issuing a bouncing check constitutes a violation of B. 22. and (3) the fact that the check was properly dishonored for the reason stamped on the check. As a matter of public policy. 22. (2) the due presentment to the drawee for payment & the dishonor thereof. it is covered by Batas Pambansa Blg. Whatever be the agreement of the parties in respect . There must be concomitance. it was held that as long as instrument is a check under the negotiable instrument law. If the drawer has valid reasons for stopping payment. 22.” “mem”. 22. 22. CA.224 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. On issuance of a bouncing check The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. Blg. The drawer is liable under Batas Pambansa Blg. P. Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment The drawee must cause to be written or stamped in plain language the reason for the dishonor. it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds. 22. Batas Pambansa Blg. Even if the check is only presented to and dishonored in a Philippine bank. there is no estafa as damage had already been done. the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). there is no distinction as to the kind of check issued. The deceit must be prior to or simultaneous with damage done. there is no estafa. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check. A memorandum check is not a promissory note. decided April 18. 22 if the check bounces.P. it will be paid absolutely. Blg. that is. In estafa. 1991. thus there is no more defense to the prosecution under Batas Pambansa Blg. After this period. the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. it is conclusive that drawer knew of the insufficiency. makes the drawer liable under Batas Pambansa Blg. he cannot be held criminally liable under B. This is true in the case of dollar or foreign currency checks. 22 applies. Under Batas Pambansa Blg. In People v. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country. Where the law makes no distinction. If it is issued after parting with goods as in credit accommodation only. As long as it is delivered within Philippine territory. “memorandum” written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer. it is a check which have the word “memo. it was held that under Batas Pambansa Blg. the issuance of a worthless check is a public nuisance and must be abated. If the drawee bank received an order of stop-payment from the drawer with no reason. while under the Revised Penal Code. 22. it must be stated that the funds are insufficient to be prosecuted here. The mere issuance of any kind of check regardless of the intent of the parties. 22. a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. Batas Pambansa Blg. If the check is issued for a preexisting obligation. Nitafan. seller relied on check to part with goods. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. 22. whether the check is intended to serve merely as a guarantee or as a deposit. the Philippine courts have jurisdiction. But there is no prohibition against drawer from depositing memorandum check in a bank. In De Villa v.
Circular should not be given retroactive effect. a. restaurant. Using false pretense. citing People v. Obtaining food. no criminal liability should be incurred by the drawer. (Lazaro v. b. or resorting to deceitful means to evade payment. Blg. boarding house. 22 does not apply. or apartment house. a. or accommodation at a hotel. Acts punished under paragraph (e) 1. Abandoning or surreptitiously removing any part of his baggage in the establishment. when Circular No. RESTAURANTS ETC. 195 SCRA 722). If check bounces. But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. BY OBTAINING FOOD OR CREDIT AT HOTELS. 3. Failure to pay food or accommodation in a hotel. c. c. 1993. That the offender induced the offended party to sign a document. P. it is because bank has been remiss in honoring agreement. 22.. b. . K. Without paying therefor. accommodation. 12 of the Department of the Justice took effect. inn. With intent to defraud the proprietor or manager. lodging house. refreshment. Obtaining credit at any of the establishments. Cross checks do not make them non-negotiable and therefore they are within the coverage of B. refreshment. 1984. Court of Appeals. If presented for payment beyond the 90 day period and the drawer’s funds are insufficient to cover it. (De Villa vs. food. 22 where the check bounces. 2. 2. b. 1993) J. et al.225 Elements and Notes in Criminal Law Book II by RENE CALLANTA of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. there is no Batas Pambansa Blg. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS: (315) 1. 22. The law does not distinguish between foreign and local checks. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. That deceit be employed to make him sign the document. Alberto. a. 3. November 11. restaurant or inn usually gives rise to civil liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel. Without paying. That the offended party personally signed the document. the act shall be punished criminally as Estafa. After obtaining credit. Where check was issued prior to August 8. INNS. The check must be presented for payment within a 90-day period. and the drawer relied on the then prevailing Circular No. 22 violation. October 28. CA.
CONCEALING OR DESTROYING DOCUMENTS: (315) 1. What is punished under this Article is the damage to public interest. L. In order to commit a crime. concealed or destroyed any of them. or other evil motive. M. the offender must have the intention to defraud. and removes or destroys a document which constitute evidence in the said case. SELLING. RPC. ENCUMBERING. A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act. concealment or destruction of the court record should be done with the intent to defraud the victim. as a result of the defraudation. 2. Note: No intent to defraud – destroying or removal = malicious mischief When a lawyer. revenge. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION: (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document – falsification. That the offender had intent to defraud another. PRETENDING TO BE THE OWNER OF THE SAME: (316) N. but where the accused made representation to mislead the complainants as to the character of the documents estafa Under paragraph (b) Resorting to some fraudulent practice to insure success in a gambling game. . or funds contributed by corporations or associations for the general welfare. ELEMENTS OF SWINDLING (PAR. Syndicated Estafa. That the offender removed.1) BY CONVEYING. the removal. Temporary prejudice. and which is committed only by public officers. concealment or destruction of documents under Article 226 wherein fraud is not an element of the crime. office files. 3 (c) of Article 315. borrows the folder of the case. If the act of removing. That there be court records. samahang nayon or former’s association. ELEMENTS OF ESTAFA BY REMOVING. That prejudice be caused. This is distinguished from the crime of removal. pretending to verify a certain pleading in a case pending before a court. the crime committed is malicious mischief under Article 327. cooperatives. concealing or destroying results from hatred. The offender party being deprived of his money or property. transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks. said lawyer is guilty of Estafa under par. In other words. 2. 3. documents or any other papers. OR MORTGAGING ANY REAL PROPERTY.226 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. Disturbance in property right or 3.: 1.
such as a parcel of land or a building. 2. 6) BY SELLING. it was held that the act of using or disposing of another’s property as if it were one’s own. 4. That prejudice is thereby caused to the possessor or third person. is a misappropriation and conversion to the prejudice of the owner. ESTAFA Private individual was entrusted Intent to defraud INFIDELITY IN THE CUSTODY OF DOCUMENTS Public officer entrusted No intent to defraud O. That the offender should have executed an act of ownership (selling. ELEMENTS OF SWINDLING (PAR. ELEMENTS OF SWINDLING (PAR. MORTGAGING OR ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY: (316) . P. 192 SCRA 277. That said personal property is in the lawful possession of another. That the act be made to the prejudice of the owner or a third person.227 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. That the act of disposing of the real property be made to the damage of another. That the thing be immovable. 4. v. In Saddul Jr. That there must be express representation by the offender that the real property is free from encumbrance. 4. encumbering or mortgaging the real property). 3. resulting in the alteration of their condition or exclusion of the owner’s rights. ENCUMBRANCE BE NOT RECORDED: (316) 1. 2. 3. that the thing disposed of be real property. CA. ELEMENTS OF SWINDLING (PAR. That the offender who is not the owner of said property represented that he is the owner thereof. leasing. 3. That the offender wrongfully takes it from its lawful possessor. Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another. whether the encumbrance is recorded or not. ALTHOUGH SUCH 2. or of devoting it to a purpose or use different from that agreed upon. Under paragraph 4 – by executing any fictitious contract to the prejudice of another Under paragraph 5 – by accepting any compensation for services not rendered or for labor not performed Q. That the offender is the owner of personal property.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316) 1. 2) BY DISPOSING OF REAL PROPERTY AS FREE FROM ENCUMBRANCE. That the offender knew that the real property was encumbered.
in any other manner encumbers said real property. 2. That the offender takes advantage of the inexperience or emotions or feelings of a minor. or (c) to execute a transfer of any property right. It is limited to personal property since a minor cannot convey real property without judicial intervention. future-telling for profit or gain. That the consideration is (a) some loan of money (b) credit or (c) other personal property. The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles. S. who is the mortgagee of such property. mortage or encumbrance is (a) without express authority from the court. The property referred to in this article is not real property. 4. or (b) made before the cancellation of his bond. forecast. That the offender is a surety in a bond given in a criminal or civil action. the crime of swindling a minor under this article is not committed even if the offender succeeds in inducing the minor to deal with such real property since no damage or detriment is caused against the minor. ELEMENTS OF SWINDLING A MINOR: (317) 1. if what is involved is real property. mortgages. So. or (b) to give release. interpretation of dreams. 3. That the offender. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED ELEMENTS: 1. 2. telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner. 2. That he guaranteed the fulfillment of such obligation with his real property or properties. That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds. That the transaction is to the detriment of such minor. 3. not mentioned above. That personal property is already pledged under the terms of the chattel mortgage law. or. or (c) before being relieved from the obligation contracted by him. ELEMENTS OF OTHER DECEITS: (318) 1. sells or pledges the same or any part thereof. CHATTEL MORTGAGE Article 319 A. That he sells. 2.228 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. R. 4. That such sale. . or making forecasts. 3. done for profit or gain. Another form of deceit would be in the nature of interpreting dreams. That he induces such minor (a) to assume an obligation.
That he removes such mortgaged personal to any province or city other than the one in which it was located at the time of the execution of the mortgage. inundation d. That there is no written consent of the mortgagee or his executors. 5. shed or any other property is burned 2. that the removal is permanent. barn. That the burning was done at a time or under circumstances which clearly exclude all danger of the fire spreading B. It would be the mortgagor who is made liable if the personal property is transferred to the prohibited place. If the chattel mortgage is not registered. damaging the engine of the vessel f. explosion b. but PD 1744 revived Art 320) A. other similar effective means of destruction C. sinking or stranding of a vessel e. That an uninhabited hut. ELEMENTS OF BURNING ONE’S PROPERTY AS A MEANS TO COMMIT ARSON . The liability extends to third persons who shall knowingly remove the mortgaged to another city or province.229 Elements and Notes in Criminal Law Book II by RENE CALLANTA KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY ELEMENTS: 1. discharge of electric current c. that personal property is mortgaged under the chattel mortage law. 2. That the offender causes destruction of the property 2. 3. storehouse. That the destruction was done by means of: a. taking up rails from the railway track g. 4. ELEMENTS OF CRIME INVOLVING DESTRUCTION 1. destroying telegraph wires and posts or those of any other system h. That the offender knows that such property is so mortaged. That the value of the property burned does not exceed 25 pesos 3. ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES 1. there is no violation of Article 319 ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS (Note: PD 1613 expressly repealed or amended Arts 320-326. administration or assigns to such removal.
5. 1613 but rather. That the property burned is the exclusive property of the offender 2. 3482) When the burning of the property was done by the offender only to cause damage but the arson resulted to death of a person. or (c) the thing burned is a building in an inhabited place Palattao notes: Arson is defined as the intentional or malicious destruction of a property by fire. Arson is established by proving the corpus delicti. (Sec. No. The crime committed is still arson. (People vs. Villarosa. That (a) the purpose of the offender is burning it is to defraud or cause damage to another or (b) prejudice is actually caused. like gasoline. Death is absorbed in the crime of arson but the penalty to be imposed ranges from reclusion perpetua to death. 47 O. usually in the form of circumstancial evidence such as the criminal agency. the crime committed is murder. chemical or electronic contrivance designed to start a fire. No. serious physical injuries and damage to the property of another. 4600) There is no special complex crime of arson with homicide. It can also be in the form of electrical wires. (People vs. kerosene or other form of bustible materials which caused the fire. meaning the substance used. When the arson results from reckless imprudence and it leads to death. What matters in resolving cases involving intentional arson is the criminal intent of the offender. That the property belonging to another was burned or destroyed D. Paterno. There is such a crime as reckless imprudence resulting in the commission of arson. the penalty to be imposed shall not be for the crime of arson under P. That the offender set fire to or destroyed his own property 2. the crime committed is still arson because the death of the victim is a mere consequence and not the intention of the offender. G. Notes: If the crime of arson was employed by the offender as a means to kill the offended party. the penalty shall be based on Article 365 of the Revised Penal Code as a felony committed by means of culpa.D. The burning of the property as the means to kill the victim is what is contemplated by the word “fire” under Article 248 which qualifies the crime to murder. 54 O. mechanical. ashes or traces of such objects which are found in the ruins of the burned premises. P. .230 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. G. Legal effect if death results from arson. ELEMENTS OF ARSON 1. 1613) How arson is established. That the purpose of the offender in doing so was to commit arson or to cause a great destruction 3. D.
Obstruct performance of public functions. 4. That such act does not constitute arson or other crimes involving destruction. Otherwise. Spreading infection or contagious among cattle. No negligence Example. it would be theft if he gathers the effects of destruction. The cases of malicious mischief enumerated in this article are so-called qualified malicious mischief. or any other thing used in common by the public. Note: Qualified malicious mischief – no uprising or sedition (#1) Article 329 OTHER MISCHIEF . Malicious mischief – willful damaging of another’s property for the sake of causing damage due to hate. Damage to property of national museum or library. Killing the cow as revenge If no malice – only civil liability 3. Using poisonous or corrosive substances. It means not only loss but a diminution of the value of one’s property. revenge or other evil motive. Meaning of “damage” in malicious mischief. 2. The crime becomes qualified either because of the nature of the damage caused to obstruct a public. 5. 6. road. 3. 3. Notes: 1. But after damaging the thing. revenge or other evil motive 2. 4. he used it = theft There is destruction of the property of another but there is no misappropriation. That the offender deliberately caused damage to the property of another. Damage is not incident of a crime (breaking windows in robbery) Article 328 SPECIAL CASES OF MALICIOUS MISCHIEF 1. deforming or rendering it useless for the purpose for which it was made. It includes defacing. 2. registry.231 Elements and Notes in Criminal Law Book II by RENE CALLANTA MALICIOUS MISCHIEF Article 326 MALICIOUS MISCHIEF ELEMENTS: 1. That the act damaging another’s property be committed merely for the sake of damaging it. archive. or because of the kind of substance used to cause the damage. The crime is still malicious mischief because the offender has no intent to gain but derives satisfaction from the act because of hate. promenade. waterworks.
removing rails from tracks is destruction (art 324) 2. PUBLIC MONUMENTS OR PAINTINGS Article 332 EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Persons exempt from criminal liability 1. the minimum penalty is arresto menor or a fine of not more than 200 pesos shall be imposed on the offender. it will be a crime involving destruction under Article 324. 3. If the damages cannot be estimated. collision or other accident – a higher penalty shall be imposed Article 331 DESTROYING OR DAMAGING STATUES. The widowed spouse with respect to the property w/c belonged to the deceased spouse before the same passed into the possession of another 3. Brothers and sisters and brothers-in-law and sisters-in-law. 4. signal system of railways Notes: 1. if living together Offenses involved in the exemption 1. none – art 48 If the damage was intended to cause derailment only without any intention to kill. the crime committed will be murder under Article 248. circumstance qualifying the offense if the damage shall result in any derailment of cars. traction cables. telephone lines. telegraph. Spouse. electric wires. Swindling Malicious mischief . Theft ( not robbery ) 2. scattering human excrement b. not applicable when telegraph/phone lines don’t pertain to railways (example: for transmission of electric power/light) 3. murder – if derailment is means of intent to kill b. people killed as a result: a. Article 330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION done by damaging railways. Not included in 328 a. killing of cow as an act of revenge The offender is punished according to the value of the damage caused to the offended party. If the derailment is intentionally done to cause the death of a person. ascendants and descendants or relatives by affinity in the same line 2.232 Elements and Notes in Criminal Law Book II by RENE CALLANTA ELEMENTS: 1.
Parties to the crime not related to the offended party still remains criminally liable 3. concubine/paramour (spouse) d. Simple seduction (Art. 336). Adultery (Art. 338). Persons exempt include: a.233 Elements and Notes in Criminal Law Book II by RENE CALLANTA Notes: 1. 9. 3. 337). that pardon will only be valid if it comes before the prosecution starts. stepfather/mother (ascendants by affinity) b. The relationship between the spouses is not limited to legally married couples. abduction and acts of lasciviousness are the socalled private crimes. Acts of lasciviousness (Art. 2. But the moment the offended party has initiated the criminal complaint. Qualified seduction (Art. common law spouse (property is part of their earnings) Only the relatives enumerated incur no liability if the crime relates to theft (not robbery). 334). For the law gives the offended party the preference whether to sue or not to sue. estafa or malicious mischief. they must be living together at the time of the commission of the crime of theft. concubinage. 341). Corruption of minors (Art. 8. The moment the prosecution starts. They cannot be prosecuted except upon the complaint initiated by the offended party. and brothersin-law and sisters-in-law are concerned. Consented abduction (Art. the public prosecutor will take over and continue with prosecution of the offender. . the provision applies to live-in partners. 5. That is why under Article 344. adopted children (descendants) c. Forcible abduction (Art. 10. White slave trade (Art. Concubinage (Art. Exemption is based on family relations For the exemption to apply insofar as brothers and sisters. Third parties who participate are not exempt. TITLE ELEVEN CRIMES AGAINST CHASTITY Crimes against chastity 1. 2. 343). 342). and malicious mischief. 340). 4. 333). seduction. the crime has already become public and it is beyond the offended party to pardon the offender. Estafa should not be complexed with any other crime in order for exemption to operate. swindling. The law regards the privacy of the offended party here as more important than the disturbance to the order of society. 7. 6. if the offended party pardons the offender. 339). The crimes of adultery. Acts of lasciviousness with the consent of the offended party (Art.
. That the woman is married (even if marriage subsequently declared void) 2. Illustration: Madamme X is a married woman residing in Pasay City. it is a violation of the marital vow and secondarily. Joint criminal intent is not necessary. it paves the way to the introduction of a spurious child into the family. and yet the joint physical act necessary to constitute the adultery may be complete. there must be a joint physical act. 230) . the other innocent. 28 Phil. A husband committing concubinage may be required to support his wife committing adultery under the rule in pari delicto.234 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 333 ADULTERY ELEMENTS: 1. they stayed in a motel. Primarily. Notes: There are two reasons why adultery is made punishable by law. Adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery. although they were tried together. vs. He met a man. Adultery is not a continuing crime unlike concubinage. there must be a marriage although it be subsequently annulled. Even if it involves the same man. The acquittal of the woman does not necessarily result in the acquittal of her co-accused. Y. When they were in Bulacan. There is no adultery. there may be no such intent in the mind of the other party. if the marriage is void from the beginning. Serrano. One who invokes abandonment in the crime of adultery hypothetically admits criminal liability for the crime charged. So. Although the criminal intent may exist in the mind of one of the parties to the physical act. and another adultery in Dagupan City. That she has sexual intercourse with a man not her husband. S. After that. That as regards the man with whom she has sexual intercourses. he would be innocent insofar as the crime of adultery is concerned but the woman would still be guilty. She agreed to go with to Baguio City. each intercourse is a separate crime of adultery. et al. mitigated if wife was abandoned without justification by the offended spouse (man is entitled to this mitigating circumstance) Abandonment without justification is not exempting but only a mitigating circumstance. where they went to a motel and had sexual intercourse. he must still be included in the complaint or information. If after preliminary investigation. 3. the former would have to be acquitted and the latter found guilty. then he could simply file the case against the woman. if the man had no knowledge that the woman was married. This is so because whether he knows the woman to be married or not is a matter of defense and its up to him to ventilate that in formal investigations or a formal trial. the public prosecutor is convinced that the man did not know that the woman is married. at the beginning. supposedly to come back the next day. they proceeded again and stopped at Dagupan City. There are two counts of adultery committed in this instance: one adultery in Bulacan. In order to constitute adultery. For adultery to exist. having sexual intercourse there. Adultery is a crime not only of the married woman but also of the man who had intercourse with a married woman knowing her to be married. Even if the man proves later on that he does not know the woman to be married. at Roxas Boulevard. (U. 1. One may be guilty of the criminal intent. he must know her to be married.
Muguerza. Rep. 621).235 Elements and Notes in Criminal Law Book II by RENE CALLANTA While abandonment is peculiar only to the accused who is related to the offended party and must be considered only as to her or him as provided under Article 62.G. 36 Phil. Similarly. That the man must be married. In the case of People vs. Feliciano. a license for her to commit adultery. This is a crime committed by the married man. (58 Phil. 194) 2. it includes the woman who had a relationship with the married man. Avelino. there is only one act committed and consequently both accused are entitled to this mitigating circumstance. Such agreement bars the husband from instituting a criminal complaint for adultery. Pontio Guinucud. a private agreement was entered into between the husband and wife for them to separate from bed and board and for each of them to go for his and her own separate way. the offended spouse must not have sexual intercourse with the adulterous wife since an act of intercourse subsequent to the adulterous conduct is considered as implied pardon. the Court ruled that while a private agreement between the husband and wife was null and void. in the crime of adultery. judicially speaking. Their love affair ultimately embroiled the spouses’ conservative and reputable families in a human drama exposed in legal battles and whispers of unwanted gossips. the husband.. That as regards the woman she must know him to be married. . redounds to the detriment of the feelings of honest persons and gives occasions to the neighbor’s spiritual damage and ruin With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution. Supp. Cohabiting with her in any other place. 40 O. 13 C.” (U. attempted: caught disrobing a lover There is no frustrated adultery because of the nature of the offense. nonetheless. et al. Thereafter. 3. 753) Article 334 CONCUBINAGE ELEMENTS: 1. The legal tenet has been and still is “circumstancial and corroborative evidence as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will bring about conviction for the crime. 2. Note: “Scandal” consists in any reprehensible word/deed that offends public conscience. 1079) It is seldom the case that adultery is established by direct evidence. After filing the complaint for adultery and while the case is pending trial and resolution by the trial court. S. Having sexual intercourse under scandalous circumstances with a woman who is not his wife. c. paragraph 3. 11. That he committed any of the following acts: a. the same was admissible proof of the express consent given by the condescending husband to the prodigal wife. In dismissing the complaint.A. et al. (People vs.. vs. Keeping a mistress in the conjugal dwelling. (People vs. b. the wife Rosario Tagayum lived with her coaccused Pontio Guinucud in a nearby barangay.
The woman however must be brought into the conjugal house by the accused husband as a concubine to fall under this article. 904). The conjugal dwelling is the house of the spouse even if the wife happens to be temporarily absent therefrom. (C.G. The reason given for this is that when the wife commits adultery. vs. This is the reason why in the former crime the penalty is higher than the latter. it is obvious that the sexual intercourse done by the offenders was not under scandalous circumstances. there is a probability that she will bring a stranger into the family. If the charges consist in keeping a mistress in the conjugal dwelling. Rape This has been repealed by Republic Act No. (U. 2. there is no need for proof of sexual intercourse. the same will not be sufficient to convict the accused of concubinage since the law clearly states that the act must be one of those provided by law. Article 336 ACTS OF LASCIVIOUSNESS ELEMENTS: 1. et al. (People vs.G.S. Hilao. then such association is sufficient to constitute cohabitation.) 52 O. concubinage is a continuing crime. When spies are employed to chronicle the activities of the accused and the evidence presented to prove scandalous circumstances are those taken by the detectives. CA 57 O. See Article 266-A. For the existence of the crime of concubinage by having sexual intercourse under scandalous circumstances. keeping of a mistress in a townhouse procured and furnished by a married man who does not live or sleep with her in said townhouse does not constitute concubinage since there is no cohabitation. That the offender commits any act of lasciviousness or lewdness. Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child.A.236 Elements and Notes in Criminal Law Book II by RENE CALLANTA It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows. if a married man’s conduct with a woman who is not his wife was not confined to occasional or transient interview for carnal intercourse but is carried n in the manner of husband and wife and for some period of time. If the husband commits concubinage.. Unlike adultery. this probability does not arise because the mother of the child will always carry the child with her. That it is done under any of the following circumstances: . if the co-accused was voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being a relative of the complaining wife. Zuniga. it is clearly known that the child is a stranger. So even if the husband brings with him the child. The rule is that. and the additional fact of the birth certificate of a child showing the accused to be the father of the child with the alleged cocubine. Likewise. her illicit relations with the accused husband does not make her a mistress. 51) Causal sexual intercourse with a woman in a hotel is not concubinage. the latter must be imprudent and wanton as to offend modesty and sense of morality and decency. Thus. (People vs. Campos-Rueda. It is only when a married man has sexual intercourse with a woman elsewhere that “scandalous circumstances” becomes an element of crime. 8353 or the Anti-Rape Law of 1997. Article 335. 2497) If the evidence of the prosecution consists of a marriage contract between the offender and the offended party. 35 Phil.
The crime committed. if his participation amounts to performing all the acts of execution. by using force or intimidation. Otherwise. is guilty of Act of Lasciviousness under this Article as the victim is below twelve year old. 3. the felony is necessarily produced as a consequence thereof. the intention of the wrongdoer is not very material. a domestic. a househelp. The motive that impelled the accused to commit the offense is of no importance because the essence of lewdness is in the act itself. is acts of lasciviousness under this article. indicating a clear intention to lie with the offended party. a priest. or being over 12 years of age. The demarcation line is not always easy to determine but in order to sustain a conviction for acts of lasciviousness. a teacher or a guardian. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction. 336) can be committed by either sex unlike in Acts of Lasciviousness with Consent under Article 339. Article 336. the crime committed as Attempted Rape. the crime would have been Rape. or there was a deceitful promise of marriage which never would really be fulfilled. the acts of lasciviousness must be committed under any of the circumstances that had there been sexual intercourse. when the offended party is deprived of reason or otherwise unconscious. the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority. the offended party may be a man or a woman. or otherwise unconscious. In the crime of acts of lasciviousness. when the act performed with lewd design was perpetrated under circumstances which would have brought about the crime of rape if sexual intercourse was effected. This means that the offended party is either – (1) (2) under 12 years of age. and (2) under Article 339. the lascivious acts were committed on him or her through violence or intimidation. SEDUCTION . Acts of Lasciviousness with the Consent of the Offended Party: Under this article. To be guilty of this crime however. that is. Article 339. when the offended party is under 12 years of age. or b. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. Thus. it is essential that the acts complained of be prompted by lust or lewd designs and the victim did not consent to nor encouraged the act. rape or adultery because no matter how far the offender may have gone towards the realization of his purpose. Intent to rape is not a necessary element of the crime of acts of lasciviousness. That the offended party is another person of either sex. or while the offender party was deprived of reason. 1. Always remember that there can be no frustration of acts of lasciviousness.237 Elements and Notes in Criminal Law Book II by RENE CALLANTA a. and had sexual intercourse been possible and done. Acts of Lasciviousness Under this article. Note that there are two kinds of acts of lasciviousness under the Revised Penal Code: (1) under Article 336. a lesbian who toyed with the private part of an elevenyear-old girl who enjoyed it since she was given $50 dollars before the act. the victim is limited only to a woman. or c. Where circumstances however are such. This crime (Art. there would be no crime of attempted rape. 2. the act would have been Rape.
) 2. Illustration: . in any capacity. among others. That there is abuse of authority. there can be no crime of Seduction as she is not a virgin. 3. the latter is still to be considered a virgin (U. person in public authority. Seduction of a virgin over 12 and under 18 years of age by certain persons. Although in qualified seduction.S. brother who seduced his sister b. is not to be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of a good reputation. Casten. priest. Thus. regardless of her age or reputation (incestuous seduction) Elements: 1. it is not necessary that the woman be a virgin. Seduction of a sister by her brother or descendant by her ascendant. It is enough that she is of good repute.That the offender has sexual intercourse with her. It means that the offended party has not had any experience before. For purposes of qualified seduction. person who. confidence or relationship on the part of the offender ( person entrusted with education or custody of victim. domestic Those who abused their relationship: a. 34 Phil. priest. virginity does not mean physical virginity. guardian c.That she must be over 12 and under 18 years of age. if the offended party is a descendant or a sister of the offender – no matter how old she is or whether she is a prostitute – the crime of qualified seduction is committed. That the offended party is a virgin. the age of the offended woman is considered. that the woman is a virgin in qualified seduction. 3. This crime also involves sexual intercourse. while in simple seduction.238 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 337 QUALIFIED SEDUCTION OF A VIRGIN Two classes of qualified seduction: 1. ascendant who seduced his descendant 2. The virginity referred to here. such as a person in authority. 4. is entrusted with the education or custody of the woman seduced Those who abused the confidence reposed in them: a. Those who abuse their authority: a. teachers etc and 2. But if it was established that the girl had a carnal relations with other men. priest b. vs. servant) Persons liable: 1. teacher d. The offended woman must be over 12 but below 18 years. (presumed if she unmarried and of good reputation. 808). The distinction between qualified seduction and simple seduction lies in the fact. when the accused claims he had prior intercourse with the complainant. house servant c. persons in public authority b.
regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. 4. An essential element of a qualified seduction is virginity (doncella). she remains a virtuous woman even if physically she is no longer a virgin. the crime committed is rape. Where the offended party is below 12 years of age. single or widow. 2. Deceit generally takes the form of unfulfilled promise to marry. 3. Article 338 SIMPLE SEDUCTION ELEMENTS: 1. It is a condition existing in a woman who has had no sexual intercourse with any man. But one who is charged with rape cannot be convicted of qualified seduction under the same information. 69 SCRA 144) Even if the woman has already lost her virginity because of rape. That she must be of good reputation.239 Elements and Notes in Criminal Law Book II by RENE CALLANTA If a person goes to a sauna parlor and finds there a descendant and despite that. That the offender has sexual intercourse with her. If the offended party is married and over 12 years of age. the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction. It includes all those persons residing with the family and who are members of the same household. The term domestic refers to a person usually living under the same roof with the offended party. (People vs. taking into account the abuse of confidence on the part of the agent. the crime committed will be adultery. It does not refer to the condition of the hymen as being intact. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. The promise of marriage must serve as the inducement. the crime of qualified seduction is committed. A domestic should not be confused with a house servant. Abuse of confidence here implies fraud. That the offended party is over 12 and under 18 years of age. The woman must yield on . This is because in such a case. had sexual intercourse with her. In the case of a teacher. That it is committed by means of deceit. regardless of her reputation or age. The fact that the offended party gave her consent to the sexual intercourse is not a defense. It is enough that she is enrolled in the same school. Deceit is not necessary in qualified seduction. Lack of consent on the part of the complainant is not an element of the crime. Ramirez. A domestic is not necessarily a house servant. One who is charged with qualified seduction can be convicted of rape. it is not necessary that the offended woman be his student. regardless of whether the victim is a sister or a descendant of the offender. in the eyes of the law.
The crime of acts of lasciviousness under Article 339 is one that is done with the consent of the offended party who is always a woman. Sec. 6. The lewd acts committed against her is with her consent only because the offender took advantage of his authority. that the offender commits acts of lasciviousness or lewdness. virginity is not essential in this crime. Article 339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ELEMENTS: 1. or deceit. . Hernandez. This act may now be considered Rape under R. 109). otherwise. he is guilty of Simple Seduction. or after the woman had yielded her body to the man by mutual consent will not render the man liable for simple seduction. or a sister or descendant regardless of her reputation or age. Here. 2 par. or the employment of deceit. vs. there was deceit employed. the offense would have been Seduction. The offended woman must be under 18 but not less than 12 years old. or there was abuse of confidence. 109) Where the accused failed to have sex with this sweetheart over twelve (12) but below eighteen (18) years old because the latter refused as they were not yet married. but had there been sexual intercourse. If the woman is married. the crime is statutory rape. the object of the crime can either be a woman or a man. A promise of material things in exchange for the woman’s surrender of her virtue does not constitute deceit.240 Elements and Notes in Criminal Law Book II by RENE CALLANTA account of the promise of marriage or other forms of inducement.S. or the offender is related to the victim. and the accused procured the performance of a fictitious marriage ceremony because of which the girlfriend yielded. 29 Phil. What is required is that the woman be unmarried and of good reputation. 2. (People vs. (U. that the offender accomplishes the acts by abuse of authority.A. A promise of marriage made by the accused after sexual intercourse had taken place. and no carnal knowledge was had. confidence. 29 Phil. When the acts of lasciviousness is committed with the use of force or intimidation or when the offended party is under 12 years of age. If a woman under 18 years of age but over 12 agrees to a sexual intercourse with a man who promised her precious jewelries but the man reneges on his promise. (Luis B. there is no seduction that the woman is of loose morals. That the acts are committed upon a woman who is virgin or single or widow of good reputation. 8353. Reyes) Promise of marriage must precede sexual intercourse. 3. Simple seduction is not synonymous with loss of virginity. Unlike in qualified seduction. Where the acts of the offender were limited to acts of lewdness or lasciviousness. relationship. Hernandez. the crime will be adultery. he is guilty of Acts of Lasciviousness under this article. under 18 years of age but over 12 years.
4056) ABDUCTION . It is not the unchaste act of the minor which is being So. abuse of authority or because of the existence of blood relationship. Engaging in the business of prostitution 2. Enlisting the service of women for the purpose of prostitution The person liable under Article 341 is the one who maintains or engages in the trade of prostitution. a mere proposal to promote or facilitate the prostitution or of a minor is sufficient to consummate the crime. corruption law punishes is the act of pimp (bugaw) who facilitates the of a minor. In the first situation. (People vs.G. or with the consent of the offended party. It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of promoting or facilitating the prostitution or corruption of said minor and that he acted in order to satisfy the lust of another. A white slave is a woman held unwillingly for purposes of commercial prostitution. In these two cases. Young minor should enjoy a good reputation. the women pay the maintainer or owner of a certain amount in this case. Apparently. A white slaver on the other hand is one engaged in white slave traffic. abuse of confidence. the crime would either be qualified seduction or simple seduction if the offender succeeds in having sexual intercourse with the victim. For each intercourse. Profiting by prostitution 3. A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to constitute violation of this article. the maintainer of owner of the bar or saloon is liable for white slave trade. there is consent but the same is procured by the offender through the employment of deceit. procurer of white slaves or prostitutes. What the corruption punished. a prostitute above 12 and under 18 years of age cannot be the victim in the crime of corruption of minors. 56 O. Article 341 WHITE SLAVE TRADE Acts penalized: 1. Go Lo. The most common way of committing this crime would be through the maintenance of a bar or saloon where women engage in prostitution. there must be no sexual intercourse. Article 340 CORRUPTION OF MINORS Act punishable: By promoting or facilitating the prostitution or corruption of persons underage to satisfy the lust of another It is not required that the offender be the guardian or custodian of the minor.241 Elements and Notes in Criminal Law Book II by RENE CALLANTA In the commission of the acts of lasciviousness either by force or intimidation. or the acts performed are short of sexual intercourse.
where the man cannot possibly give the woman the benefit of an honorable life. whether Forcible or Consented. It is the taking away of any woman against her will. A woman is carried against her will or brought from one place to another against her will with lewd design. for the purpose of carrying her to another place with intent to marry or corrupt her. and the victim was deprived of her liberty. The evil purpose of the offender may be established or inferred from the overt acts of the accused. forcible abduction Forcible abduction defined. RPC. in the crime of Abduction. which is essential to the crime of abduction through violence refers to the intention to abuse the abducted woman. That the abduction is against her will.242 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 342 FORCIBLE ABDUCTION ELEMENTS: 1. That the person abducted is any woman. there is no sexual intercourse. qualified seduction of sister/descendant. If the offended woman is under 12 years old. the carrying of the woman is characterized with lewd design and would bring about the crime of abduction and not kidnapping. The element of lewd designs. the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender. the crime is forcible abduction and not consented abduction. but the same must be with lewd designs. It is necessary to establish the unchaste design or purpose of the offender. Where the offended woman is below the age of consent. But it is sufficient that the intent to seduce the girl is present. If the element of lewd design is present. Lewd designs may be demonstrated by the lascivious acts performed by the offender on her. That the abduction is with lewd designs. regardless of her age. acts of lasciviousness. if the victim is subjected to this. 2. or reputation. Unlike in Rape and Seduction. from her house or the place where she may be. The acts are limited to taking away from a place the victim. Where lewd design was not proved or shown. then a crime of rape is further committed and a complex crime of forcible abduction with rape is committed. the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. the crime may be illegal detention. all that man promised are just machinations of a lewd design and. Since this crime does not involve sexual intercourse. even if she consented to the abduction. otherwise. Forcible abduction is committed and not consented abduction. the carrying of the woman would qualify as abduction. . civil status. even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage. the crime is Kidnapping with Serious Illegal Detention under this Article 267. with unchaste design manifested by kissing and touching the victim’s private parts. that is. Note: Sexual intercourse is NOT necessary Crimes against chastity where age and reputation of victim are immaterial: rape. therefore. If such intention is lacking or does not exist. This is also true if the woman is deprived of reason and if the woman is mentally retardate. 3. In other words. it would amount to kidnapping.
243 Elements and Notes in Criminal Law Book II by RENE CALLANTA Lewd design does not include sexual intercourse. If the detention is only incidental. the crime committed is murder. Jose. When such a situation arises. and the forcible abduction was resorted to by the accused in order to facilitate the commission of the rape. 210 SCRA 206). after solicitation or cajolery from the offender. So. 3. If the main object of the offender is to rape the victim. solely for the purpose of killing him and not detaining him for any legal length of time. (People vs. But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him. The virginity of the complaining witness is not a determining factor in forcible abduction. (People vs. illicit criminal relations with the person abducted need not be shown. it should be treated as a separate offense. The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. the crime committed is forcible abduction. et al. In this case. . Ong. Abduction is a crime against chastity while kidnapping is a crime against personal liberty. it was held that only grave coercion was committed and not illegal detention. Otherwise. the crime committed is kidnapping. When the violent taking of a woman is motivated by lewd design. the former being a necessary means to commit the latter. the accused should be charged with forcible abduction with rape. The intent to seduce a girl is sufficient. The subsequent two (2) other sexual intercourse committed against the will of the complainant would be treated as independent separate crimes of Rape. 2. the same should be considered as absorbed. 37 SCRA 450) If the accused carried or took away the victim by means of force and with lewd design and thereafter raped her. the crime committed is illegal detention. the taking by the husband of his wife against her will constitutes grave coercion. In order to demonstrate the presence of the lewd design. the crime is Forcible Abduction with Rape. we should consider the application of Article 48 on complex crimes. 62 SCRA 174) True intention of the offender should be ascertained. the crime committed is forcible abduction. When the kidnapping is without lewd designs. That the offended party must be a virgin. then the crime committed is only rape. (People vs. if sexual intercourse is committed against the offended party after her forcible abduction. That she must be over 12 and under 18 years of age.. Article 343 CONSENTED ABDUCTION ELEMENTS: 1. 83 Phil. Distinction between forcible abduction and illegal detention: When a woman is kidnapped with lewd or unchaste designs. But if the motive of the offender is to deprive the woman of her liberty. If there is a separation in fact. Toledo. (People vs. 777) Where the victim was taken from one place to another. That the taking away of the offended party must be with her consent. the offender commits another crime separate and distinct from forcible abduction. Bacalso. Forcible abduction must be distinguished from the crime of kidnapping.
she consented to her seduction. The view adopted in cases of similar nature is to the effect that where more than one person has effected the forcible abduction with rape. offended party by her parents grandparents guardians in the order in which they are named above The crimes of adultery and concubinage must be prosecuted upon a complaint signed by the offended spouse. Actual sexual intercourse with the woman is not necessary. the original ruling in the case of People v. the offended party must include both guilty parties if they are both alive. all the rapes are just the consummation of the lewd design which characterizes the forcible abduction and. The deceit which is termed by the law as solicitation or cajolery maybe in the form of honeyed promises of marriage. If the previous sexual intercourse was the result of the crime of rape. it is not necessary that the young victim. rape or acts of lasciviousness must be prosecuted upon complaint signed by: a. Jose is that there would be one count of forcible abduction with rape and then each of them will answer for his own rape and the rape of the others minus the first rape which was complexed with the forcible abduction. ABDUCTION RAPE AND ACTS OF LASCIVIOUSNESS 1. abduction. In consented Abduction. Where several persons participated in the forcible abduction and these persons also raped the offended woman.244 Elements and Notes in Criminal Law Book II by RENE CALLANTA 4. The purpose of the law on consented abduction is to punish the offender for causing disgrace and scandal to the family of the offended party. Virginity may be presumed from the fact that the offended party is unmarried and has been leading moral life. In consented abduction. Article 344 PROSECUTION OF ADULTERY. or honeyed promises of marriage to induce the girl to escape from her home. He must however use solicitation. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. the taking away of the virgin must be with lewd design. if the same is established. therefore. . If the virgin in under 12 years old. SEDUCTION. the intercourse committed with her against he will and over her violent objection should not render her unchaste and a woman of bad reputation. it is sufficient that he was instrumental in her leaving the house. In the complaint. Virginity or maidenhood should not be understood in such a matter of fact as to completely exclude a woman who has had previous sexual intercourse. d. CONCUBINAGE. cajolery or deceit. This ruling is no longer the prevailing rule. the crime committed is forcible abduction because of the theory that a child below 12 years of age has no will of her own. then it will be considered as a strong evidence to prove lewd design. c. Seduction. The law does not punish the offender for the wrong done to the woman since in the eyes of the law. However. there should only be one forcible abduction with rape. (a virgin over twelve and under eighteen) be personally taken from her parent’s home by the accused. b. That the taking away of the offended party must be with lewd designs.
The same can be done either by the father or the mother. the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage. not only of the principal but also of the accomplice and accessory. Pardon . she alone can file the complaint (People vs. In the case of a private crime. And so. and acts of lasciviousness. concubinage and acts of lasciviousness. (U.. This rule does not apply in case of multiple rape In the crimes involving rape.245 Elements and Notes in Criminal Law Book II by RENE CALLANTA Distinguished between a private crime and a public crime. the marriage would appear as having been contracted only to avoid the punishment. But marriages must be in good faith. People vs. Avila. 60 Phil. while consent refers to the offense prior to its commission. et al. If this legal requirement is not observed. Villorente. et al. he already left her. accessories-after-the-fact. (See the cases of People vs. abduction. (People vs. Therefore. vs. When the prosecution is already commenced or initiated. pardon refers to the offense after its commission. it must include both accused. Formento. the same cannot be prosecuted de oficio. But it must come before the institution of the criminal action.. adultery. 25 Phil 171 ) The word guardian as mentioned in the law refers to the guardian appointed by the court. (People vs. the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability. meaning it can be prosecuted by any person interested to prosecute the same. Schnekenburger. The accusation is usually initiated with the filling of an information. 192 SCRA 635) To be effective. seduction. However. the parents can do it for her. Mandia. is a bar to prosecution. Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender. that pardon must come before the prosecution is commenced.S. meaning it cannot be initiated by any person except the offended party. In other words. This applies as well to the accomplices. 73 Phil. 210 SCRA 647. the offended party gives his or her consent to the future infidelity of the offending spouse. If the offended party is of age and is in complete possession of her mental faculties. Pardon in crimes against chastity. the marriage by the offender with the offended woman generally extinguishes criminal liability. These are crimes which are initiated with the filing of an information. The law requires that the complaint must be initiated by the said persons in order that they are named or enumerated in the article. A public crime is one which can be prosecuted de officio. 60 Phil. pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same. Gariboso. 413) Note: Marriage of the offender with the offended party extinguishes the criminal action or remit the penalty already imposed upon him. the case should be dismissed for lack of jurisdiction over the subject matter. 434) What is the meaning of “shall have consented” which bars the institution of criminal action for adultery or concubinage? The term “consent” has reference to the tie prior to the commission of the crime. Even with that marriage. These are the crimes against chastity such as seduction. How about pardon declared by the offended party during the trial of the case? Such a declaration is not a ground for the dismissal of the case. 372) If the offended party cannot sign the complaint because of her tender age.
A. The crimes of adultery and concubinage are also included. Simulation of births. This obligation to support the child may be true even if there are several offenders. if the offended woman had given birth to the child. The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone. Under Article 2219 of the Civil Code. as being held liable for civil damages under Article 345. unless the law should prevent him from doing so 3. among the liabilities of the offender is to support the child. the complaint of the offended party is still necessary before such case for libel or oral defamation may proceed. Riotes. Article 346 LIABILITY OF ASCENDANTS. the law only mentioned the crimes of rape. in case a child is born.. 49 O. because the indignity or dishonor brought about by these crimes affects more the offended party than social order. 347). (People vs. As to whether all of them will acknowledge the child. SEDUCTION OR ABDUCTION 1. In every case to support the offspring The civil liability of the adulterer and the concubine is limited to indemnity for damages caused to the offended spouse. It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party. the trial court should not provide in its sentence that the accused. If any slander or written defamation is made out of any of these crimes. This should only be proper when there is a probability that the offended woman could give birth to an offspring. OTHER PERSONS ENTRUSTED WITH CUSTODY OF OFFENDED PARTY WHO BY ABUSE OF AUTHORITY OR CONFIDENCE SHALL COOPERATE AS ACCOMPLIES TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS Crimes against the civil status of persons 1. It has been held that where the woman was the victim of the said crime could not possibly conceive anymore. abduction.G.3403). rape or other lascivious acts. . should support the child. In the crimes of rape. C. moral damages may be recovered in seduction. that is a different question because the obligation to support here is not founded on civil law but is the result of a criminal act or a form of punishment. All these private crimes – except rape – cannot be prosecuted de officio. The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public. There is likewise no mention of the offender in the crime of acts of lasciviousness.246 Elements and Notes in Criminal Law Book II by RENE CALLANTA is a matter of defense which the accused must plead and prove during the trial. To acknowledge the offspring. Article 345 CIVIL LIABILITY OF PERSONS GUILTY OF RAPE. To idemnify the offended women 2. substitution of one child for another and concealment or abandonment of a legitimate child (art. seduction and abduction. abduction and seduction. The law does not mention the adulteress in the crime of adultery such that only the adulterer shall be held civilly liable.
Illustration: People who have no child and who buy and adopt the child without going through legal adoption. Marriage contracted against provisions of law (Art. SUBSTITUTION OF ONE CHILD FOR ANOTHER. Questions & Answers 1. 350). 3. 348). AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD Acts Punished: 1. what then is the crime committed? . Requisites: The child must be legitimate The offender conceals or abandons such child The offender has the intent to cause the child to lose its civil status Elements of Simulation of Birth 1. Premature marriages (Art. Simulation of births 2. Article 347 SIMULATION OF BIRTHS. the crime is not falsification on the part of the parents and the real parents but simulation of birth. If the parents are parties to the simulation by making it appear in the birth certificate that the parents who bought the child are the real parents. What crime is committed by the woman? The crime committed is abandoning a minor under Article 276. 2. then simulation of birth is committed. Bigamy (Art. 3.Child is baptized or registered in the Registry of birth as hers 2. Substitution of one child for another 3.Child loses its real status and acquiires a new one 3. 349).Actor’s purpose was to cause the loss of any trace as to the child’s true filiation Simulation of birth takes place when a woman pretends to be pregnant when in fact she is not and on the day of the supposed delivery. 5. 2. If the child is being kidnapped and they knew that the kidnappers are not the real parents of their child. 4. Performance of illegal marriage ceremony (Art. Usurpation of civil status (Art. 352). Suppose that the purpose of the woman is abandoning the child is to preserve the inheritance of her child by a former marriage.247 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. she takes the child of another and declares the child to be her own. This is done by entering in the birth certificate of the child that the offender is the alleged mother of the child when in fact the child belongs to another. A woman who has given birth to a child abandons the child in a certain place to free herself of the obligation and duty of rearing and caring for the child. Concealing or abandoning any legitimate child with the intent to cause such child to lose its civil status 1. 351). 6.
in case his or her spouse is absent. 30 Phil. duties. 2.248 Elements and Notes in Criminal Law Book II by RENE CALLANTA The crime would fall under the second paragraph of Article 347. See US v. Consequently. To be liable for usurpation of civil status. 4. the absent spouse could not yet be presumed dead according to the civil code. Article 348 USURPATION OF CIVIL STATUS Committed by a person who represents himself as another and assumes the filiation or rights pertaining to such person 1. Capillo.That he contracts a second or subsequent marriage. 3. It seems that the term "civil status" includes one's profession. the accused should be convicted since until and unless annulled. 2. the bond of matrimony remains or is maintained. 3. as the act of the offender is an attempt against the life of the child.That the offender has been legally married. What crime was committed by the person who left it in the forest? It is attempted infanticide. was taken to and left in the midst of a lonely forest. 3. one day after his birth. Need for judicial declaration of nullity The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage.That the second or subsequent marriage has all the essential requisites for validity. The crime does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party PUBLIC CRIME • For the crime of bigamy to prosper the first marriage must be valid. or the parental or conjugal rights of another Usurpation is committed by assuming the filiation or parental (when maternal.That the marriage has not been legally dissolved or. such nullity of the marriage is not a defense in a charge of bigamy. paternal or conjugal) claim of another.. 349. Notes: There must be criminal intent to enjoy the civil rights of another by the offender knowing he is not entitled thereto The term "civil status" includes one's public station. Suppose a child. Notes: 1. • • . capacities and incapacities which determine a person to a given class. or the rights. et al. the offender must have the intent to enjoy the rights arising from the civil status of another. If the first marriage is void from the beginning. and he was found by a hunter who took him home. The purpose of the woman is to cause the child to lose its civil status so that it may not be able to share in the inheritance. when raised as a defense. Committed by asuming the filiation. Circumstances qualifying the offense: penalty is heavier when the purpose of the impersonation is to defraud the offended party or his heirs Article 349 BIGAMY ELEMENTS: 1.
or such premature marriages. as plaintiff in the civil case prevails. The language of Article 349 indicates the crime of bigamy is committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. Article 350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS . 22 SCRA 731. et al. or such marriage which was solemnized by one who is not authorized to solemnize the same. 5. 7. the second spouse is not necessarily liable. The first is an offense against civil status. and his first marriage is annulled. (Roco. Cinco. 735) The civil case for annulment of the first marriage does not pose a prejudicial question as to warrant the suspension of the trial and proceeding in the criminal case for bigamy. knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latter’s marriage is still valid and subsisting. he contracts a subsequent marriage. The offender must have a valid and subsisting marriage.249 Elements and Notes in Criminal Law Book II by RENE CALLANTA 2. she will be liable for the crime of bigamy but only as an accomplice. There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage 4. 68 O. (Landicho vs. Failure to exercise due diligence to ascertain the whereabouts of the 1st wife is bigamy through reckless imprudence A judicial declaration of the nullity of a marriage void ab initio is now required The language of the law is clear when it declared “before the former marriage has been legally dissolved. One who.2952) 6. Relova. such pronouncement has no retroactive effect as to exculpate him in the bigamy case. 3. A simulated marriage is not marriage at all and can be used as a defense for bigamy Good faith is a defense in bigamy. Parties to a marriage should not be permitted to judge its nullity. although not yet married before. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law. One who vouches that there is no legal impediment knowing that one of the parties is already married is an accomplice Distinction between bigamy and illegal marriage: Bigamy is a form of illegal marriage. In the crime of bigamy.” The Supreme Court said the even if the accused. Despite the fact that the marriage is still subsisting. for only competent courts have such authority..G. which may be prosecuted at the instance of the state. The test is not whether the defendant has already been tried for the same act. but whether he has been put in jeopardy for the same offense. et al. One convicted for bigamy may be prosecuted for concubinage as both are distinct offenses One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. If the second wife knew of the previous marriage of the accused. and may be prosecuted only at the instance of the offended party. the second is an offense against chastity..
Marriages contracted against the provisions of laws 1. 4. 2. The marriage was in disregard of a legal impediment. because of the probability that there might be a confusion regarding the paternity of the child who would be born. 5. The marriage is contracted knowing that the requirements of the law have not been complied with or in disregard of legal impediments. if she was pregnant at the time of his death 2. The marriage does not constitute bigamy. 2. The legal capacity of the contracting parties. and 4. A woman whose marriage having been dissolved or annulled. married before her delivery or within 301 days after the legal separation The Supreme Court has already taken into account the reason why such marriage within 301 days is made criminal. Their consent freely given. One where the consent of the other was obtained by means of violence. Marriage solemnized by a minister or priest who does not have the required authority to solemnize marriages. If the second marriage is void because the accused knowingly contracted it without complying with legal requirements as the marriage license. or was shown to be sterile such that the woman has had no child with him. That the offender contracted marriage. 3. the requirement of the law were not complied with. Article 351 PREMATURE MARRIAGE Acts punished: 1. except in marriage under exceptional circumstances. the crime punished under Article 350 is deemed absorbed in the bigamy. A widow who within 301 days from death of husband. that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent. Marriage license.250 Elements and Notes in Criminal Law Book II by RENE CALLANTA ELEMENTS: 1. intimidation or fraud The requirements of the law for a valid marriage are: 1. he should not be guilty of bigamy because otherwise. got married or before her delivery. 3. That he knew at the time that a. or b. Authority of the person performing the marriage. If this reason does not exist because the former husband is impotent. that is. although he was previously married. 2. intimidation or fraud. . Note: Circumstance qualifying the offense: if either of the contracting parties obtains the consent of the other by means of violence. The law further provides that for accused to be liable under this article.
unless in the meantime she has given birth to a child. 7. Slander (Art. Prohibited publication of acts referred to in the course of official proceedings (Art. 357). 4. real or imaginary or any act. Intriguing against honor (Art. 356). Threatening to publish and offer to prevent such publication for a compensation (Art. or a vice or defect.251 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 84 of the Civil Code provides that no marriage license shall be issued to a widow until after 300 days following the death of her husband. Incriminating innocent person (Art. 358). or one who is dead. or circumstances. That it must be malicious. 6. condition. status or circumstances tending to cause the dishonor. 5. or any act. discredit or contempt of the person defamed. That the imputation must be directed at a natural or juridical person. Article 352 PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY Act punished: performance of any illegal marriage ceremony by a priest or minister of any religious denomination or sect or by civil authorities TITLE THIRTEEN CRIMES AGAINST HONOR Crimes against honor 1. 2. Libel is a public and malicious imputation of a crime. That the imputation must tend to cause the dishonor. Libel by means of writings or similar means (Art. 3. 3. or of a vice or defect. 2. . 355). commission. Notes: 1. 4. Slander by deed (Art. That there must be an imputation of a crime. That the imputation must be made publicly. discredit or contempt of a natural or juridical person. or to blacken the memory of one who is dead Character of the words used to make it defamatory. 363). Article 353 LIBEL ELEMENTS: 1. 364). 5. omission. real or imaginary. status. condition. 359).
virtue or reputation. Distinction between malice in fact and malice in law Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory. Malice in law can be negated by evidence that. or to hold him up to public ridicule. malice may be presumed from the publication of the defamatory statement because no one has a right to invade another’s privacy. Malice in law – This is assumed and is inferred from the defamatory character of an imputation. It is enough that the alleged defamatory or libelous statement be presented to the court verbatim. It does not need proof. vs.252 Elements and Notes in Criminal Law Book II by RENE CALLANTA Words calculated to induce suspicion are more effective in destroying reputation than false charges directly made. which includes oral defamation. If the tenor of the utterance or statement is defamatory. proof of malice in fact will be admitted to take the place of malice in law. Ironical and metaphorical language is a favored vehicle for slander. In law. malice in fact requires evidence. The law presumes that the defamer made the imputation without good intention or justifiable motive. 767) Malice has been defined as a term used to indicate the fact that the defamer is prompted by personal ill or spite and speaks not in response to duty but merely to injure the reputation of the person defamed. 37 Phil. or are sufficient to impeach his honesty. When the defamatory statement or utterance is qualifiedly privileged. oral defamation or slander. for the complainant to prosecute the accused for libel. in fact. Malice in fact becomes necessary only if the malice in law has been rebutted. The utterance or statement would not be actionable because malice in law does not exist. So. O’Connell. there is no need to adduce evidence of malice in fact. the privileged character of a defamatory statement may be absolute or qualified. the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon. The presence and existence of personal ill-will or spite may still appear even if the statement is not defamatory. while malice in law does not require evidence. however. The presumption of malice attaches to the defamatory statement especially if it appears to be insulting per se. Malice in fact – This refers to malice as a fact.S. the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character. Therefore. Kinds of Malice. (U. A charge is sufficient if the words are calculated to induce the hearer to suppose and understand that the person against whom they are uttered is guilty of certain offenses. It is the court which will prove whether it is defamatory or not. So. When the privileged character is said to be absolute. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. where the defamatory acts may be presumed from the publication of the defamatory acts imputed refer to the private life of the individual. the malice in law is negated. the legal presumption of malice arises even without proof. he has to prove that the accused was actuated with malice (malice in fact) in making the statement. there is no need for the prosecution to present evidence of malice. Malice is presumed to exist in injurious publications . when the privileged character is qualified. In the crime of libel. Otherwise. Illustration: As regards the statements made by Congressmen while they are deliberating or discussing in Congress. 2.
204 SCRA 1) How to overcome the presumption of malice. “All the Marcoses – the father. The question is not what the writer of an alleged libel means but what the words used by him mean. that the communication made is privileged. 2. The meaning given by the writer or the words used by him is immaterial. unless they are identified in the same libel. the presumption of malice does not arise from the mere publication of the defamatory statement. that there is justifiable motive for making it. that the accused published the defamatory imputation with good intention. Publication is the communication of the defamatory matter to a third person or persons. It can also appear in the form of innuendos. Encarnacion.253 Elements and Notes in Criminal Law Book II by RENE CALLANTA Where the imputation is based upon matters of public interest. The question is not what the writer meant but what he conveyed to those who heard or read him (People vs. mother and daughter are thieves. 255 SCRA 692) The crime is libel if the defamation is in writing or printed media. If not named it must be shown that the description of the person referred to in the defamatory publication was sufficiently clear so that at least a 3rd person would have identified the plaintiff. (See Sazon vs. The presumption of malice is rebutted by showing : 1. 3." there will only be one libel because these particular Marcoses regarded as thieves are not specifically identified. Illustration: If a person uttered that “All the Marcoses are thieves. Writing a letter to another person other than the person defamed is sufficient publication. Court of Appeals. 4. there will be as many libels as there are persons dishonored.” There will be three counts of libel because each person libeled is distinctly dishonored. accused must prove the truth of the defamatory imputation in those cases wherein truth is a defense. Person libeled must be identified. If the offender said. and 4. But the publication need not refer by name to the libeled party. When a libel is addressed to several persons. A matter of public interest is common property. The crime is slander or oral defamation if it is not printed. This discussion leads to the conclusion that the determination of libelous meaning is left to the good judgment of the court after considering all the circumstances which lead to the utterance or publication of the defamatory statement. Publication is the communication of the defamatory matter to some third person/s 3. honesty and reputation of the offended party. even though the libel was committed at one and the same time. as when the offender resorts to underserved praises or satirical method of impeaching the virtue. the delivery of a defamatory writing to a typesetter is sufficient publication. Malice in fact comes into play when the statement made is not defamatory per se. If the offended parties in the libel were distinctly identified. there will only be one count of libel. So. even if there are several persons offended by the libelous utterance or statement. .
Poof of truth of a defamatory imputation is not even admissible in evidence. A person who repeats a slander or libelous publication heard or read from another is presumed to indorse it. even a compliment which is undeserved. there will only be one count of libel. (Lacsa vs. political and economic status in the community which is too well known to all concerned. virtue or reputation. you cannot consider one libel as giving rise to several counts of libel. 2. the imputation is not admissible. 161 SCRA 427). the question is not what the offender means but what the words used by him mean. One is liable for publication of defamatory words against another although he is only repeating what he heard and names the source of his information. the publication is deemed libelous (Jimenez vs. Where the comments are worded in praise of the plaintiff. et al. It was published with good motives. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. Republication of defamatory article is punishable. those persons dishonored must be identified. In order that one defamatory utterance or imputation may be considered as having dishonored more than one person. the person defamed need not be expressly identified.. C. but the import conveyed by the entirety of the language to the ordinary reader. Reyes. 2. ( Sazon vs. 2638) Criterion to determine whether statements are defamatory 1) words are calculated to induce the hearers to suppose and understand that the person against who they are uttered were guilty of certain offenses. CA. When the offended party is a government employee. .(P v Encarnacion) The test of libelous meanings is not the analysis of a sentence into component phrases with the meticulous care of the grammarian or stylist. 27 SCRA 52) Even if what was imputed is true. 55 O. As a matter of fact. (People vs. In libel cases. 255 SCRA 692) Praises undeserved are slander in disguise. Otherwise.254 Elements and Notes in Criminal Law Book II by RENE CALLANTA If you do not know the particular persons libeled.A. Requisites of defense in defamation 1. 5. unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. or to hold the person up to public ridicule(US v O’Connel) 2 )construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer. the crime of libel is committed unless one acted with good motives or justifiable end. even if the act or omission imputed does not constitute a crime. or are sufficient to impeach their honesty. has been held to be libelous. like describing him with qualities which plaintiff does not deserve because of his social. Salumbides and Reanzares. are which intended are intended to ridicule rather than praise him. If it appears that the matter charged as libelous is true. FAC. When proof of truth is admissible 1. Other than these. To presume publication there must be a reasonable probability that the alleged a libelous matter was thereby exposed to be read or seen by 3rd persons..G. provided if its related to the discharged of his official duties. Note that in libel. It is enough that he could possibly be identified because “innuendos may also be a basis for prosecution for libel.
Baja. (People vs. If a crime is a private crime. An action for libel allegedly directed against a group of sugar planters cannot be done by resort to filing a class suit as each victim has his specific reputation to protect. The burden of proof has not only been shifted to the plaintiff in libel. Libel -false accusation need not be made under oath Perjury -false accusation is made under oath Newsweek v IAC Newsweek portrayed the island province of Negros Occidental as a place dominated by big landowners. The publisher is limited only to the narration of what had taken place even if the report contains defamatory and injurious matter affecting another person. the statement may be considered privileged. without malice and just adequate enough to protect his good name. HELD: Dismissed. A complaint from the offended party is necessary. (Lu Chu Sing.. Mendoza. Where malice cannot be inferred from false defamatory statements. 669) Libel in answer to another libel is not a defense. 206. 40 O. 74 O. with respect to facts related to the discharge of his official duties. Secondly. et al. Plaintiffs are associations of sugarcane planters. 5607) The fair and true report of official proceedings refer to proceedings in the three branches of government. 6 Phil. It was for justifiable ends. the fact that a communication is privileged does not mean that it is not actionable.A.G. it cannot be prosecuted de officio. Defamatory remarks directed at a group of persons are not actionable unless the statements are allembracing or sufficiently specific for victim to be identifiable. In this case. Rule regarding Public Officers: Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their official duties will not constitute libel if the accused proves the truth of the imputation. it is a matter of defense. it should now be emphasized that ‘actual malice” is now required to be proven. each of the plaintiffs has a separate and distinct reputation in the community. legislative and executive. the specific victim must be identifiable. Malice is now understood to mean publication with knowledge of falsehood or reckless disregard of the statement’s veracity. . but proof of malice must now be clear and convincing.255 Elements and Notes in Criminal Law Book II by RENE CALLANTA 3. It is enough to rely on presumed malice in libel cases involving a public official or public figure. Lu Tiong Gui. C. (Pellicena vs. Gonzales. to wit: judicial. In the first place. To maintain a libel suit. But any attack upon the private character of the public officers on matters which are not related to the discharge of their official functions may constitute Libel. 50) If the defamatory imputation is in the nature of self-defense under Article 11 of the Revised Penal Code such that the publication was done in good faith. but proof has not only been shifted to the plaintiff in libel. With his jurisprudence.G. People vs. vs. 76 Phil. the ruling appears to be the true only if the offended party is a government employee. The privileged character simply does away with the presumption of malice which the prosecution has to prove in such a case. Case Doctrines: The fact that a communication is privileged is not a proper ground for the dismissal of a complaint for libel.
vs. Absolutely privileged – not actionable even if the actor has acted in bad faith b. however. Under Article 354. Under our libel law. Qualifiedly privileged – those which although containing defamatory imputations could not be actionable unless made with malice or bad faith When the defamatory imputation comes under the criteria of an absolute privileged communication. moral or social duty to make the communication or at least he had an interest to be upheld 2. or superior. comes into play when the defamatory statement is a conditional or qualified privileged communication. CFI of Rizal. moral or social duty. defamatory remarks against government employees with respect to facts related to the discharge of their official duties will not constitute libel. if no good intention and justifiable motive for making it is shown Exception: a. the right of the press to criticize public officers does not authorize defamation.256 Elements and Notes in Criminal Law Book II by RENE CALLANTA libel is not committed for as long as what is contained is a fair and true report of the proceedings. supra). if defendant is able to prove the truth of the imputations. which are not relevant or related to the judicial. there is absence of malice in law which is presumed in all defamatory imputations. private communication in performance of legal. Bustos. then the accused can file a demurrer to evidence. (U. If after the prosecution has presented its evidence. that the statements in the communication are made in good faith without malice in fact . that the communication is addressed to an officer or a board. supra. it becomes evident that the defamatory statement was made by the accused because of a legal. the publisher becomes liable when he makes comments or remarks upon the private character of person. Privileged communication as categorized in this discussion is a matter of defense. It is not a ground for a motion to quash after the arraignment of the accused. the presumption of malice under Article 354 has no application. moral or social duty Requisites 1. (See Mercado vs. 116 SCRA 93). Article354 REQUIREMENT OF PUBLICITY Kinds of privileged communication a. legislative or executive proceedings. General Rule: Every defamatory imputation is presumed malicious even if it be true. Court of Appeals. Sazon vs. having some interest or duty on the matter 3. The presumption of malice. moral or social duty. To overcome this presumption of malice in law. that the person who made the communication had a legal.S. the defamer must prove during the proceeding that the defamatory imputation was committed because of a legal. as in the meantime. But any attack on the private character of the officer on matters which are not related to the discharge of his official functions may constitute libel since under our laws.
Writing.” “If the comment is an expression of opinion based on established facts. made in good faith. In the enumeration above. Printing. that it is made in good faith that it is made without any comments or remarks Doctrine of fair comment “A fair comment on matters of public interest is included and is covered by the mantle of privileged communication which constitutes a valid defense against libel and slander. 3. ( Borjal vs. or of a statement. Engraving.A. CA. 301 SCRA 1 ) Santos v CA HELD: No malice. probably because at the time the Revised Penal Code was conceived. 2. that the publication of a report of an official proceeding is a fair and true report of a judicial. Painting. report. or of any other act performed by a public officer 2. (People vs. it cannot become less so merely because a private individual is involved. 10.. television is not included. However. 7. 6. Lithography. he simply furnished the readers with the info that a complaint has been filed against the brokerage firm and reproduced the pleading verbatim with no embellishments. Article 355 LIBEL BY MEANS OF WRITING OR SIMILAR MEANS A libel may be committed by means of – 1. C. or other official proceedings which are not of confidential nature. Casten. “or any similar means” which easily qualifies television is such species or category. No. the Court said. 1974) . G. 5.R. then it is immaterial that the opinion happens to be mistaken. without any comments and remarks Requisites 1. or speech delivered in said proceedings. the public focus is on the conduct of the participants and not on their prior anonymity or notoriety. 4. legislative. or Any similar means. television had not yet been invented.257 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. The public primary interest is in the event. Theatrical exhibition. Photograph. fair and true report.” Further explaining the right to comment on a public issue. Radio. as long as it might be reasonably inferred from the facts. 8. Cinematographic exhibition. 9. 07924-CR promulgated December 13. “If a matter is a subject of public or general interest. the law provides. 3.
columnist or duly accredited reporter of any newspaper. The gravamen of the crime is the intent to extort money or other things of value. Note: Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. He wrote to the BOD and to Marquez. Offering to prevent the publication of such libel for compensation or money consideration. He caused to publish the second letter. That he publishes facts connected with the private life of another. That the offender is a reporter. or offering to prevent the publication of. That such facts are offensive to the honor. or other members of his family. such character was lost when it was published. blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. it involves conjugal troubles and quarrels because of infidelity. under Article 356. Under Republic Act No. Granting that the letter was privileged communication. 3. Threatening another to publish a libel concerning him. HELD: Letter is not privileged communication. Blackmail – In its metaphorical sense. It involves the unlawful extortion of money by appealing to the fear of the victim. written out of a duty of an officer towards the members. through threats of accusation or exposure. 857) Blackmail is possible in (1) light threats under Article 283. Lacsa v IAC Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be president. No. 38 Phil. virtue and reputation of said person. With its provisions. Act. It contemplates of two offenses: a threat to establish a libel and an offer to prevent such publication. adultery or crimes involving chastity. the publisher. 58. magazine or periodical of general circulation cannot be compelled to reveal the source of any news report information appearing in the said publication which was related to him in confidence unless the court or a house or committee of Congress finds that such revelation is demanded by the security of the State. (US v. facts which are offensive to the honor. To be classified as such it must be free from malice. Eguia. 2.. or his parents. Two words are expressive of the crime – hush money. . Article 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS ELEMENTS: 1. spouse. Article 357 has come to be known as the “Gag Law. et al. Occasionally. a libel for compensation. daily or magazine. But these must refer to facts which are intimately related to the offended party’s family and home. editor or manager of a newspaper. editor. virtue and reputation of persons. editors or managers of newspapers from publishing articles containing facts connected with the private life of an individual. and (2) threatening to publish. child. 1477. amending Rep.” It prohibits reporters.258 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 356 THREATENING TO PUBLISH LIBEL AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION Acts punished 1. 2.
3. Note that slander can be committed even if the defamatory remark was done in the absence of the offended party. 37 O. It is viewed more as a threat on the part of the accused to manifest and emphasize a point. oral defamation is committed (P v Salleque) The word “puta ” does not impute that the complainant is prostitute. Atienza. Court of Appeals. 173 SCRA 645). (Reyes vs. G. (People vs. 2. People. Other circumstances like the presence of important people when the crime was committed.R. discredit or contempt upon the offended party. 26. L-19857. Notes: . (People vs. 1106) Words uttered in the heat of anger constitute light oral defamation (P v Doronilla) If the utterances were made publicly and were heard by many people and the accused at the same time levelled his finger at the complainant. It is seldom taken in its literal sense by the hearer. 1968 ) It is a common expression of anger or displeasure. action of a serious and insulting nature (Grave slander) 2. 27 SCRA 686) Article 359 SLANDER BY DEED ELEMENTS: 1. the social standing and position of the offended party are factors which may influence the gravity and defamatory imputation (Victorio vs. That such act casts dishonor.G. light insult or defamation – not serious in nature (simple slander) Factors that determine gravity of the offense: a) expressions used b) personal relations of the accused and the offended party c) circumstances surrounding the case Notes: The gravity of oral defamation depends not only on the expressions but also on the personal relation of the accused with the offended party.A.259 Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 358 ORAL DEFAMATION / SLANDER Two Kinds of Oral Defamation: 1. Oct. That such act is performed in the presence of other person or persons. C. Clarin.. That the offender performs any act not included in any other crime against honor. No.
Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt. author or editor of a book or pamphlet c. The crowd laughed. It is therefore in this concept that proprietors and editors of periodicals are also made responsible . Slander by deed refers to performance of an act. Unjust Vexation-irritation or annoyance/anything that annoys or irritates without justification. c. editor or business manager of a daily newspaper magazine or serial publication(par. and Grave slander by deed. etc.2) d. Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in Art335 of RPC on rape i. (P v Costa) If the acts committed against the offended party caused her physical injury which did not require medical attendance. which is of a serious nature. It is the undue publication of the defamatory imputation which makes it a crime. not use of words. then the crime would be maltreatment which is classified as slight physical injuries. offended party under 12 yrs of age+lewd designs Article 360 PERSONS RESPONSIBLE FOR LIBEL Who are liable: a. person who publishes. b. that is. P v Motita Accused held a mirror between the legs of complainant to reflect her private parts. c. contempt and ridicule. a teacher. Whether a certain slanderous act constitutes slander by deed of a serious nature or not. Guilty of slander by deed. in the presence of many people has put her to dishonor. Two kinds of slander by deed 1. depends on the social standing of the offended party. Distinctions: a. use of force or intimidation ii. deprivation of reason or rendering the offended unconscious iii. Simple slander by deed. discredit or contempt upon another person. 2. exhibits or causes the publication or exhibition of any defamation in writing or similar means(par. the occasion. The acts of slapping and boxing the woman. owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication (US v Ortiz) A defamatory statement by itself is not a crime.1) b. the circumstances under which the act was committed.260 Elements and Notes in Criminal Law Book II by RENE CALLANTA Slander by deed is a defamation committed by the offender against the complainant through the performance of any act which casts dishonor. b.
concubinage. L-47880. 1979) Note: Offended party must file complaint for defamation imputing a crime which cannot be prosecuted de oficio (e. (People vs. seduction.where article was printed or 1st published In order to prevent controversies as to the venue of criminal actions for written defamation. abduction. the place where the written defamation was printed and first published. Hon. Hechanova.RTC of the city/province where he held office at the time of offense OR . actual damages need not be established. only defamation consisting of the imputation of private offenses such as adultery.RTC of Manila OR . 76 Phil. Sayo. April 30. (Lu Chu Sing vs. abduction and acts of lasciviousness shall be prosecuted by the offended party by filing a complaint. vs. (Agbayani. the crime is considered a public crime which may be prosecuted de oficio. the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer .city/province where the article is printed and 1st published b. Where the publication is libelous per se. causes dishonor. by its very nature. where the libelous article is printed and 1st published OR b.g. Venue of criminal and civil action for damages in cases of written defamation: a. rape.RTC of province/city where he actually resides at the time of the crime . disrepute and discredit and injury to the reputation of the offended party. where any of the offended parties actually resides at the time of the commission of the offense Libel cases are within the original and exclusive jurisdiction of the Regional Trial Courts. adultery. Otherwise . if his office is in the City of Manila . seduction. Soriano v IAC The Philippines follows the multiple publication rule which means that every time the same written matter is communicated.. It is something inherent and natural in the crime of libel. the information or complaint must contain averments as to whether the offended party is a private or public officer at the time of the commission of the offense and whenever possible. et al. 669) Article 361 PROOF OF THE TRUTH Admissible when: a. Lu Tiong Gui. concubinage.261 Elements and Notes in Criminal Law Book II by RENE CALLANTA for the appearance of defamatory matters in any newspaper under their management. This is so because libel. Inferior courts have no jurisdiction to try written defamation. et al.. 54 SCRA 101) Where one of the offended parties is a public officer: a. and acts of lasciviousness) Under the last paragraph of Article 360. Outside of this enumeration by law.where the article is 1st published Where one of the offended parties is a private individual: . such communication is considered a distinct and separate publication of libel.
rumors. The main thrust of the law is to punish libelous remarks or comments on matters which are privileged. more than a mere utterance is required. La Vanguardia. 45 Phil 211 ) Article 362 LIBELOUS REMARKS Libelous remarks or comments on privileged matters (under Art. 2. So. It must rest upon positive direct evidence. it appears that the matter charged as libelous is TRUE (for situations 1 and 2 above) b. Two Kinds: a. therefore.That the offender performs an act. U. But it may serve to mitigate the penalty imposed on him or lessen his civil liability. It is defined as an act and. to commit this crime. even if the act or omission imputed does not constitute a crime provided it is related to the discharge of his official duties Requisites for Acquittal: a. . 706) INCRIMINATORY MACHINATIONS Article363 INCRIMINATING INNOCENT PERSON ELEMENTS: 1. ( Phee vs. 3. upon which a definite finding may be made by the court (US v Sotto) Admission on the part of the accused that he committed a mistake will not serve to free him from criminal liability. a newspaper reporter who distorts facts connected with official proceedings or who adds comments thereon as to cast aspersion on the character of the parties involved. (Dorr vs. or suspicion. *This article is a limitation to the defense of privileged communication. perjurious (if made under oath and is false) b. it was published with good motives and for a justifiable end (for situation 1 only) Notes: The proof of the truth of the accusation cannot be made to rest upon mere hearsay. the offended party is a government employee..That such act does not constitute perjury. planting evidence Note: article is limited to planting evidence and the like This crime cannot be committed through verbal incriminatory statements. 354) if made with malice in fact will not exempt the author and editor. S. defamatory or ii.That by such act he directly incriminates or imputes to an innocent person the commission of a crime. is guilty of libel even through the defamatory matter is published in connection with a privileged communication. if made with malice in fact. making a statement which is b i.262 Elements and Notes in Criminal Law Book II by RENE CALLANTA b. 11 Phil.
as long as the source is identified. and passed it to another in order to cause dishonor to the complainant’s reputation. and without subscribing to the truth thereof. L-20721. Where the source of polluted information can be traced and pinpointed. No. even though he repeats the libelous statement as coming from another.. G. If the offender made the utterance. The offender. et al. if said to the person himself it is slander. the crime committed by that offender is slander. . If the statement in writing is not under oath.263 Elements and Notes in Criminal Law Book II by RENE CALLANTA If the incriminating machination is made orally. In incriminating an innocent person. The offender does not employ written or spoken words. Distinction between intriguing against honor and incriminating an innocent person: In intriguing against honor. where the source of the defamatory nature of the utterance is known. the act is one of Intriguing Against Honor. (People vs. repeats the same and pass it on to another. April 30. the crime may be falsification if the crime is a material matter made in a written statement which is required by law to have been rendered. this has been interpreted to be possible only in the so-called planting of evidence. crafty and secret ploy which produces the same effect. the crime may be perjury if there is a willful falsity of the statements made. But where the source or the author of the derogatory information can not be determined and the accused borrows the same. without ascertaining the truth of a defamatory utterance. the offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime. Intriguing against honor is referred to as gossiping. and offender makes a republication thereof. pictures or caricatures to ridicule the victim. Committed by saying to others an unattributable thing. Distinction between intriguing against honor and slander: When the source of the defamatory utterance is unknown and the offender simply repeats or passes the same. the offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person. There is such a crime as incriminating an innocent person through unlawful arrest. passes it to others. to the damage of the offended party. he uses some ingenious. Rather.R. Alagao. If the incriminatory machination was made in writing and under oath. the crime may be slander or oral defamation. and the accused adopted as his own the information he obtained. b. the act is Slander and not Intriguing Against Honor. Who started the defamatory news is unknown. 1966) Article 364 INTRIGUING AGAINST HONOR How committed: -by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person Notes: The crime is committed by resorting to any form of scheme or plot designed to blemish the reputation of a person. As far as this crime is concerned. the crime is intriguing against honor.
Wire Tapping Act Acts punished: 1) any person. time and place. to any other person Notes: a. You can only use the recording for the case for which it was validly requested. Peace officer is exempt if acts done under lawful order of the court. and c. There must be either a physical interruption through the wiretap or the deliberate installation of a device or arrangement in order to overhear. or any other such record or copies thereof of any communication or spoken word b) replays the same for any other person c)communicates the contents thereof. That there is inexcusable lack of precaution on the part of the offender. 2. wire record. intercept or record the spoken words. ELEMENTS OF SIMPLE IMPRUDENCE: . degree of intelligence. That the offender does or fails to do an act. or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie talkie or tape recorder 2) any person. Gaanan v IAC An extension phone is not one of those prohibited under RA 4200. 4. Information obtained in violation of the Act is inadmissible in evidence in any hearing or investigation. whether complete or partial. to secretly overhear. CRIMINAL NEGLIGENCE Article 365 ELEMENTS OF RECKLESS IMPRUDENCE: 1. whether or not a participant in the above-mentioned acts: a) knowingly possesses any tape record. his employment or occupation b. taking into consideration a. That material damage results. c. The extension phone was not installed for such purpose. intercept. other circumstances regarding persons. That the doing of or the failure to do that act is voluntary. b. That it be without malice. physical condition.264 Elements and Notes in Criminal Law Book II by RENE CALLANTA RA4200 The Anti . not authorized by all the parties to any private communication or spoken word a) taps any wire of cable OR b) uses any other device or arrangement. 5. disc record. 3.
if done maliciously. 2. the law imposes on the doer. the criminal negligence would only be simple. Reasonable foresight of harm. 3. had it been intentional. When by imprudence or negligence and with violation of the Automobile Law. This is so because under Article 3. the death of a person is caused. The penalties under Article 365 has no application in the following cases: 1. Failure to do so constitutes negligence. Did the defendant. Would a prudent man in the position of the person to whom negligence is attributed. 2. the penalty is prision correccional in its medium and maximum periods. in doing the alleged negligent act. Quasi-offenses punished 1. the penalty shall be that which is next lower in degree than that which should be imposed. That the damage impending to be caused in not immediate or the danger is not clearly manifest. foresee harm to the person injured? If so. 4. then he is guilty of negligence. a felony may result from dolo or culpa. Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony. 37 Phil. Distinction between reckless imprudence and negligence: The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability. or to take precaution against such result. 2. Causing through simple imprudence or negligence some wrong which.1 and 2 of Article 365. is the constitutive fact of negligence. would have constituted a light felony. 813) Test of Negligence. the imprudence is reckless. That there is lack of precaution on the part of the offender. the duty to refrain from the course of action. . would constitute a grave or less grave felony or light felony. If the danger that may result from the criminal negligence is clearly perceivable. When the penalty provided for the offense ifs equal or lower than that provided in pars. in the period which the court may deem proper to apply.265 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1. Smith. In this case. Causing damage to the property of another through reckless imprudence or simple imprudence or negligence. If it could hardly be perceived. 809. Committing through reckless imprudence any act which. Notes: Test for determining whether or not a person is negligent of doing of an act which results in injury or damages to another person or his property. (Picart vs. use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not. It is practically settled that criminal negligence is only a modality in incurring criminal liability. followed by ignoring the admonition borne of this provisions.
8689. C. 2) Failure to lend on the spot assistance to victim of his negligence: penalty next higher in degree. The court found the concurrent or successive negligent act or omission of the two drivers as the direct and proximate cause of the injury caused to the offended party. 7763) Last clear chance doctrineThe contributory negligence of the injured party will not defeat the action if it be shown that the accused might. the other driver who has the right of way has the duty to stop his motor vehicle in order to avoid a collision. It is against public policy to invoke the negligence of another to escape criminal liability. Rep.G. 75 O. (People vs. P v Carillo 13 yr old girl dies 3 days after surgery due to an overdose of Nubain which triggered a heart attack that caused brain damage. 1979. 4) Contributory negligence—not a defense..A. who. Jr. Desalis. Taradji. In such a case. Negligence becomes punishable when it results in the commission of a crime. Both were declared guilty for the injury suffered by the third person.266 Elements and Notes in Criminal Law Book II by RENE CALLANTA 1) Art. Any accident therefore which takes place in said corner gives to rise to the presumtion of negligence on the part driver of the motor vehicle running thru-street has already reached the middle part of the intersection. (Lantok.A. HELD: Guilty of simple negligence resulting to .. Hon.64 on mitigating and aggravating circumstances not applicable. is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice. 57 O. et al.” In the case of People vs. by the exercise of reasonable care and prudence. the two accused were drivers of two speeding vehicles which overtook vehicles ahead of them and even encroached on the other’s lane without taking due precaution as required by the circumstances. When negligence does not result in any injury to persons or damage to property. Doctrine of Pre-emption It is a rule in collision cases which the driver of a motor vehicle to make a full stop when crossing a thru-street. only mitigating The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence.G. if charged under Art 365 is only qualifying and if not alleged cannot even be an aggravating circumstance. by the negligence of another. L-37396. April 30. 1520) The above-mentioned doctrine should be reconciled with the doctrine of “concurrent proximate cause of two negligent drivers. have avoided the consequences of the negligence of the injured party Emergency ruleAn automobile driver. 3) Abandoning usually punishable under Art 275. Quiñones. vs. C. (People vs. The court could not determine in what proportion each driver contributed to the injury.G.  460) P v Cano Negligence is a quasi-offense. 44 O. then no crime is committed. Gorgonio. What is punished is not the effect of the negligence but the recklessness of the accused. 3 C..A.
.A. but because of the very slow pace of the vehicle.. Eleazar ) . to inform the parents of the child’s true condition. C. Accused is not criminally liable for the death or injuries caused by his negligence to trespassers whose presence in the premises he was not aware of.. if the maximum speed limit is 80 kilometers per hour and the vehicle driven at 30 kilometers per hour. In negligence. The degree of care required of a motorist is not governed by speed limits but by the circumstances and conditions obtaining in the place at the particular time. for example. Since this is the mode of incurring criminal liability. it shows recklessness and disregard of traffic laws and regulations. accused was a truck driver. throwing off two of the passengers who boarded the truck without his knowledge. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence. the truck turned turtle. C. Cuadra was acquitted of the crime of reckless imprudence resulting in homicide and physical injuries. he and his co-accused failed to monitor and provide close patient care. 58 O. Caluza. If the criminal negligence resulted. 8330) Driving within the speed limit is not a guaranty of due care.267 Elements and Notes in Criminal Law Book II by RENE CALLANTA homicide.A. C. the observation of the speed limit will not be acceptable evidence of due care.G. Force majeure has reference to an event which cannot be foreseen or which being foreseen. one of them died. So there would only be one information to be filed. 67 O. So. Unknown to him. to prove that they exercised necessary and appropriate degree of care and diligence to prevent the condition. Carillo was the anesthesiologist.G.A. In his effort to return the truck to the center of the road. As the event is foreseeable. 53 O. serious physical injuries and slight physical injuries. As a consequence. It implies an extraordinary circumstance independent of the will of the actor or perpetrator. Cuadra. the immediate personal harm or damage to property is perceivable and can be prevented by the exercise of reasonable care. even if there are several results. that is where double jeopardy would arise. several persons boarded his truck and while driving along a slippery road which has a declinations of 25 degrees. the left front wheel of the truck fell into a ditch. Buearano v CA Conviction of the accused in the charge of slight and less serious physical injuries through reckless imprudence constitutes double jeopardy to the charge of the crime of damage to property through reckless imprudence. in homicide. the accused may only be prosecuted under one count for the criminal negligence. In the case of People vs. You are not complexing slight when you join it in the same information. is inevitable. if there is only one carelessness. If you split the criminal negligence.G. But when the overtaking is done from right. the failure of the actor to use reasonable care to prevent harm or damage constitutes reckless imprudence or simple negligence. do not join only the homicide and serious physical injuries in one information for the slight physical injuries. Songalla. an accident occurs. Do not separate the accusation from the slight physical injuries from the other material result of the negligence. It is likewise so when the overtaking is done while another vehicle is approaching from the opposite direction. (People vs. 8060) Force majeure in relation to negligence. (people vs. 7265. This is a violation of Section 59(b) of the Motor Vehicle Law (People vs. even if the negligence may bring about resulting injuries which are slight. Speed limits impose the maximum speed which should not be exceeded. Overtaking of another vehicle is a normal occurrence in driving.
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